ORAL ARGUMENT HAS NOT BEEN SCHEDULED

In the United States Court of Appeals

for the Ninth Circuit
Nos. 19-72915 & 19-73079
(Consolidated)

NATIONAL PARKS CONSERVATION ASSOCIATION,

Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION,
Respondent,
EAGLE CREST ENERGY COMPANY,
Respondent-Intervenor.

ON PETITION FOR REVIEW

OF ORDERS OF THE
FEDERAL ENERGY REGULATORY COMMISSION
AND ON PETITION FOR WRIT OF MANDAMUS

BRIEF FOR RESPONDENT

FEDERAL ENERGY REGULATORY COMMISSION

DAVID MORENOFF
ACTING GENERAL COUNSEL
ROBERT H. SOLOMON
SOLICITOR
JARED B. FISH
ATTORNEY
FOR RESPONDENT
FEDERAL ENERGY REGULATORY
COMMISSION
WASHINGTON, D.C. 20426

APRIL 6, 2020
 TABLE OF CONTENTS

STATEMENT OF THE ISSUES ................................................................ 1

STATUTORY AND REGULATORY PROVISIONS.................................. 4

JURISDICTIONAL STATEMENT ............................................................ 4

STATEMENT OF FACTS ........................................................................... 5

I. Background ........................................................................................ 5

A. The Commission’s 2014 licensing of the Eagle Mountain

Project ....................................................................................... 5

B. Eagle Crest’s requests for extensions of time to commence

and complete construction ....................................................... 8

II. The Commission orders on review .................................................. 12

SUMMARY OF ARGUMENT .................................................................. 15

ARGUMENT ............................................................................................. 18

I. Standards of review ......................................................................... 18

A. Petition for review of the Commission’s denial of

intervention ............................................................................ 18

B. Petition for writ of mandamus ............................................... 20

II. The Association lacks Article III standing ..................................... 22

A. The Association’s injury is not fairly traceable to the May

2019 Extension Order ............................................................ 23

B. The Association cannot collaterally attack the 2014 License

Order ....................................................................................... 26

III. The Commission reasonably interpreted the Federal Power Act

and its own regulations in denying the Association’s motion to
intervene .......................................................................................... 33

i
 A. The Commission’s rules and regulations vest it with
discretion to limit the types of proceedings affording a right
to intervene ............................................................................. 34

1. Rule 214 establishes who may intervene and how, not

whether the right exists in a particular type of
proceeding...................................................................... 35

2. The Commission reasonably determined that

extension-of-time requests do not trigger notice and
intervention ................................................................... 36

B. The Commission has followed a consistent policy

for decades .............................................................................. 49

C. The Commission’s interpretation aligns with the Federal

Power Act’s purposes .............................................................. 54

IV. The Association’s mandamus petition is meritless ........................ 57

A. The Association can obtain its desired relief through its

petition for judicial review (No. 19-72915) ............................ 57

B. The Commission properly applied the 2018 amended version

of the Federal Power Act to Eagle Crest’s
extension requests .................................................................. 61

1. The Commission reasonably interpreted the Federal

Power Act to allow extensions of time after a license
deadline has passed ...................................................... 62

2. The Commission’s application of the October 2018

version of Section 13 to Eagle Crest’s extension
requests was not retroactive ......................................... 68

3. The October 2018 amended version of Section 13

authorized Eagle Crest’s extension requests ............... 70

CONCLUSION .......................................................................................... 74

ii
 TABLE OF AUTHORITIES
COURT CASES: PAGE
Allen v. Wright,
468 U.S. 737 (1984) ..................................................................... 23
Americopters, LLC v. FAA,
441 F.3d 726 (9th Cir. 2006) ............................................27, 30, 33
Asarco LLC v. Atl. Richfield Co.,
866 F.3d 1108 (9th Cir. 2017) ..................................................... 43
Bauman v. U.S. Dist. Court,
557 F.2d 650 (9th Cir. 1977) ....................................................... 21
Cal. Trout v. FERC,
572 F.3d 1003 (9th Cir. 2009) .................... 4, 18–20, 34, 49, 54, 56
Cheney v. U.S. Dist. Court,
542 U.S. 367 (2004) ..................................................................... 20
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.
467 U.S. 837 (1984) ..................................................................... 74
City of Tacoma v. Taxpayers of Tacoma,
357 U.S. 320 (1958) ..................................................................... 18
Coalition for Responsible Regulation, Inc. v. EPA,
684 F.3d 102 (D.C. Cir. 2012) ...................................................... 24
Covelo Indian Cmty. v. FERC,
895 F.2d 581 (9th Cir. 1990) ................................................. 19, 28
Ctr. for Biological Diversity v. EPA,
847 F.3d 1075 (9th Cir. 2017) ...................................... 4, 27, 30, 32
Daniel v. Nat’l Park Serv.,
891 F.3d 762 (9th Cir. 2018) ....................................................... 22
Fall River Rural Elec. Coop., Inc. v. FERC,
543 F.3d 519 (9th Cir. 2008) ................................................. 20, 40
Fallini v. Hodel,
783 F.2d 1343 (9th Cir. 1986) .................................................... 21
iii
 TABLE OF AUTHORITIES
COURT CASES: PAGE
FERC v. Elec. Power Supply Ass’n,
136 S. Ct. 760 (2016) .................................................. 20, 49, 56, 67
Fogarty v. United States,
340 U.S. 8 (1950) ................................................................... 72–73
Green Island Power Auth. v. FERC,
497 F. App’x 127 (2d Cir. 2012) ............................................ 47, 51
Green Island Power Auth. v. FERC,
577 F.3d 148 (2d Cir. 2009) ........................................19, 45, 58–59
Greenwood v. FAA,
28 F.3d 971 (9th Cir. 1994) ......................................................... 66
Gulfstream Aerospace Corp. v. Mayacamas Corp.,
485 U.S. 271 (1988) ..................................................................... 20
Humane Soc’y of U.S. v. Locke,
626 F.3d 1040 (9th Cir. 2010) ............................................... 73–74
Husyev v. Mukasey,
528 F.3d 1172 (9th Cir. 2008) .................................................... 39
In re Cal. Power Exch. Corp.,
245 F.3d 1110 (9th Cir. 2001) .................... 4, 20–22, 30, 57, 62, 73
In re Van Dusen,
654 F.3d 838 (9th Cir. 2011) ................................................ 22, 66
Keating v. FERC,
569 F.3d 427 (D.C. Cir. 2009) ...................................................... 64
Kisor v. Wilkie,
139 S. Ct. 2400 (2019) 44, 49, 54, 56
La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest,
624 F.3d 1083 (9th Cir. 2010) ............................................... 23–24

iv
 TABLE OF AUTHORITIES
COURT CASES: PAGE
Landgraf v. USI Film Products,
511 U.S. 244 (1994) ..................................................................... 69
Mac’s Shell Serv., Inc. v. Shell Oil Prod. Co. LLC,
559 U.S. 175 (2010) ..................................................................... 38
Mo. River Energy Servs. v. FERC,
918 F.3d 954 (D.C. Cir. 2019) ...................................................... 66
Narragansett Indian Tribal Historic Pres. Office v. FERC,
949 F.3d 8, (D.C. Cir. 2020) ......................................................... 24
Nat’l Comm. for New River, Inc. v. FERC,
433 F.3d 830 (D.C. Cir. 2005) ................................................ 25–26
Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv.,
422 F.3d 782 (9th Cir. 2005) ....................................................... 19
N. Colo. Water Conservancy Dist. v. FERC,
730 F.2d 1509 (D.C. Cir. 1984) .............................................. 19, 59
New Energy Capital Partners, LLC v. FERC,
671 F. App’x 802 (D.C. Cir. 2016) ................................................ 19
Nw. Envtl. Def. Ctr. v. Bonneville Power Admin.,
477 F.3d 668 (9th Cir. 2007) ....................................................... 60
Or. Natural Res. Council v. Harrell,
52 F.3d 1499 (9th Cir. 1995) ....................................................... 21
Pac. Gas & Elec. Co. v. FERC,
464 F.3d 861 (9th Cir. 2006) ..................................... 27–28, 30–31
Pac. Gas & Elec. Co. v. FERC,
720 F.2d 78 (D.C. Cir. 1983) .............................................34, 40, 54
Palmieri v. New York,
779 F.2d 861 (2d Cir. 1985) ......................................................... 24

v
 TABLE OF AUTHORITIES
COURT CASES: PAGE
Pub. Serv. Comm’n of N.Y. v. FPC,
284 F.2d 200 (D.C. Cir. 1960) ................................................ 19, 59
Pub. Util. Comm’r v. Bonneville Power Admin.,
767 F.2d 622 (9th Cir. 1985) ....................................................... 61
Red Lion Broad. Co. v. FCC,
395 U.S. 367 (1969) ..................................................................... 72
San Diego Gas & Elec. Co. v. FERC,
913 F.3d 127 (D.C. Cir. 2019) ..................................................... 39
Scenic Hudson Pres. Conference v. FPC,
354 F.2d 608 (2d Cir. 1965) ............................................. 34, 54–55
Smith v. Pac. Properties & Dev. Corp.,
358 F.3d 1097 (9th Cir. 2004) ..................................................... 24
Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng’rs,
531 U.S. 159 (2001) ..................................................................... 72
Spokeo, Inc. v. Robins,
136 S. Ct. 1540 (2016) ................................................................. 22
Summers v. Earth Island Institute,
555 U.S. 488 (2009) ..................................................................... 24
United States v. Coca-Cola Bottling Co. of Los Angeles,
575 F.2d 222 (9th Cir. 1978) ................................................. 59–60
United States v. Dunn,
728 F.3d 1151 (9th Cir. 2013) ..................................................... 20
United States v. Guerrero,
693 F.3d 990 (9th Cir. 2012) ................................ 20–22, 57, 62, 73
United States v. Lewis,
611 F.3d 1172 (9th Cir. 2010) ..................................................... 20

vi
 TABLE OF AUTHORITIES
COURT CASES: PAGE
Urbina-Mauricio v. INS,
989 F.2d 1085 (9th Cir. 1993) ..................................................... 68
Util. Air Regulatory Grp. v. EPA,
573 U.S. 302 (2014) ..................................................................... 25
Wash. Envtl. Council v. Bellon,
732 F.3d 1131 (9th Cir. 2013) ................................................. 4, 23
Wilson v. U.S. Dist. Court for E. Dist. of Cal.,
103 F.3d 828 (9th Cir. 1996) ....................................................... 73
Yates v. United States,
135 S. Ct. 1074 (2015) ................................................................. 47
Ziffrin, Inc. v. United States,
318 U.S. 73 (1943) ................................................................. 68–69
ADMINISTRATIVE CASES:
Baldwin Hydroelectric Corp.,
84 FERC ¶ 61,132 (1998) ........................................................... 51
City of Alton, Ill.,
72 FERC ¶ 62,132 (1995) ........................................................... 66
City of Batesville,
97 FERC ¶ 61,114 (2001) .......................................................... 69
City of Summersville, W. Va.,
86 FERC ¶ 61,149 (1999) ........................................................... 52
Eagle Crest Energy Co.,
147 FERC ¶ 61,220 (2014) (“2014 License Order”) ........... 5–8, 55
Eagle Crest Energy Co.,
153 FERC ¶ 61,058 (2015)
(“2015 License Rehearing Order”) ........................................... 5, 8

vii
 TABLE OF AUTHORITIES
ADMINISTRATIVE CASES: PAGE
Eagle Crest Energy Co.,
167 FERC ¶ 61,117 (2019)
(“2019 Extension Order”) .............. 8–10, 12–13, 15, 63–65, 67, 70
Eagle Crest Energy Co.,
168 FERC ¶ 61,186 (2019)
(“2019 Rehearing Order”) 5, 9, 11, 12–15, 24, 27,
.................................... 29, 33–40, 42, 45–48, 50–53, 55–56, 60–62
Erie Boulevard Hydropower, L.P.,
131 FERC ¶ 61,036 (2010) ............................................. 47, 51–52
Fall Line Hydro Co., Inc.,
114 FERC ¶ 61,034 (2006) ................................................... 64–65
Felt Mills Energy Partners, L.P.,
87 FERC ¶ 61,094 (1999) ............................................... 51, 53–54
Indep. Cty., Ark.,
49 FERC ¶ 61,281 (1989) ........................................................... 69
Jewett City Elec. Light Plant,
65 FERC ¶ 62,227 (1993) ........................................................... 66
Kings River Conservation Dist.,
36 FERC ¶ 61,365 (1986) ..................................................... 50–52
Pac. Gas & Elec. Co.,
40 FERC ¶ 61,035 (1987) ........................................................... 51
Pub. Util. Dist. No. 1 of Okanogan Cty.,
160 FERC ¶ 61,094 (2017) ......................................................... 51

viii
 TABLE OF AUTHORITIES
STATUTES: PAGE
Administrative Procedure Act
5 U.S.C. § 706(2)(A) ........................................................ 20, 59–61
All Writs Act
28 U.S.C. § 1651 ............................................................................ 4
America’s Water Infrastructure Act of 2018, Pub. L. No. 115-270,
132 Stat. 3765 (2018) ...................................................... 11, 70–71
Federal Power Act
Section 6, 16 U.S.C. § 799 ..........................................36–37, 49, 66
Section 10, 16 U.S.C. § 803 ................................................... 34, 54
Section 13, 16 U.S.C. § 806 (2017) .........................9, 10–11, 61–64
Section 13, 16 U.S.C. § 806 (2018) ............................ 10–12, 61–64
Section 308, 16 U.S.C. § 825g ......................................... 34–35, 54
Section 313, 16 U.S.C. § 825l ....4, 6, 18, 25, 27–28, 33, 55–56, 58, 60–61
REGULATIONS:
18 C.F.R. § 4.35 ..........................................................13, 45–46, 52
18 C.F.R. § 4.200 ......................................................................... 37
18 C.F.R. § 4.202 ................................ 13–14, 37–38, 42, 44, 48, 66
18 C.F.R. § 6.3 ....................................................................... 64–65
18 C.F.R. § 16.9 ..................................................................... 45, 48
18 C.F.R. § 385.210 ..........................................................13, 36, 42
18 C.F.R. § 385.214 ....................................................35–36, 42, 56
18 C.F.R. § 385.2008 ................................................................... 66

ix
 TABLE OF AUTHORITIES
RULE: PAGE
Application for License for Major Unconstructed Projects and Major
Modified Projects; Application for License for Transmission Lines
Only; and Application for Amendment to License,
Order No. 184, 46 Fed. Reg. 55,926 (1981) .................... 38–39, 48
OTHER AUTHORITIES:
Third Annual Report of the Federal Power Commission (1923) ... 38, 50
Bureau of Land Management, Decision Approving Eagle Crest
Right-of-Way,
BLM Case File No. CACA-050946 (Aug. 1, 2018) ....................... 9

x
 GLOSSARY

2014 License Order Eagle Crest Energy Co., 147 FERC

¶ 61,220 (June 19, 2014), ER618–714

2015 License Rehearing Order Eagle Crest Energy Co., 153 FERC
¶ 61,058 (Oct. 15, 2015), SER11–58

2019 Extension Order Eagle Crest Energy Co., 167 FERC

¶ 61,117 (May 7, 2019), ER19–29

2019 Rehearing Order Eagle Crest Energy Co., 168 FERC

¶ 61,186 (Sept. 19, 2019), ER1–18

A Addendum

Br. Petition for Review of National Parks

Conservation Association

Commission or FERC Respondent Federal Energy

Regulatory Commission

Mandamus Pet. Petition for Writ of Mandamus of

National Parks Conservation
Association

P Internal paragraph number in a

FERC order

xi
 In the United States Court of Appeals
for the Ninth Circuit
Nos. 19-72915 & 19-73079
(Consolidated)

NATIONAL PARKS CONSERVATION ASSOCIATION,

Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION,
Respondent,
EAGLE CREST ENERGY COMPANY,
Respondent-Intervenor.

ON PETITION FOR REVIEW

OF ORDERS OF THE
FEDERAL ENERGY REGULATORY COMMISSION
AND ON PETITION FOR WRIT OF MANDAMUS

BRIEF FOR RESPONDENT

FEDERAL ENERGY REGULATORY COMMISSION

STATEMENT OF THE ISSUES

In 2009, Respondent-Intervenor Eagle Crest Energy Company

(“Eagle Crest”) filed an application with the Federal Energy Regulatory

Commission (“Commission” or “FERC”) to construct and operate a

hydroelectric project using an abandoned mine. When completed, the

Eagle Mountain Project (“Project”) would supply 1,300 megawatts of

zero-emission electric generating capacity. In June 2014, after weighing

the public need for the Project and its environmental impacts, the
Commission issued Eagle Crest a license to construct and operate the

Project (“2014 License Order”).

Under the Federal Power Act, an entity seeking judicial review of

the License Order was required to have party status in the licensing

proceeding. Numerous entities intervened in order to obtain that

status; Petitioner National Parks Conservation Association

(“Association”) was not one of them. In fact, even when the Commission

amended Eagle Crest’s license to extend the deadline for construction

from 2016 to 2018, the Association stayed silent.

It was not until the Commission exercised its authority to further

extend Eagle Crest’s construction deadline in 2019—after Congress

allowed it to do so in 2018—that the Association sought party status in

that proceeding. The Commission denied the Association’s motion to

intervene, explaining that neither the Federal Power Act nor its

regulations accommodate intervention in post-licensing proceedings

that consider only when an already-licensed project should be

constructed. The Commission also found that, were the Association to

succeed in upending that policy, Commission license orders would

effectively be subjected to untimely collateral attacks. Indeed, instead

2
of disputing the merits of extending the deadline to construct the

Project, the Association seeks intervention here to challenge the

Commission’s approval of the Project itself.

The questions presented for review are:

1. Did the Commission abuse its discretion in denying the

Association’s motion to intervene in Eagle Crest’s extension-of-

time proceeding, where the Federal Power Act, Commission

regulations, and past agency decisions allow intervention only

where the licensee’s proposal would significantly modify a

physical aspect of a licensed project, or adversely affect the

rights of property holders in a manner not contemplated by the

license?

2. Should the Court grant the extraordinary remedy of mandamus

relief, where the Association’s petition for review, if successful,

offers it meaningful relief through the possibility of a remand of

Eagle Crest’s extension-of-time proceeding, and where the

Commission explained the legal basis for granting the

extension?

3
 STATUTORY AND REGULATORY PROVISIONS

Pertinent statutes and regulations are reproduced in the

Addendum.

JURISDICTIONAL STATEMENT

The Court lacks jurisdiction over either of the Association’s

petitions (Nos. 19-72915 and 19-73079) because the Association lacks

Article III standing: The Association fails to allege an injury that is

fairly traceable to the post-licensing orders on review, rather than to the

Commission’s 2014 order authorizing the Project in the first place. Ctr.

for Biological Diversity v. EPA, 847 F.3d 1075, 1092 (9th Cir. 2017);

Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1139–40 (9th Cir. 2013).

If the Court disagrees and holds that the Association does have

standing, then review of its petition in No. 19-72915 is limited to

assessing whether the Commission abused its discretion in denying the

Association’s motion to intervene. 16 U.S.C. § 825l(b); Cal. Trout v.

FERC, 572 F.3d 1003, 1013 n.7 (9th Cir. 2009). As for the Association’s

petition for writ of mandamus in No. 19-73079, the Court has

jurisdiction under the All Writs Act. 28 U.S.C. § 1651; In re Cal. Power

Exch. Corp., 245 F.3d 1110, 1119 (9th Cir. 2001).

4
 STATEMENT OF FACTS

I. Background

A. The Commission’s 2014 licensing of the Eagle

Mountain Project

In June 2009, Eagle Crest filed an application with the

Commission for a license to construct and operate the Eagle Mountain

Pumped Storage Hydroelectric Project. Eagle Crest Energy Co., 153

FERC ¶ 61,058, P 3 (2015) (“2015 License Rehearing Order”), SER12.

The Project, which would occupy public and private lands at the

abandoned Eagle Mountain mine site in Riverside County, California,

would operate as a closed-loop pumped storage facility. Id.; Eagle Crest

Energy Co., 168 FERC ¶ 61,186, P 2 (2019) (“2019 Rehearing Order”),

ER1. Eagle Crest proposed filling two reservoirs on-site with

groundwater, and replenishing the reservoirs periodically as needed.

2015 License Rehearing Order P 3, SER12. Once operational, the

Project would pump water into the higher elevation reservoir during

periods of low electricity demand, and release water into the lower

elevation reservoir—generating electricity in the process—during

periods of high demand. Eagle Crest Energy Co., 147 FERC ¶ 61,220,

P 25 (2014) (“2014 License Order”), ER624.

5
 In January 2010, the Commission published notice of the Project

in the Federal Register, and set a March 2010 deadline for filing motions

to intervene and providing comments. 2014 License Order P 3, ER619.

Numerous entities intervened—thereby conferring party status—and

many more filed comments. Id. PP 4–5, ER619.

Petitioner National Parks Conservation Association filed

comments. Id. P 5, ER619. It raised numerous concerns over the

Project, namely that it would require excessive water commitments,

could contaminate groundwater aquifers, and would adversely impact

local wildlife and the nearby Joshua Tree National Park. National

Parks Conservation Association Comments (Feb. 13, 2009 and Mar. 11,

2010), SER1–10. The Association did not, however, intervene in the

licensing proceeding as necessary to confer party status and thus

preserve its right to seek judicial review of the 2014 License Order. See

16 U.S.C. § 825l(a)–(b).

In January 2012, the Commission issued a final Environmental

Impact Statement for the Project, followed by the June 2014 license

approval authorizing Project construction and operation. 2014 License

Order PP 2, 7, ER618, 620. The License Order included several

6
measures aimed at addressing environmental concerns raised by the

Association and others. To protect plants and wildlife, it required Eagle

Crest to implement wildlife protection plans. Id. PP 34–42, 106–110,

120–23 & License Article Nos. 415–17, ER625–27, 647–48, 650–51, 691–

93. To address potential impacts to groundwater supplies, it required

monitoring and mitigation measures, as needed (id. P 72, ER635),

though it explained that total groundwater withdrawal would be less

than one percent of the volume of available groundwater stored in the

aquifer, id. P 70, ER634–35; see also id. P 76, ER636–37. To prevent

pollution of groundwater, it mandated operation of a reverse osmosis

desalination facility. Id. P 75, ER636. And to minimize impacts to

Joshua Tree, the License Order required consultation with the National

Park Service to protect groundwater, air quality, wildlife, and plants in

the area, while also requiring mitigation measures to limit the effects of

construction on recreation, land use, and aesthetics. Id. PP 44, 84–85,

ER627, 639–40.

The Commission also assessed Project need. It found that the

Project would complement wind and solar energy production in the

region by balancing the intermittent nature of those renewable power

7
sources. Id. PP 163, 167, ER660–62. And it deemed the Project

economical, finding that it would cost less than the likely alternative

source of power. Id. P 165, ER661.

The Association did not challenge the Commission’s findings, nor

did it seek to intervene as a party at any time after the Commission

issued the License Order. Only two intervenor-parties sought agency

rehearing of that Order1—the U.S. Department of the Interior and the

Desert Protection Society (2015 License Rehearing Order P 2, SER11)—

and no party sought judicial review after the Commission denied

rehearing in 2015.

B. Eagle Crest’s requests for extensions of time to

commence and complete construction

Eagle Crest’s license required it to commence construction within

two years of license issuance (by June 19, 2016), and to complete

construction within seven years of issuance (by June 19, 2021). Eagle

Crest Energy Co., 167 FERC ¶ 61,117, P 2 (2019) (“2019 Extension

Order”), ER19–20. On March 17, 2016, Commission staff granted Eagle

1
Kaiser Eagle Mountain, LLC, which had proposed building a
landfill near the Project site, also sought rehearing, but later withdrew
its rehearing request. 2015 License Rehearing Order PP 2–3, SER11–
12.

8
Crest’s request to extend the deadline to commence construction by two

years, to June 19, 2018. Id. P 3, ER20. Under Section 13 of the Federal

Power Act, 16 U.S.C. § 806, as it existed at the time, the Commission

was authorized to issue a single, two-year extension of time to

commence construction. The Association did not seek to intervene in

Eagle Crest’s 2016 extension-of-time proceeding.

While the Association never challenged the 2014 license, it did

attempt to halt the Project in other ways. For example, it filed an

administrative appeal of the Bureau of Land Management’s August

2018 approval-in-principle of a right-of-way to Eagle Crest. ER265–66.

The Bureau manages the public portion of the Project land, 2019

Rehearing Order P 2, ER1, and a right-of-way is necessary for Project

construction, see Bureau of Land Management, Decision Approving

Eagle Crest Right-of-Way, BLM Case File No. CACA-050946, at 2–4

(Aug. 1, 2018), SER60–62. In fact, it was not until February 18, 2020

that Eagle Crest received—and subsequently signed—a final right-of-

way grant from the Bureau. Eagle Crest Request to FERC for

Extensions of Construction Deadlines, FERC Project No. 13123, at 5–6

9
(Mar. 19, 2020), SER84–85.2 The administrative appeal remains

pending.3

With final approval of a right-of-way and easements from private

landowners left outstanding, the clock ran out on Eagle Crest’s initial

deadline extension. See 2019 Extension Order P 11, ER23–24; Eagle

Crest Request for Extension of Commencement-of-Construction

Deadline, FERC Project No. 13123, at 6 (Nov. 6, 2018), SER75; see also

Mar. 2020 Extension Request at 7, SER86. The same day the deadline

expired—June 19, 2018—the Association requested that the

Commission terminate Eagle Crest’s license pursuant to Section 13 of

the Federal Power Act, 16 U.S.C. § 806. ER320. That provision provides

that, “[i]n case the licensee shall not commence actual construction …

2
According to Eagle Crest, with execution of the right-of-way grant,
it now has “legal certainty as to property rights to the [central Project
area] land.” Mar. 2020 Extension Request at 7, SER86. The
Commission granted Eagle Crest’s March 2020 extension request on
March 30, 2020. Eagle Crest Energy Co., Order Granting Extension of
Time to Commence and Complete Project Construction Pursuant to
Article 301, FERC Project No. 13123 (delegated order). Eagle Crest now
has until June 19, 2022 and June 19, 2025 to commence and complete
construction, respectively. Id. P 1.
3
Interior Board of Land Appeals, “Pending Appeals” (updated Feb.
29, 2020), available at https://tinyurl.com/shuoky6.

10
within the time prescribed in the license or as extended by the

[C]ommission, then, after due notice given, the license shall … be

terminated upon written order of the Commission.” 16 U.S.C. § 806.

On October 23, 2018, the America’s Water Infrastructure Act of

2018 (“2018 Infrastructure Act”) became law. 2019 Rehearing Order

P 4, ER2. The legislation amended Section 13 of the Federal Power Act

by changing the maximum construction extension a licensee could

receive from a one-time, two-year extension, to any number of

extensions totaling “not more than 8 additional years.” 2018

Infrastructure Act, Pub. L. No. 115-270, § 3001, 132 Stat. 3765, 3862

(2018), A7–8. On November 7, 2018, Eagle Crest requested a two-year

extension of time to commence Project construction, and, on

December 18, 2018, it requested a corresponding two-year extension to

complete construction. 2019 Rehearing Order P 4, ER2.

On November 15, 2018, the Association filed a motion to intervene

and comments opposing the request for extension of time to commence

construction. Id. P 5, ER2; ER350.

11
II. The Commission orders on review

The Commission granted Eagle Crest’s requests in the May 2019

Extension Order, extending the deadlines to commence and complete

construction to June 19, 2020 and June 19, 2023, respectively. 2019

Extension Order P 14, ER25. It explained the extension was warranted

because Eagle Crest had diligently pursued the Project by, among other

things, submitting to the Commission 16 required preconstruction

monitoring and management plans, and seeking to obtain necessary

land rights—including the Bureau of Land Management right-of-way

approval. Id. P 11, ER23–24 (citing 16 U.S.C. § 806); see also Nov. 2018

Extension Request at 4–6, SER73–75.

The Commission rejected the Association’s challenges to the

extension requests. It explained that applying the new version of

Federal Power Act Section 13—as amended by the 2018 Infrastructure

Act—to Eagle Crest’s requests was appropriate because nothing in the

Infrastructure Act restricted its application to projects licensed after the

bill ’s enactment. 2019 Extension Order P 9, ER22–23. Further, because

Eagle Crest retained a valid license at the time it requested its

12
extensions, the Commission acted within its statutory authority to

extend the deadlines in the license. Id.

The Commission also rejected the Association’s motion to

intervene in the proceeding. Id. P 12, ER24–25. It explained its policy

of allowing interventions in post-licensing proceedings that entail

“fundamental and significant changes” to the physical aspects of a

project, or to the terms and conditions of the license, or that would

adversely affect property rights in a way not contemplated by the

license. Id.; 2019 Rehearing Order PP 16, 19, ER7, 9–10. The

Commission disagreed with the Association that Rule 214 of the

Commission’s regulations, 18 C.F.R. § 385.214, mandates intervention.

2019 Rehearing Order PP 14–17, ER6–8. It explained that the Rule—

which prescribes the contents of an intervention motion—does not

require intervention in all types of proceedings. Id. P 15, ER6–7. Citing

its own regulations and Commission precedent, it held that Eagle

Crest’s extension-of-time proceeding did not qualify because it involved

no “fundamental and significant changes” to the physical contours of the

Project. Id. P 19 & nn.52–55 (citing, e.g., 18 C.F.R. § 4.35(f)(1)), ER9–10.

Indeed, Rule 210, 18 C.F.R. § 385.210, and Section 4.202, 18 C.F.R.

13
§ 4.202, of the Commission’s regulations require notice and intervention

only in proceedings involving a “‘significant alteration’” of a license. Id.

PP 23–28, ER11–13 (quoting 18 C.F.R. § 4.202(a)).

The Commission also explained the rationale for its policy. Among

other things, denying the Association’s motion to intervene prevented

the Association from using the extension-of-time proceeding to

collaterally attack the long-final 2014 license. Id. P 20, ER10.

Finally, the Commission denied the Association’s motion to stay

the 2019 Extension Order. Id. P 8, ER3–4. It rejected the argument

that, absent a stay, the Association would be unable to challenge the

merits of the Order because it was not a party to the proceeding. Id.

P 11, ER5. The Commission explained that, should a reviewing court

hold that the Commission erred in denying the Association intervention

as a party, the Commission would consider the Association’s challenge

to the extension requests on remand, and the Association would have an

opportunity to seek judicial review of the order resulting from the

remand proceeding. Id.

While the Commission was unanimous that Eagle Crest’s

extension requests were warranted, one Commissioner would have

14
granted the Association’s motion to intervene and requested stay of the

Extension Order. See 2019 Extension Order, Comm’r Glick Partial

Dissent PP 1–2, ER27–28; 2019 Rehearing Order, Comm’r Glick Dissent

PP 1–2, 4–6, ER15–16, 17–18. In doing so, however, that Commissioner

concluded that—notwithstanding the Commission’s denial of

intervention—the majority had provided a “convincing” response to the

Association’s merits arguments. 2019 Rehearing Order, Dissent P 4,

ER17.

SUMMARY OF ARGUMENT

The Association challenges the new construction deadlines in the

2019 Orders on review because, it argues, the Eagle Mountain Project

should not be constructed at all. Its collateral attack on the 2014

License Order is jurisdictionally barred by this Court’s precedent and,

in any event, fails on the merits.

The Court should dismiss both Petitions (Nos. 19-72915 and 19-

73079) for lack of Article III standing. The Association’s asserted injury

stems from the 2014 License Order authorizing construction of the

Project, not any order delaying its construction. Looked at another way,

because the License Order decided the merits of the Project’s

15
development with finality, the Association’s attempt to scuttle the

Project by leveraging a subsequent proceeding—concerning only the

timing of Project construction—is an impermissible collateral attack on

the License Order.

The Association’s challenge to the Commission’s denial of its

motion to intervene as a party also fails on the merits. The Federal

Power Act vests the Commission with discretion to decide which types

of proceedings warrant public notice and the opportunity to intervene.

The Association is wrong that Commission Rule 214 grants it the right

to intervene here: that Rule explains who may intervene and how, but

says nothing about whether a particular proceeding accommodates

intervention.

Under Commission policy, an entity is entitled to notice and

intervention in proceedings that consider fundamental, significant

changes to the physical contours of a project, or changes that could

adversely affect the rights of property-holders in a way not

contemplated by a license. That policy, dating back decades, hews

closely to the text of the Commission’s regulations. Indeed, the

regulations explain that notice and intervention are triggered by

16
“significant alterations” or “material amendments” to a license. And

they expressly define such changes in terms of a project’s physical

features. A proposal to extend the time to construct an already-

approved project reasonably does not qualify.

The Association’s petition for writ of mandamus also fails.

Mandamus relief is warranted only in extraordinary circumstances,

where justice cannot otherwise be secured. But the same relief the

Association seeks through mandamus is already available through its

companion petition for judicial review: If the Court finds that the

Commission erred in denying intervention, it retains the equitable

authority to order reopening of the Commission proceeding on remand.

Further, the Commission did not clearly err in granting the

requested extensions—a necessary showing for mandamus relief. In

fact, the Federal Power Act supports the Commission’s authority to

extend the Project construction deadline, because the license had yet-to-

be terminated when the Commission granted the extension. And

because the Commission applied the law in effect at the time it decided

Eagle Crest’s extension requests, assessing those requests under the

17
amended, 2018 version of the Federal Power Act was not retroactive

application of law.

ARGUMENT

I. Standards of review

A. Petition for review of the Commission’s denial of

intervention

The Federal Power Act explicitly “prescribe[s] the procedures and

conditions under which, and the courts in which, judicial review of [the

Commission’s] orders may be had.” City of Tacoma v. Taxpayers of

Tacoma, 357 U.S. 320, 336 (1958); see also Cal. Trout v. FERC, 572 F.3d

1003, 1013 (9th Cir. 2009). Under the Act, only a “party” to a

Commission proceeding may seek judicial review of the Commission’s

final orders, following agency rehearing, resolving the proceeding: “Any

party to a proceeding under this chapter aggrieved by an order issued

by the Commission in such proceeding may obtain review of such order”

in the appropriate United States Court of Appeals. 16 U.S.C. § 825l(b);

Cal. Trout, 572 F.3d at 1013 (nonparties to Commission proceedings

“may not challenge the Commission’s final determination in any court”).

An entity denied party status in a Commission proceeding may,

however, obtain judicial review in a limited sense. “[B]ecause ‘it would

18
be grossly unfair to deny judicial review to a petitioner objecting to an

agency’s refusal to grant party status on the basis that the petitioner

lacks party status,’ the petitioner is ‘considered a party for the limited

purpose of reviewing the agency’s basis for denying party status.’” Cal.

Trout, 572 F.3d at 1013 n.7 (quoting Covelo Indian Cmty. v. FERC, 895

F.2d 581, 586 (9th Cir. 1990)). This rule, first articulated by the D.C.

Circuit in 1960 and adopted by this Court, has been reaffirmed several

times, most recently in 2016. See Pub. Serv. Comm’n of N.Y. v. FPC, 284

F.2d 200, 204 (D.C. Cir. 1960); see also New Energy Capital Partners,

LLC v. FERC, 671 F. App’x 802, 804 (D.C. Cir. 2016); Green Island Power

Auth. v. FERC, 577 F.3d 148, 159 (2d Cir. 2009); Covelo, 895 F.2d at 585–

86; N. Colo. Water Conservancy Dist. v. FERC, 730 F.2d 1509, 1515 (D.C.

Cir. 1984).

Denial of party status is reviewed for abuse of discretion. Cal.

Trout, 572 F.3d at 1012; Covelo, 895 F.2d at 587. An abuse of discretion

is “a plain error, discretion exercised to an end not justified by the

evidence, a judgment that is clearly against the logic and effect of the

facts as are found.” Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv.,

422 F.3d 782, 798 (9th Cir. 2005) (internal quotations omitted).

19
Disagreement with an agency’s judgment alone does not meet that

standard. United States v. Dunn, 728 F.3d 1151, 1159 (9th Cir. 2013);

United States v. Lewis, 611 F.3d 1172, 1180 (9th Cir. 2010). Indeed, in

assessing Commission orders under the Administrative Procedure Act’s

arbitrary and capricious standard, 5 U.S.C. § 706(2)(A), the Court’s

review is narrow and highly deferential. FERC v. Elec. Power Supply

Ass’n, 136 S. Ct. 760, 782 (2016); Cal. Trout, 572 F.3d at 1012 n.6; Fall

River Rural Elec. Coop., Inc. v. FERC, 543 F.3d 519, 525 (9th Cir. 2008).

B. Petition for writ of mandamus

The writ of mandamus “‘is a drastic and extraordinary remedy

reserved for really extraordinary causes.’” United States v. Guerrero,

693 F.3d 990, 999 (9th Cir. 2012) (quoting Cheney v. U.S. Dist. Court, 542

U.S. 367, 380 (2004)). “The party seeking mandamus relief must

establish that its right to issuance of the writ is ‘clear and

indisputable.’” In re Cal. Power Exch. Corp., 245 F.3d 1110, 1120 (9th

Cir. 2001) (quoting Gulfstream Aerospace Corp. v. Mayacamas Corp., 485

U.S. 271, 289 (1988) (internal quotations omitted)).

In agency matters, the Ninth Circuit has applied a three-part test

to mandamus petitions. Under the Hodel test, “[m]andamus relief is

20
only available to compel an officer of the United States to perform a

duty if (1) the plaintiff ’s claim is clear and certain; (2) the duty of the

officer is ministerial and so plainly prescribed as to be free from doubt,

and (3) no other adequate remedy is available.” Fallini v. Hodel, 783

F.2d 1343, 1345 (9th Cir. 1986) (internal quotations and citations

omitted) (adopted by Cal. Power Exch., 245 F.3d at 1120, and by Or.

Natural Res. Council v. Harrell, 52 F.3d 1499, 1508 (9th Cir. 1995)). The

test is conjunctive. Cal. Power Exch., 245 F.3d at 1124 & n.13.

While the Ninth Circuit has not explained the circumstances in

which it applies an alternative standard, it appears the similar Bauman

test generally applies in non-agency matters. Under that test, the

Court assesses five factors: (1) whether the petitioner “has no other

means to obtain the desired relief ”; (2) the risk of prejudice to the

petitioner; (3) “whether the district court’s order is clearly erroneous”;

(4) the frequency of the district court’s error; and (5) “whether the

district court’s order raises new and important problems or issues of

first impression.” Guerrero, 693 F.3d at 999 (citing Bauman v. U.S. Dist.

Court, 557 F.2d 650, 654–55 (9th Cir. 1977)).

21
 Both tests assess whether the petitioner may secure adequate

relief through alternative means, and under either test, whether the

petitioner is “clear[ly]” correct—i.e., whether the agency has committed

“clear[] error[]”—is dispositive. Cal. Power Exch., 245 F.3d at 1124 &

n.13; Guerrero, 693 F.3d at 999. “‘Clear error’ is a highly deferential

standard of review.” In re Van Dusen, 654 F.3d 838, 841 (9th Cir. 2011).

In the mandamus context, the Court “must have a definite and firm

conviction that the [Commission’s] interpretation … was incorrect.” Id.

(internal quotations omitted).

II. The Association lacks Article III standing

The “irreducible constitutional minimum” for Article III standing

requires the petitioner to show that it has (1) suffered a “concrete and

particularized,” “actual or imminent” “injury in fact,” that is (2) “fairly

traceable” to the conduct complained-of, and that is (3) “likely to be

redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S.

Ct. 1540, 1547–48 (2016) (internal quotations omitted); Daniel v. Nat’l

Park Serv., 891 F.3d 762, 766 (9th Cir. 2018). The Association fails to

satisfy Article III standing’s traceability requirement, and, relatedly, its

22
petitions are an impermissible collateral attack on the 2014 License

Order.

A. The Association’s injury is not fairly traceable to the

May 2019 Extension Order

All three prongs of the standing analysis—injury, causation, and

redressability—must be satisfied. Wash. Envtl. Council v. Bellon, 732

F.3d 1131, 1139–40 (9th Cir. 2013). While the “‘fairly traceable’ and

‘redressability’ components for standing overlap,” “[t]he two are distinct

insofar as causality examines the connection between the alleged

misconduct and injury, whereas redressability analyzes the connection

between the alleged injury and requested judicial relief.” Id. at 1146

(citing Allen v. Wright, 468 U.S. 737, 753 n.19 (1984)). Thus, whether

the requested relief will remedy a cognizable injury is not dispositive:

the causal connection must be independently shown. See Allen, 468 U.S.

at 753 n.19, 757.

The Association’s standing founders on traceability. While it fails

to articulate an actionable injury-in-fact, which by itself suffices to show

lack of standing,4 a generous reading of its brief suggests an injury to

4
The Association fails to show injury for either organizational
standing, see La Asociacion de Trabajadores de Lake Forest v. City of
23
the Association’s organizational interest in preserving the Project area

from further development. See, e.g., Br. 32 (seeking “to protect the

[Project area land] from development”). But that injury stems from the

Commission’s original, long-final approval of the Project, reflected in the

2014 License Order—not the 2019 Extension Order delaying the date of

construction and thus preserving the land in its current state for longer

than the original license prescribed.5 See 2019 Rehearing Order PP 2,

20, ER1, 10 (citing the 2014 License Order). Cf. Coalition for

Responsible Regulation, Inc. v. EPA, 684 F.3d 102, 146 (D.C. Cir. 2012)

Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010), or representational
standing, see Smith v. Pac. Properties & Dev. Corp., 358 F.3d 1097, 1101
(9th Cir. 2004).
5
Should the Association argue (belatedly) on reply that its injury is
the denial of intervention in the post-licensing, extension-of-time
proceeding, that argument fails. While a procedural injury—e.g., denial
of intervention, Palmieri v. New York, 779 F.2d 861, 864 (2d Cir. 1985)—
is cognizable, it must still be tied to a substantive, concrete harm.
Summers v. Earth Island Institute, 555 U.S. 488, 496 (2009); see also
Narragansett Indian Tribal Historic Pres. Office v. FERC, 949 F.3d 8, 10,
12–13 (D.C. Cir. 2020) (dismissing petition for review of denial of
intervention for lack of standing where petitioner failed to show ongoing
concrete harm). The Association seeks to vindicate a procedural right to
intervene in order to ameliorate the concrete harm of Project
development. But, as discussed, the Association’s concrete harm stems
from the 2014 License Order, not the Commission’s denial of
intervention in the post-licensing proceeding.

24
(holding that petitioners lacked standing to challenge an agency rule

that delayed application of a regulatory burden because the delay

“mitigate[d] Petitioners’ purported injuries”), rev’d in part on other

grounds sub nom. Util. Air Regulatory Grp. v. EPA, 573 U.S. 302 (2014);

Nat’l Comm. for New River, Inc. v. FERC, 433 F.3d 830, 832 (D.C. Cir.

2005) (holding that allegations of environmental harm for an already-

approved pipeline were inadequate because the petitioner “already lost

that battle when this Court upheld FERC’s certification of the

pipeline”).

The Association does not purport to challenge the 2014 License

Order, nor could it: that order is long-since final and the Association

never intervened in the licensing proceeding as a party, meaning it

forfeited its right to Commission rehearing of that order. See 16 U.S.C.

§ 825l(a) (only an intervening party may seek rehearing of a

Commission order). And because party status is a prerequisite to

seeking judicial review following the agency’s rehearing order, the

Association also passed up its opportunity to contest the License Order

in court. See id. § 825l(b) (a party to a Commission proceeding may

25
seek judicial review of the Commission’s rehearing order within 60 days

of the rehearing order).

Nor is this a case where the Association previously sought but was

denied party status. Despite its awareness of and participation in the

licensing proceeding (as a nonparty) (see Br. 33; National Parks

Conservation Association Motion to Intervene, at 3 (Nov. 15, 2018),

ER352; 2009 and 2010 Association Comments, SER1–10), the

Association made no attempt to intervene as a party in that proceeding.

Instead, it waited nearly a decade from the date it first filed comments

on the Project to intervene as a party, and then did so only in the

agency proceeding that extended construction deadlines. See 2009

Association Comments, SER1–5.

In short, the Association fails to demonstrate a distinct injury “as

a result of the [2019 Extension Order]” that is not instead traceable to

the 2014 License Order. New River, 433 F.3d at 832. It therefore lacks

Article III standing.

B. The Association cannot collaterally attack the 2014

License Order

The incongruity between the Association’s injury and the orders

on review reveals another jurisdictional flaw: its petitions collaterally

26
attack a Commission order it was required to challenge years ago. See

2019 Rehearing Order P 20, ER10 (the Association “does not directly

challenge the extensions sought by Eagle Crest but rather uses the

extensions as a basis to renew its challenges to the license itself ”; it is

“mount[ing] an untimely collateral attack on the license order”).

“The collateral attack doctrine prevents litigants from ‘relitigating

the merits of ... previous administrative proceedings’ or ‘evading ...

established administrative procedures’ by raising a claim that is

‘inescapably intertwined with a review of the procedures and merits

surrounding’ an underlying agency order.” Ctr. for Biological Diversity v.

EPA, 847 F.3d 1075, 1092 (9th Cir. 2017) (quoting Americopters, LLC v.

FAA, 441 F.3d 726, 736 (9th Cir. 2006)). “At its core, the doctrine

prohibits a plaintiff from using a later order that implements a prior

agency action as a vehicle to undo the underlying action or order.” Id.

The collateral attack doctrine applies with particular force to

petitions challenging FERC orders, as the Federal Power Act limits the

Court’s jurisdiction to reviewing “new orders.” Pac. Gas & Elec. Co. v.

FERC, 464 F.3d 861, 868 (9th Cir. 2006) (citing 16 U.S.C. § 825l(b)). As

this Court has explained, “[t]he language of 16 U.S.C. § 825l does not

27
permit the intertwining of orders for review purposes, that is, using a

timely petition to review an order for which the time limitations have

run.” Covelo, 895 F.2d at 585 (internal quotations omitted).

In Covelo, the Court rejected a petition for review of a Commission

order as an impermissible collateral attack. See id. At issue was the

Commission’s relicensing of a hydroelectric project—an order petitioner

California Trout, Inc. (“Cal Trout”) did not timely challenge before the

Commission. Id. The Commission then sought voluntary remand of the

relicensing order to correct an error pertaining to its legal scope. Id.

Cal Trout did seek timely administrative rehearing of resulting remand

order, but the Commission rejected it because it “raised issues relating

to the substance of the agency’s [original] relicensing order.” Id.

This Court upheld the Commission’s decision. Because the

Commission “did not … reconsider the relicensing decision or open the

door to reconsideration” in its remand order, Cal Trout’s attempt to

relitigate the relicensing order was “precluded” under 16 U.S.C. § 825l.

Id.; see also Pacific Gas, 464 F.3d at 865, 869–70 (rejecting petition for

judicial review of a Commission order accepting application of a

28
particular rate-making method in an electricity market, because the

Commission had approved the method itself in a prior order).

Same here. The Association’s petition is all about the merits of the

Project—an issue the 2014 License Order squarely addressed and

resolved with finality. See, e.g., Br. 1–2, 16–19; see also 2019 Rehearing

Order P 20, ER10. As the Association candidly admits, the 2014 License

Order “is at the center of this litigation.” Br. 12. And it goes on,

spending several pages objecting to the Project itself. See, e.g., Br. 1

(seeking to “protect” the disputed land from the Project); 12 (asserting

its desire to make “Joshua Tree … once again … whole”); 16

(challenging the “need for the project”); 17–19 (alleging risks to

groundwater resources, plant communities, and wildlife habitat caused

by the Project); 32 (explaining its desire “to protect the [Project area

land] from development”). In other words, the Association seeks to

relitigate whether the Project should proceed, not when Eagle Crest

should break ground. See 2019 Rehearing Order P 20, ER10 (“[t]he

Association essentially asks that the Commission reevaluate whether

the [P]roject is in the public interest ….”). The collateral attack doctrine

precludes such a maneuver: the Association cannot leverage a post-

29
licensing proceeding on one topic to belatedly challenge a prior

determination on another. Pacific Gas, 464 F.3d at 868–70; Covelo, 895

F.2d at 585.

To the extent the Association asserts that its motion to intervene

addresses a new issue—alleged retroactive application of amended

Federal Power Act Section 13, cf. Br. 29, 33—not covered by the 2014

License Order, that argument is unconvincing. The fact remains that

the Association seeks to use the 2019 Extension Order “as a vehicle to

undo the underlying [2014 License Order]” by challenging the merits of

the Project itself. Ctr. for Biological Diversity, 847 F.3d at 1092. Its

attack on the Extension Order remains “‘inescapably intertwined with a

review of the procedures and merits surrounding’ an underlying agency

order.”6 Id. (quoting Americopters, 441 F.3d at 736).

6
This does not mean extension-of-time proceedings are immune
from judicial review. An entity can seek mandamus relief by showing,
for example, that the Commission “clear[ly]” erred. Cal. Power Exch.,
245 F.3d at 1120. But, as discussed infra pp. 61–74, the Commission did
not clearly err in applying the amended version of Federal Power Act
Section 13 here.

30
 To be sure, the Association’s desired remedy—invalidation of the

extended deadline to commence construction, see Mandamus Pet. 30; see

also Br. 51—could set in motion events that ultimately halt the Project.

But the bar on collateral attacks does not evaporate just because a

petitioner-favorable ruling could provide relief. Indeed, a core purpose

of the bar is to prevent such an outcome: a petitioner may not benefit

from its own neglect in failing to challenge the appropriate order. See

Pacific Gas, 464 F.3d at 869 (explaining that a petitioner “cannot obtain

two bites of the proverbial apple”).

Nor does the bar’s force wane—and the Association cites no

authority for its contrary assertion—with changed circumstances due to

the passage of time. See Br. 16–17, 19–20 (noting, among other things,

changed regulatory and economic conditions since license approval). As

a first matter, most of the Association’s justifications for opposing the

Project existed at the time of the 2014 License Order. See, e.g., Br. 16

(“[t]he putative need for the project [was] dubious at best during its

inception nearly 30 years ago”); Br. 17–18 (citing groundwater depletion

concerns from filings made in 2012 and 2013 (ER252, 1136, 1148, 1163);

Br 18 (citing acid mine seepage concerns from filings made in 2012 and

31
2013 (ER252, 1137, 1173); Br. 19 (citing concerns over impacts on plant

and wildlife habitat, and to bighorn sheep and the desert tortoise, from

filings made in 2012 and 2013 (ER251, 1179, 1182); Br. 19 (citing

concerns over effects to viewsheds and recreational opportunities from a

2012 filing (ER1203)). Indeed, far from boosting its cause, these various

points only highlight the collateral, untimely nature of the Association’s

challenge.

But even if changed circumstances were the driving force behind

the Association’s sudden desire for intervenor-party status, that would

not somehow cure what remains a collateral attack on the 2014 License

Order. Under the Association’s approach, a petitioner could challenge

an original license in a post-licensing proceeding, so long as it proffered

new facts that, had they existed at the time of the original license

review, might have changed the outcome of that proceeding. Not only

does such an approach subvert the collateral attack doctrine root-and-

branch—after all, one can generally point to changed circumstances—it

also undermines two of the doctrine’s animating concerns: (1) ensuring

that final agency actions are, in fact, final, see Ctr. for Biological

Diversity, 847 F.3d at 1092; and, relatedly, (2) preventing parties from

32
making an “end-run around the jurisdictional limitation imposed by [16

U.S.C. § 825l(b)],” setting a 60-day time-limit for challenging

Commission orders, Americopters, 441 F.3d at 736 (internal quotations

omitted).

III. The Commission reasonably interpreted the Federal Power

Act and its own regulations in denying the Association’s
motion to intervene

The Commission denied the Association’s motion to intervene

because Eagle Crest’s post-licensing, extension-of-time proceeding did

not involve a physical, “material change[] in the plan of [P]roject

development or in the terms and conditions of the license,” nor did it

“adversely affect the rights of property holders in a manner not

contemplated by the license.” 2019 Rehearing Order PP 16, 19, ER7, 9–

10 (collecting cases). If the Court proceeds to the merits, it should

uphold the Commission’s decision. In exercising its discretion to deny

intervention, see 16 U.S.C. § 825g(a), the Commission hewed closely to

the text and structure of the Federal Power Act and implementing

regulations, and acted consistent with its precedent. See 2019

Rehearing Order PP 16, 19, 24–26, ER7, 9–10, 11–12.

33
 A. The Commission’s rules and regulations vest it with
discretion to limit the types of proceedings affording
a right to intervene

Congress enacted the Federal Power Act with the purpose of, as

relevant here, promoting the “comprehensive development and full use

of the nation’s navigable waters.” Pac. Gas & Elec. Co. v. FERC, 720 F.2d

78, 82–83, 89 (D.C. Cir. 1983) (citing 16 U.S.C. § 803(a)); see also Cal.

Trout, 572 F.3d at 1013. Congress also contemplated allowing entities

to enter Commission proceedings as parties, but conferred no absolute

right to do so. The Act provides that, “[i]n any proceeding before it, the

Commission, in accordance with such rules and regulations as it may

prescribe, may admit as a party any … person whose participation in

the proceeding may be in the public interest.” 16 U.S.C. § 825g(a)

(emphasis added); see also id. § 825g(b) (all proceedings under the

Federal Power Act “shall be governed by rules of practice and procedure

to be adopted by the Commission”); Scenic Hudson Pres. Conference v.

FPC, 354 F.2d 608, 617 (2d Cir. 1965) (“[T]he Commission has ample

authority reasonably to limit those eligible to intervene or to seek

review.”); 2019 Rehearing Order PP 15–17 & n.47, ER6–8.

34
 The Commission has established “rules of practice and procedure”

governing the right to public notice and intervention, and those rules do

not support the Association’s right to intervene here.

1. Rule 214 establishes who may intervene and how,

not whether the right exists in a particular type
of proceeding

The Association relies on the Commission’s generic regulation

governing the process for intervening, Rule 214. Br. 30–34. Contrary to

the Association’ framing, however, Rule 214 does not elucidate whether

the Association may intervene in a particular proceeding. See 18 C.F.R.

§ 385.214; see also 16 U.S.C. § 825g(a) (explaining that the Commission

“may” allow intervention).

Rule 214 explains who may intervene (“[a]ny person,” 18 C.F.R.

§ 385.214(a)(3)) and how to do so (by stating the movant’s “position,” id.

§ 385.214(b)(1), and “interest” in the proceeding or the “public interest”

at stake, id. § 385.214(b)(2)(ii)–(iii)). But it says nothing about whether

a proceeding is the type in which the Commission allows intervention in

the first place. See 2019 Rehearing Oder P 15, ER6–7 (“Rule 214 of the

Commission’s regulations is inapplicable because this is not a

proceeding where the Commission permits intervention.”). Indeed, Rule

35
214’s application expressly turns on the operation of other regulations—

which regulations generally limit intervention to proceedings involving

significant changes to the physical aspects of a hydroelectric project.

2. The Commission reasonably determined that

extension-of-time requests do not trigger notice
and intervention

a. Rule 214 sets the point of departure. It states that

intervention motions be filed within the “time period established under

Rule 210.” 18 C.F.R. § 385.214(b)(3). For its part, Rule 210 provides for

intervention “[w]hen the [Commission] gives notice of,” among other

things, “applications.” Id. § 385.210(a)–(b). It explains that “[a] notice

given under this section will establish the dates for filing interventions

and protests.” Id. § 385.210(b).

Section 6 of the Federal Power Act, in turn, explains when the

Commission must issue such notice: where, as relevant here, a licensee

seeks to “alter” the license. 16 U.S.C. § 799 (providing that “[l]icenses …

may be altered … only upon mutual agreement between the licensee

and the Commission after thirty days’ public notice”); see also 2019

Rehearing Order PP 24–25, ER11–12 (addressing Section 6 and Rule

210); Br. 9 (asserting that Section 6 and Rule 210 are “intertwine[d]”).

36
 b. So what constitutes an “alter[ation]” of a license? Subpart L of

the regulations—“Application for Amendment of License”—provides the

answer. 18 C.F.R. Subpart L. It sets forth procedures applicable to “any

application for amendment of a license.” Id. § 4.200. One type of

“amendment” is an “exten[sion of] the time fixed in the license for

commencement or completion of project works.” Id. § 4.200(c). But

Subpart L also explains that notice is only required for a license

“amendment” that constitutes a “significant alteration.” Id. § 4.202(a);

2019 Rehearing Order P 25, ER11–12. Stated in full, “[i]f it is

determined that approval of the application for amendment of license

would constitute a significant alteration of license pursuant to section 6

of the Act, 16 U.S.C. § 799, public notice of such application shall be

given at least 30 days prior to action upon the application.” 18 C.F.R.

§ 4.202(a).

The Association elides this distinction by suggesting that because

an extension of time is an “amendment” under Section 4.200,

proceedings addressing such requests are subject to notice and

intervention. See Br. 38–39. But the Commission explained that, under

its rules and precedent, an extension of time to construct a project does

37
not involve a “substantial modification or departure from the plan of

development,” and therefore does not constitute a “significant

alteration.” 2019 Rehearing Order PP 25–26 & n.69, ER11–12 (citing

Application for License for Major Unconstructed Projects and Major

Modified Projects; Application for License for Transmission Lines Only;

and Application for Amendment to License, Order No. 184, 46 Fed. Reg.

55,926, 55,931 (1981), A43, and Third Annual Report of the Federal

Power Commission at 225 (1923), A52).

The Commission’s interpretation is reasonable because it is

consistent with the structure and context of Subpart L. Section 4.202(a)

makes plain that “amendment” describes the universe of license

changes, and that “significant alteration[s]” are only a subset thereof.

18 C.F.R. § 4.202(a). If a bare “amendment”—e.g., an extension of

time—sufficed for notice, then Section 4.202’s discussion of “significant

alteration[s]” would be superfluous. See 2019 Rehearing Order P 25,

ER11–12 (emphasizing significance requirement); see also Mac’s Shell

Serv., Inc. v. Shell Oil Prods. Co., 559 U.S. 175, 188 (2010) (statutes

should be interpreted “in a manner that gives effect to all of their

provisions” (internal quotations omitted)).

38
 The preamble to Section 4.202—Order No. 184—confirms this

reading. See Husyev v. Mukasey, 528 F.3d 1172, 1181 (9th Cir. 2008)

(reading regulatory preamble together with the codified regulatory

provisions); see also San Diego Gas & Elec. Co. v. FERC, 913 F.3d 127,

137 (D.C. Cir. 2019) (same, in the FERC context). Order No. 184

describes the types of amendments triggering notice and intervention as

those proposing “fundamental ” physical changes to the “plan of

development.” 46 Fed. Reg. at 55,931, A43; 2019 Rehearing Order P 25

& n.69, ER11–12. Specifically, it states that, “[a]s a general matter,

amendments to a license, whether they add capacity, change project

works, or otherwise reshape the project, are not so fundamental as to

create a different licensed project, thereby necessitating public notice,

intervention, and protest procedures.” 46 Fed. Reg. at 55,931.

In other words, not only must a license amendment “reshape” the

physical aspects of a project to trigger notice and intervention, it must

also do so in a “fundamental ” way. Because granting Eagle Crest’s

extension-of-time requests did not “reshape” the Project at all, the

Commission reasonably held that the relevant proceeding did not

39
warrant notice and intervention. See 2019 Rehearing Order PP 19, 25–

27, ER9–12.

c. The Association’s attacks on the Commission’s interpretation of

its own regulations are unpersuasive. First, the Association tries to cast

doubt on the lawfulness of Section 4.202 with two case citations. Br. 48.

But neither case even mentions Section 4.202, let alone questions its

legitimacy. See Fall River, 543 F.3d at 525–26; Pacific Gas, 720 F.2d at

89–90 & n.36. To the extent Pacific Gas addressed the Commission’s

approach, it held that certain license amendments do not trigger notice

under Section 6. See 720 F.2d at 89–90 (explaining that “‘altered’” in

Section 6 “is not self-defining” and “must incorporate some common

sense limits”). And the court expressly agreed that the Commission has

discretion “to define what types of actions … ‘alter[]’ … an existing

license and thus invoke the protections of Section 6.” Id. at 90 n.36

(internal quotations omitted).

As for this Court’s decision in Fall River, the panel there assumed

a standard consistent with Section 4.202: that “in order to violate

Section 6, a proposed project must substantially alter an existing

license.” 543 F.3d at 525 (emphasis in original).

40
 Second, the Association argues that whether the Commission

properly applied the amended version of Federal Power Act Section 13—

allowing construction deadline extensions of up to eight years—is an

“important legal question” that, under Rule 214, implicates the “public

interest.” Br. 32–33. But this assumes Eagle Crest’s extension-of-time

proceeding triggers notice and intervention, and thus the filing

requirements of Rule 214. As discussed, it does not (see supra pp. 36–

40), and, in any event, the Commission did not err in applying amended

Section 13 (see infra pp. 61–74).

Third, the Association’s own interpretation of the regulations is

internally contradictory. The Association insists primarily that because

it met Rule 214(b)’s criteria prescribing the contents of a motion, it was

entitled to intervene. Br. 3, 23, 28, 31, 34, 38. But later, it acknowledges

that Rule 214 applies if the proceeding is one “where the Commission is

required to provide public notice” under Rule 210. See Br. 29, 47; see

also Br. 9. Shifting gears yet again, it argues finally that because it was

entitled to intervene, the Commission was required to issue notice

under Rule 210. Br. 47.

41
 The Association gets it right the second time7: Rule 214 expressly

incorporates by reference Rule 210 by requiring that a motion to

intervene be filed within the “time period established under Rule 210.”

18 C.F.R. § 385.214(b)(3). To reiterate, Rule 210 provides that, in

proceedings requiring notice—i.e., those that involve “significant

alteration[s]” to a license, id. § 4.202(a)—such notice shall include a

deadline to intervene, id. § 385.210(a)–(b). The Commission has, as in

this case, reasonably declined to find a right to intervene where Rule

210 does not apply. See 2019 Rehearing Order PP 15, 24, ER6–7, 11.

The Commission’s approach makes sense. Pausing to consider the

consequences of the Association’s first interpretation—that the Court

should limit its review to whether the Association properly filled out its

motion to intervene (see 18 C.F.R. § 385.214(b); Br. 3, 23, 28, 31, 38)—

helps explain why. Under that interpretation, a license amendment

constituting a “significant alteration” would trigger Rule 210’s

7
Even under the correct interpretation, the Association still insists
intervention is mandated here. See Br. 29, 48–49. Its misconception
flows directly from its failure to confront the Commission’s reasonable
interpretation of “significant alteration” as applying to physical changes
to a project.

42
requirement that the Commission set a deadline for intervention. So

far so good. But relatively minor amendments that do not implicate

Rule 210 would, accordingly, involve no such deadline; putative

intervenors would presumably enjoy unlimited time to intervene. The

Commission has reasonably declined to interpret its regulations in a

way that could result in such anomalies. See Asarco LLC v. Atl.

Richfield Co., 866 F.3d 1108, 1125 n.8 (9th Cir. 2017) (where possible,

courts avoid constructions that result in “internal inconsistencies”).

Finally, the Association argues that Eagle Crest’s extension-of-

time requests trigger notice and intervention because, in its view, the

requests constitute a “significant alteration.” Br. 47–49. The

Association reasons that extending the construction deadline would

enable Eagle Crest to pursue an “otherwise-defunct Project,” make it

more difficult to conserve the Project area land, and foreclose the

Association’s ability to secure additional environmental review. Id. at

48–49.

All these concerns—assuming they are correctly based in law and

fact—reflect the Association’s preferred definition of “significant

alteration.” But the Association cannot swap out the Commission’s

43
reasonable definition for its favored alternative. See Kisor v. Wilkie, 139

S. Ct. 2400, 2415–16 (2019) (an agency’s reasonable interpretation of an

ambiguous regulation deserves deference). As the Commission’s rules

and regulations explain, “significant alteration” refers to a

“fundamental ” change to the project itself—not all those things a

project could affect. See supra pp. 38–40. And, in any event, the

Association’s interpretation fails on its own terms. Section 4.202(a)

requires notice for a “significant alteration of [a] license.” 18 C.F.R.

§ 4.202(a) (emphasis added). That extending a deadline might “alter”

the Association’s ability to conserve the Project area land does not speak

to how the license itself is “alter[ed].”

* * *

At this point, the Court should conclude that the Commission’s

denial of the Association’s motion to intervene was reasonable. Rule

214 says nothing about whether a right to intervene applies to a

particular proceeding. And the Commission has reasonably interpreted

other parts of its rules and regulations—namely, Rule 210, Order

No. 184, and Section 4.200 et seq.—as generally limiting intervention to

44
proceedings involving proposals that “significantly alter[]” a physical

aspect of a licensed project.

But, lest there be any doubt, further textual support abounds.

d. Section 16.9 of the Commission’s regulations ties the right to

intervene to requests for “material amendments,” and defines that term

to mean physical changes to a project. It explains that “public notice” of

a proposal to “amend[]” a license application—and “dates for …

intervention”—are required only if such amendment constitutes a

“material amendment,” as set forth in Section 4.35(f). 18 C.F.R.

§§ 16.9(b)(3), (d)(1), 4.35(f); see also Green Island, 577 F.3d at 163

(applying the “materially amend[ed]” standard to a dispute over an

amended relicensing application); 2019 Rehearing Order P 19 & n.55,

ER9–10 (citing cases).

Section 16.9, governing amendments to license applications, is

substantially similar to Section 4.202, governing amendments to FERC-

issued licenses. Both explain that a bare “amendment”—to a license

application (Section 16.9(b)(3)) or to the license itself

(Section 4.202(a))—does not trigger notice and intervention. And while

the two provisions use slightly different terminology—“significant

45
alteration” (Section 4.202(a)) versus “material amendment”

(Section 4.35(f))—to describe changes that do trigger notice and

intervention, the term “material amendment” is defined in the

regulations, whereas “significant alteration” is not.

For its part, Section 4.35(f) defines “material amendment” to mean

“any fundamental and significant change” to “plans of development

proposed in an application for a license.” 18 C.F.R. § 4.35(f)(1); 2019

Rehearing Order P 19 n.55, ER9–10. It then provides an illustrative list

of eligible amendments, all of which share a common trait—they

describe physical changes to a project: certain “change[s] in the

installed capacity, or the number or location of any generating units of

the proposed project” (Section 4.35(f)(1)(i)); certain “material change[s]

in the location, size, or composition of the dam, the location of the

powerhouse, or the size and elevation of the reservoir”

(Section 4.35(f)(1)(ii)); or a “change in the number of discrete units of

development to be included within the project boundary”

(Section 4.35(f)(1)(iii)).

Under the interpretive maxim noscitur a sociis—“a word is known

by the company it keeps”—the term “material amendment” must be

46
read in the context of the list that follows. See Yates v. United States,

574 U.S. 528, 543–44 (2015). Thus, because the listed items share a

common trait—all refer to tangible aspects of a project—a “material

amendment” reasonably means some physical change to the project

itself. See id. (courts should “avoid ascribing to one word a meaning so

broad that it is inconsistent with its accompanying words” (internal

quotations omitted)). Indeed, the Commission has adopted precisely

this interpretation. See, e.g., Erie Boulevard Hydropower, L.P., 131

FERC ¶ 61,036, PP 14, 17 (2010) (construing “material amendment” in

Section 4.35(f) to mean “significant changes to … the project’s physical

features” (emphasis added)), aff’d sub nom. Green Island Power Auth. v.

FERC, 497 F. App’x 127 (2d Cir. 2012); see also 2019 Rehearing Order

P 19 & n.55, ER9–10 (explaining that “material amendment” in Section

4.35(f)(1) refers to “physical changes”). A request to extend time to

construct a project does not qualify.

e. In the orders on review, the Commission considered whether

Eagle Crest’s extension-of-time requests constituted a “material

amendment[]” to its license, such that Commission policy required it to

“accept[] interventions” in that proceeding. 2019 Rehearing Order

47
PP 16, 19 & n.55, ER7, 9–10. The Commission’s application of Section

4.35(f)’s definition of “material amendment” (again, applicable to license

application amendments) was reasonable. First, an “amendment” that

constitutes a “significant alteration” is reasonably a “material

amendment.” Second, the standard governing a right to notice and

intervention reasonably applies equally to both a license application

amendment (18 C.F.R. §§ 4.35(f) and 16.9(b)(3)) and an amendment to

an extant license (id. § 4.202).

Third, the Commission’s rules treat the two terms—“significant

alteration” and “material amendment”—as virtual synonyms. As

discussed, supra pp. 38–40, Order No. 184—the preamble to Section

4.202—describes the former as applying only to “fundamental ” physical

changes to the “plan of development”—the same terms used in Section

4.35(f). 46 Fed. Reg. at 55,931, A43; see also 2019 Rehearing Order P 25

& n.69, ER11–12.

* * *

The Association’s real quarrel is with the Commission’s

interpretation of “significant alteration” and “material amendment,” not

the Commission’s specific application of those terms here. Yet, by

48
reasonably interpreting those terms as generally not applying to

extension-of-time requests, the Commission acted well within its

discretion in denying the Association’s motion to intervene. See Cal.

Trout, 572 F.3d at 1012 (under the “highly deferential ” arbitrary and

capricious standard of review, a court may not reject an agency’s

reasonable interpretation of its own regulations in denying a motion to

intervene); see also Elec. Power Supply Ass’n, 136 S. Ct. at 782 (a court

must uphold an agency decision that bears a “rational connection

between the facts found and the choice made” (internal quotations

omitted)).

B. The Commission has followed a consistent policy for

decades

Besides adhering to its regulations’ text and structure, the

Commission’s interpretation here also comports with its precedent. See

Kisor, 139 S. Ct. at 2417–18 (considering an agency’s past practice).

In 1923, the Commission requested the opinion of its chief counsel

regarding Section 6 of the Act, 16 U.S.C. § 799. To reiterate, Section 6

requires 30 days’ public notice where a licensee seeks to “alter” its

license. The resulting opinion—approved by the Commission—

concluded that public notice is not required for “‘extensions of time

49
within the scope authorized by the act.’” 2019 Rehearing Order P 26,

ER12 (quoting Third Annual Report at 225, A52). The opinion reasoned

that such a change involves no “substantial modification or departure

from the plan of development,” nor does it “‘constitute new terms and

conditions’” that result in “‘substantial modification of the original

provisions of the license.’” Id. (quoting Third Annual Report at 225,

A52).

The Commission has consistently adhered to its regulations, as

informed by the 1923 Opinion. See 2019 Rehearing Order PP 16, 19, 26

ER7, 9–10, 12. It has explained that a proposed license amendment

triggers the right to notice and intervention if it “entail[s] material

changes in the plan of project development or in the terms and

conditions of the license, or could adversely affect the rights of property-

holders in a manner not contemplated by the license, such that the

Commission should have issued notice [of], and entertained

intervention petitions in, these post-issuance filings.”8 Kings River

8
To the extent the Association asserts on reply that a deadline for
construction is a “term[] and condition[] of the license,” that argument
goes nowhere. The quoted phrase is used in the 1923 Opinion, which
expressly states that an extension of time is not a new term or condition
of a license.

50
Conservation Dist., 36 FERC ¶ 61,365, 61,883 (1986); Pac. Gas & Elec.

Co., 40 FERC ¶ 61,035, 61,099 (1987) (same). Applying this rule, the

Commission has consistently held that a delay in construction—due to a

requested stay or extension of time, as here—generally does not qualify

for notice and intervention. See 2019 Rehearing Order P 19 n.53, ER9

(collecting cases). That is because “[e]xtending the time to finish project

construction makes no substantial or material change to the project, nor

will it adversely affect any property holder’s rights.” Baldwin

Hydroelectric Corp., 84 FERC ¶ 61,132, 61,743 (1998); see also Pub. Util.

Dist. No. 1 of Okanogan Cty., 160 FERC ¶ 61,094, PP 6–7 & n.6 (2017);

Felt Mills Energy Partners, L.P., 87 FERC ¶ 61,094, 61,409 (1999).

Indeed, “[t]he Commission has explained that ‘[e]very case where

the Commission concluded that amendments to the applicant’s plan of

development were material involved significant changes to the project’s

physical features.’” 2019 Rehearing Order P 19, ER9–10 (emphasis

added) (quoting Erie Boulevard, 131 FERC ¶ 61,036, P 17, aff’d sub

nom. Green Island, 497 F. App’x 127). Thus, “‘changes that do not

concern a project’s physical features would seldom, if ever, rise to the

level of a fundamental and significant change to the plans of

51
development.’” Id. (quoting Erie, 131 FERC ¶ 61,036, P 17) (invoking 18

C.F.R. § 4.35(f)(1)).

To be sure, one of the Kings River factors triggering notice and

intervention—changes adversely affecting a property holder’s rights in a

way not “contemplated by the license”—is not found in the regulations.

The Commission included it in the interest of due process. Kings River,

36 FERC ¶ 61,135, 61,882–83; see also 2019 Rehearing Order P 15,

ER6–7. The Association argues that factor pertains here because a

deadline extension will make it more difficult to “devote the Project area

to conservation in the foreseeable future.” Br. 40. But granting Eagle

Crest’s requested extensions means property rights will be affected

precisely as “contemplated by the license”: the land will be used for a

pumped-hydro facility, just as the license intends. See City of

Summersville, 86 FERC ¶ 61,149, 61,534 (1999) (explaining that a filing

that provided details of a transmission line route previously approved

did not “adversely affect the rights of property-holders in a manner not

contemplated by the 1997 order” approving the route). Invalidating the

requested extensions would, by contrast, have unanticipated effects on

property rights: the Project area might be converted into protected

52
public land, as the Association desires. See 2019 Rehearing Order P 18,

ER8–9 (explaining that if the extensions are denied and the license

terminated, the Association hopes to petition the National Park Service

to include Project lands within the Joshua Tree boundary).

The Commission rejected a similar argument in Felt Mills. There,

New York Rivers sought to intervene in an extension-of-time, post-

licensing proceeding, asserting an interest in preserving land where the

Commission had licensed a hydroelectric project. 87 FERC ¶ 61,094,

61,409–10. New York Rivers reasoned that but for the license deadline

extension, New York State would have been able to purchase the subject

land for conservation purposes. Id.

The Commission denied intervention. It explained that the

hydroelectric license “d[id] not by itself create or alter property rights

….” Id. at 61,410. Further, New York Rivers had no property interest in

the affected area: a different entity owned the land, and yet another

entity had the option of purchasing it. Id. While New York Rivers may

have had an organizational interest in conserving the land, it lacked a

property interest in the land itself. See id.

53
 Same here. Besides the fact that the 2019 Extension Order affects

property rights precisely as “contemplated by the license,” the

Association asserts no property interest in the Project land at all. And

even if it did, the conclusion in Felt Mills would still hold because the

Project license does not “by itself create or alter property rights.” Id.

C. The Commission’s interpretation aligns with the

Federal Power Act’s purposes

Finally, limiting intervention in post-licensing proceedings to

generally exclude applications for extensions of time is consistent with

the purposes of the Federal Power Act and, indeed, the Commission’s

own regulations. See Kisor, 139 S. Ct. at 2415 (courts should consider a

regulation’s purpose). Congress enacted the Act to promote

“comprehensive development” of the nation’s waters, balanced against

the public interest in participating in hydroelectric project proceedings,

see Pacific Gas, 720 F.2d at 82–83, 89 (citing 16 U.S.C. § 803(a)); Cal.

Trout, 572 F.3d at 1013; see also 16 U.S.C. § 825g(a) (granting the

Commission discretion to allow intervention); Scenic Hudson, 354 F.2d

at 617 (recognizing this discretion); 2019 Rehearing Order PP 15, 17 &

n.47, ER6–8.

54
 The Commission’s regulations reflect the competing interests of

public participation and “comprehensive development.” The

Commission allows intervention in proceedings that evaluate the

project itself, including its need and environmental impacts. See, e.g.,

2014 License Order PP 3–4 & n.6, ER619; see also 2019 Rehearing

Order P 20, ER10 (explaining that the Commission considered project

need and environmental concerns in the original licensing proceeding).

But it generally does not permit intervention in proceedings involving

process requests. See 2019 Rehearing Order P 19, ER9–10. Performing

its gatekeeping function in this way ensures a right to judicial review of

Commission approvals (or denials) of project licenses or material

amendments thereto, see 16 U.S.C. § 825l(b), while allowing “the

Commission to act on numerous hydroelectric compliance matters in a

manner that is administratively efficient ….” 2019 Rehearing Order

P 15, ER6–7; see also Scenic Hudson, 354 F.2d at 617 (the Commission

may “limit the number of those who might otherwise apply for

intervention … to expedite the administrative process”).

The Commission’s approach also screens for collateral attacks by

preventing precisely the sort of license reevaluation the Association

55
attempts here. See 2019 Rehearing Order P 20, ER10; see also supra pp.

26–33. As discussed, Congress expressly sought to inoculate final

licensing decisions from challenge after 60 days. See 16 U.S.C. § 825l(b).

* * *

Determining the meaning of agency regulations requires “careful[]

consider[ation]” of “the[ir] text, structure, history, and purpose.” Kisor,

139 S. Ct. at 2415 (internal quotations omitted). Contrary to the

premise grounding the Association’s entire argument, FERC Rule 214

provides no universal, standalone right to intervene in a Commission

proceeding. See 18 C.F.R. § 385.214(b). Indeed, other parts of the

Commission’s regulations—and the Commission’s decades-old precedent

interpreting them—generally limit intervention to proceedings

considering significant changes to a physical aspect of a hydroelectric

project. Accordingly, the Commission reasonably denied the

Association’s motion to intervene in the proceeding assessing Eagle

Crest’s extension-of-time requests. See Cal. Trout, 572 F.3d at 1012; see

also Elec. Power Supply Ass’n, 136 S. Ct. at 782.

56
IV. The Association’s mandamus petition is meritless

Because the Commission did not abuse its discretion in denying

the Association’s motion to intervene, the Court should not address the

Association’s petition for extraordinary relief. But if it does, it should

deny the mandamus petition: the Association can secure its desired

relief through its petition for judicial review and, in any event, the

Commission did not clearly err in granting Eagle Crest’s extension

requests.

A. The Association can obtain its desired relief through

its petition for judicial review (No. 19-72915)

In assessing a petition for the extraordinary remedy of mandamus

relief, the Court considers, among other things, whether “no other

adequate remedy is available.” Cal. Power Exch., 245 F.3d at 1120

(internal quotations omitted); see also Guerrero, 693 F.3d at 999

(substantially the same). The Association insists it cannot obtain its

desired relief—“challeng[ing] the legality of the [2019 Extension

Order]”—through its petition for judicial review, and therefore argues

mandamus relief is warranted. Mandamus Pet. 16, 20–21. The

Association assumes that, while the Court can grant it intervention, the

Court cannot also compel the Commission to re-open the extension-of-

57
time proceeding. See id. Thus, the Association’s right to intervene

would, it reasons, be a hollow victory: because the 30-day statutory

limit for an intervenor-party to seek agency rehearing of the original

May 2019 Extension Order has long-since expired, there would be no

live proceeding in which to intervene today. See id.

Not so. The Association correctly observes that a party to Eagle

Crest’s extension-of-time proceeding was required to seek rehearing of

the May 2019 Extension Order within 30 days, 16 U.S.C. § 825l(a), and

that doing so was a prerequisite to seeking judicial review, id. § 825l(b).

But the Association appears to assume that, because it was not a party

to that proceeding, the Court is powerless to put it back in the position

it would have been in had the Commission originally granted

intervention. See Mandamus Pet. 16, 20–21.

Far from “protect[ing] this Court’s prospective jurisdiction” over

the 2019 Extension Order, id. at 17, the Association takes an

exceedingly dim view of it. In Green Island, the Second Circuit required

the Commission to reconsider its denial of a motion to intervene. 577

F.3d at 168–69. Without belaboring the point, the court held that if

FERC granted the motion on remand, it was required to re-open the

58
matter on the merits, thereby putting the petitioner in the position it

would have enjoyed had the Commission granted intervention in the

first place. See id. It mattered not that the time for rehearing had

lapsed. See id.

The D.C. Circuit reached the same conclusion decades ago. In

Public Service Commission of New York, the court explained that, if the

Commission’s “order denying intervention was in error, … it will follow

that the proceeding before the Commission would have to be reopened

to permit the [petitioner] to become a full participant in the proceeding

and to present whatever evidence and argument it might choose to

present.” 284 F.2d at 206; see also N. Colo. Water Conservancy Dist., 730

F.2d at 1515 (a court has final authority to decide whether an agency

shall re-open a matter under the Administrative Procedure Act, 5 U.S.C.

§ 706(2)(A)).

A court’s power to effectuate its relief touches on a broader point.

This Court long-ago explained that “the equity jurisdiction of the federal

courts traditionally has permitted the fashioning of broad and flexible

decrees molded to the necessities of the individual case.” United States

v. Coca-Cola Bottling Co. of Los Angeles, 575 F.2d 222, 228 (9th Cir.

59
1978). This rule applies with particular force to disputes that, as here,

concern matters of public law. Nw. Envtl. Def. Ctr. v. Bonneville Power

Admin., 477 F.3d 668, 679–80 (9th Cir. 2007). In such circumstances,

“absen[t] [a] congressional directive,” federal courts retain “broad

power[] to order mandatory affirmative relief, if such relief is necessary

to accomplish complete justice.” Id. at 680–81 (internal quotations and

citation omitted) (citing its “equitable power” to “set aside” an unlawful

action under 5 U.S.C. § 706(2)(A) (emphasis omitted)).

Nothing in the Federal Power Act limits the Court’s equitable

powers necessary to “accomplish complete justice” here. Id. at 681

(internal quotations omitted). Should the Court reverse and remand

the Commission’s denial of the Association’s motion to intervene, it

retains authority to order the Commission to re-open the extension-of-

time proceeding. See 2019 Rehearing Order P 11, ER5. That would put

the Association in the position it would have been in had the

Commission originally granted intervention. And should the

Commission (again) grant Eagle Crest’s extension requests in that

proceeding, the Association could seek judicial review of the

Commission’s decision on the merits at that time. See 16 U.S.C.

60
§ 825l(a)–(b); see also 2019 Rehearing Order P 11, ER5 (explaining

absence of irreparable injury and possibility of future agency

consideration of Association’s merits argument following judicial review

on intervention issue).

Because the Association can secure “full and effective relief ”

through its petition for judicial review, the Court should deny the

Association’s extraordinary mandamus petition on this factor alone. See

Pub. Util. Comm’r of Or. v. Bonneville Power Admin., 767 F.2d 622, 630

(9th Cir. 1985) (Kennedy, J.) (denying mandamus relief where

petitioners failed to show that their injury was not redressable through

a future challenge to an agency decision).

B. The Commission properly applied the 2018 amended

version of the Federal Power Act to Eagle Crest’s
extension requests

In October 2018, Congress enacted the current version of Section

13 of the Federal Power Act. See supra p. 11. While the prior version

allowed only a single extension of time to commence construction of up

to two years, 16 U.S.C. § 806 (2017)—which expired for Eagle Crest in

June 2018 (2019 Rehearing Order P 3, ER1–2)—the revised version

allows multiple extensions for up to eight years, 16 U.S.C. § 806 (2018).

61
Eagle Crest applied for additional two-year extensions for

commencement and completion of construction under the new law in

November and December 2018, respectively—bringing its total

extensions to four years—which the Commission granted in the May

2019 Extension Order. See 2019 Rehearing Order PP 4, 6, ER2–3.

The Commission did not err in applying the 2018 version of

Federal Power Act Section 13 to Eagle Crest’s requests. And even if the

Court disagrees, the point is at least debatable, meaning the Association

fails to show that its right to mandamus relief is “clear and

indisputable.” Cal. Power Exch. 245 F.3d at 1120 (internal quotations

omitted); Guerrero, 693 F.3d at 999.

1. The Commission reasonably interpreted the

Federal Power Act to allow extensions of time
after a license deadline has passed

Section 13 of the Act provides that: “In case the licensee shall not

commence actual construction of the project works, or of any specified

part thereof, within the time prescribed in the license or as extended by

the [C]ommission, then, after due notice given, the license shall … be

terminated upon written order of the [C]ommission.” 16 U.S.C. § 806.

The Association reasons that because—in its view—the Commission

62
was required to terminate Eagle Crest’s license when the deadline

therein expired in June 2018, granting Eagle Crest’s requested

extensions under the October 2018 amended version of Section 13

amounted to impermissible retroactive application of law. Mandamus

Pet. 25–27.

The Association is incorrect. The Commission has reasonably

interpreted Section 13 to mean that it must terminate the license after

the original license deadline expires unless it extends a deadline in a

license. See 2019 Extension Order PP 8–9, ER22–23 (explaining that

because the license was still in effect when Eagle Crest sought an

extension, the Commission acted within its statutory authority in

granting an extension).

The Association cites just one trigger for license termination, but

Section 13 lists two. The Commission shall terminate a license if the

deadline in a license expires “or” if a licensee fails to meet a deadline

that is “extended by the [C]ommission.” 16 U.S.C. § 806 (emphasis

added). The Association’s argument assumes that once a deadline

expires, it cannot be extended—it must be terminated. But nothing in

Section 13—pre- or post-amendment—is so restrictive. Indeed, Section

63
13 lists the two conditions as alternatives: a license deadline can

expire, but the Commission would still not be required to terminate the

license unless it also fails to extend the deadline. See 2019 Extension

Order P 8, ER22 (explaining that the Commission lawfully extended

Eagle Crest’s construction deadline because the license was still in

effect). Cf. Keating v. FERC, 569 F.3d 427, 429, 431 (D.C. Cir. 2009)

(upholding Commission’s termination of a license 11 years after it

granted the single, two-year extension allowed under Section 13, and

where continued delay of construction was “indefinite”).

Another part of Section 13 accommodates this interpretation.

Section 13 requires the Commission to provide notice before terminating

a license for failure to timely commence construction. 16 U.S.C. § 806.

The notice provision contemplates a lag-time between deadline

expiration and license termination. See 18 C.F.R. § 6.3 (“if there is

failure to commence actual construction … within the time prescribed in

the license,” then the Commission must provide at least 90 days’ notice

to the licensee before it may terminate the license); see also, e.g., Fall

Line Hydro Co., 114 FERC ¶ 61,034, PP 4–7, Ordering P B (2006)

(terminating license nearly seven months after deadline expiration, and

64
more than four months after noticing termination). The Association

tacitly concedes as much, asserting that the Commission should have

“timely terminated the Eagle [Crest] license after June 19, 2018.”

Mandamus Pet. 27 (emphasis added).

This delay between deadline expiration and license termination

undermines the Association’s argument: nothing in Federal Power Act

Section 13 precludes extending an expired deadline in a license that has

not yet been terminated, or requires that the Commission act

immediately to terminate a license. See 2019 Extension Order P 8,

ER22. And because Section 13 and the Commission’s implementing

regulations expressly contemplate a license’s continued existence well

after—at least 90 days after, 18 C.F.R. § 6.3—deadline expiration, the

Commission acted reasonably here in extending a deadline under

newly-granted statutory authority.

The Association’s cited cases (Mandamus Pet. 25–26) are not to

the contrary. In Fall Line, the Commission denied an extension request

not because the deadline had passed (which it had), but because the

licensee had exhausted its one-time, two-year extension under Section

13. 114 FERC ¶ 61,034, PP 4–7. Indeed, like the Association’s other

65
 City of Alton, 72 FERC ¶ 62,132, 64,249 (1995); Jewett

City Elec. Light Plant, 65 FERC ¶ 62,227, 64,556 (1993), Fall Line does

not stand for the Association’s asserted proposition: that the

Commission shall terminate a license if a deadline expires, and cannot

thereafter extend the deadline.

For all these reasons, the premise underlying the Association’s

argument—that the Commission may not extend a deadline in a license

after the deadline has passed—is at least debatable, thus undermining

any “firm conviction that the [Commission’s] interpretation … was

incorrect,” and rendering its determination not “clearly erroneous.” See

Van Dusen, 654 F.3d at 841, 846 (internal quotations omitted); see also

id. at 845–46 (holding that the district court’s decision was not “clearly

erroneous,” even while finding it likely erred).9

9
Eagle Crest observes that 18 C.F.R. § 4.202(b) requires an
application for an extension-of-time to be filed three months before a
license deadline expires. See Br. 21–22; Mandamus Pet. 9. It makes no
argument on this point, however, meaning any such basis for
invalidating the 2019 Extension Order is forfeited. See Greenwood v.
FAA, 28 F.3d 971, 977 (9th Cir. 1994); see also Mo. River Energy Servs. v.
FERC, 918 F.3d 954, 960 (D.C. Cir. 2019). In any event, such an
argument would fail because the Commission has discretion to grant
late-filed requests for extensions of time. See 18 C.FR. § 385.2008(b).

66
 Finally, the Commission reasonably exercised its statutory

authority in granting Eagle Crest’s extension requests. See Elec. Power

Supply Ass’n, 136 S. Ct. at 782–83 (upholding Commission decision

under deferential “arbitrary and capricious” standard where the

Commission “examined the relevant considerations” and “articulated a

satisfactory explanation for its action” (internal quotations omitted)).

The Commission found that Eagle Crest had pursued the Project

diligently by, among other things, submitting 16 required

preconstruction monitoring and management plans, and seeking to

obtain necessary land rights from the Bureau of Land Management and

private landowners. 2019 Extension Order P 11, ER23–24; see also Nov.

2018 Extension Request at 4–6, SER73–75; supra p. 12. That

assessment recently bore fruit when, on February 18, 2020, Eagle Crest

received the final right-of-way grant from the Bureau. Mar. 2020

Extension Request at 5–6, SER84–85. Thus, according to its latest filing

with the Commission, it now has the requisite “legal certainty” over

property rights in the core Project area. Id. at 7, SER86.

67
 2. The Commission’s application of the October
2018 version of Section 13 to Eagle Crest’s
extension requests was not retroactive

The Association does not dispute that Eagle Crest’s November

2018 two-year extension request falls within the eight years provided by

the October 2018 version of Federal Power Act Section 13. Instead, it

insists that granting the extension amounts to retroactive application of

the 2018 law. Mandamus Pet. 27.

The Association’s argument rests on a faulty premise: that the

license “expired” with the June 19, 2018 deadline to commence

construction. Mandamus Pet. 27. But, as discussed, this conflates two

occurrences: the passing of a deadline in a license, and termination of

the license itself. See supra pp. 63–65. And because the license

remained in effect when Congress passed the 2018 Infrastructure Act—

and when Eagle Crest filed its November and December 2018 extension

requests—the Commission properly applied the Infrastructure Act’s

amended version of Section 13 to Eagle Crest’s requests: “When the law

is amended before an administrative agency hands down a decision, the

agency must apply the new law.” Urbina-Mauricio v. INS, 989 F.2d

1085, 1088 n.4 (9th Cir. 1993); see also Ziffrin, Inc. v. United States, 318

68
U.S. 73, 78 (1943) (allowing agencies to apply obsolete laws would mean

“the administrative body would issue orders contrary to the existing

legislation”).

Nor is this the first time the Commission has followed this

approach. In City of Batesville, the Commission approved a licensee’s

extension-of-time request filed after legislation authorizing the

extension was enacted, which occurred after the license deadline had

expired, but before license termination. See City of Batesville, 97 FERC

¶ 61,114, 61,566 (2001), and Indep. Cty., 49 FERC ¶ 61,281, 62,062 &

n.3 (1989).

Further, “[w]hen the intervening statute authorizes or affects the

propriety of prospective relief ”—here, an eight-year rather than two-

year extension of time—then “application of the new provision is not

retroactive.” Landgraf v. USI Film Prods., 511 U.S. 244, 273 (1994).

Thus, far from applying a new law retroactively to pre-enactment

conduct, the Commission simply applied the law as it existed to Eagle

Crest’s post-enactment requests.

69
 3. The October 2018 amended version of Section 13
authorized Eagle Crest’s extension requests

Having explained that the Commission properly applied the

October 2018 version of Federal Power Act Section 13 to Eagle Crest’s

extension requests, the remaining question is whether amended Section

13 itself accommodates such extensions.

It does. First, the language of Section 3001 of Public Law No. 115-

270 (the Infrastructure Act)—i.e., the provision codified at Section 13

that expands the prior two-year extension to eight years—reasonably

covers the Project deadline extensions here. That provision states in

full: “Section 13 of the Federal Power Act (16 U.S.C. 806) is amended in

the second sentence by striking ‘once but not longer than two additional

years’ and inserting ‘for not more than 8 additional years.’” Pub. L. No.

115-270, § 3001, A8 (quoted in 2019 Extension Order P 9 & n.16, ER22–

23). The 2019 Extension Order extends Eagle Crest’s construction

deadline by a total of four years—considerably less than the maximum

eight years allowed.

The Association cites two provisions of the Infrastructure Act

(Mandamus Pet. 12–13) for the proposition that amended Section 13

does not permit the 2019 extensions, but they actually fortify the

70
Commission’s decision. Sections 3007 and 3008 establish specific

procedures and time-limits for commencing construction on two

hydroelectric projects. Pub. L. No. 115-270, §§ 3007, 3008, A10–12.

Those provisions state that, “[n]otwithstanding the time period specified

in section 13 … that would otherwise apply,” those two projects will

receive three, two-year extensions to commence construction. Pub. L.

No. 115-270, §§ 3007(a), 3008(d)(1), A10–12 (emphasis added). In other

words, but for Sections 3007 and 3008, those two projects would have

been subject to “the time period specified in section 13”—i.e., up to an

eight-year extension.

Further, contrary to the Association’s suggestion (Mandamus Pet.

12–13, 29), nothing in those project-specific provisions negates amended

Section 13 for other projects. And while Sections 3007 and 3008

separately authorize reinstatement of an “expired license” (Pub. L. No.

115-270, §§ 3007(c), 3008(d)(2), A10–12), as discussed, Section 13 itself

distinguishes between expired deadlines in a license, and termination of

the license itself. See supra pp. 63–65. Nothing in Section 3007 or 3008

vitiates the Commission’s authority under Section 13 to extend a license

deadline after the deadline expires.

71
 In a further attempt to extract a (favorable) meaning from Section

13, the Association cites (Mandamus Pet. 29) an unenacted bill that

would have granted a specific extension to Eagle Crest. But failure of

that bill, H.R. 5817—which was introduced before the 2018

Infrastructure Act was proposed10—says nothing about the Project’s

eligibility for an extension under the Infrastructure Act. Indeed,

“unsuccessful attempts at legislation are not the best guides to

legislative intent” in successfully enacted laws, Red Lion Broad. Co. v.

FCC, 395 U.S. 367, 381 n.11 (1969), and for good reason: “[a] bill can be

proposed for any number of reasons, and it can be rejected for just as

many others,” Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of

Eng’rs, 531 U.S. 159, 170 (2001). Rather than digging for clues in the

graveyard of failed bills, courts look instead to the “contemporaneous

intent of the Congress which enacted” the legislation that actually

became law. Cf. Fogarty v. United States, 340 U.S. 8, 13–14 (1950).

10
S. 3021, 115th Cong. (introduced June 7, 2018); H.R. 5817, 115th
Cong. (introduced May 15, 2018).

72
 * * *

Neither the pre-amendment nor post-amendment version of

Federal Power Act Section 13 “clear[ly] and indisputabl[y]” precludes

the Commission from granting an extension of time to commence

construction after a deadline set forth in a license expires. Cal. Power

Exch., 245 F.3d at 1120; Guerrero, 693 F.3d at 999. Nor did the

Commission commit “clear and indisputable” error in applying the

amended version of Section 13 to Eagle Crest’s requests. Id. Thus, the

Court should reject the Association’s mandamus petition. See Cal.

Power Exch., 245 F.3d at 1124 n.13 (whether a petitioner’s claim is

“clear and certain” is dispositive). Cf. Wilson v. U.S. Dist. Court for E.

Dist. of Cal., 103 F.3d 828, 830 (9th Cir. 1996) (“[W]e will not grant

mandamus relief simply because a district court commits an error, even

one that would ultimately require reversal on appeal.” (internal

quotations omitted)).

In fact, by giving effect to all parts of Federal Power Act Section

13, in a way that fits with Congress’ statutory plan, the Commission’s

interpretation is a reasonable—if not the most reasonable—one,

meaning it deserves deference. See, e.g., Humane Soc’y of U.S. v. Locke,

73
626 F.3d 1040, 1054 (9th Cir. 2010) (citing Chevron, U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984)).

CONCLUSION

For the foregoing reasons, the Court should dismiss the petitions

for judicial review and writ of mandamus for lack of jurisdiction, or,

alternatively, deny the petitions.

Respectfully submitted,

David Morenoff
Acting General Counsel
Robert H. Solomon
Solicitor
/s/ Jared B. Fish
Jared B. Fish
Attorney

Federal Energy Regulatory Commission

Washington, DC 20426
Tel.: (202) 502-8101
Fax: (202) 273-0901
E-mail: Jared.Fish@ferc.gov
April 6, 2020

74
 CERTIFICATE OF COMPLIANCE

In accordance with Fed. R. App. P. 32(a) and 32(g), and Circuit

Rules 21-2 and 32-1, I certify that the Brief for Respondent has been

prepared in a proportionally spaced typeface (using Microsoft Word 365,

in 14-point New Century Schoolbook LT), contains 13,975 words total

(including the response to the mandamus petition), not including the

cover page, the tables of contents and authorities, the glossary, the

certificates of counsel, and the addendum. (The portion of the brief

responding to the mandamus petition is less than 30 pages.)

/s/ Jared B. Fish

Jared B. Fish
Attorney

Federal Energy Regulatory Commission

Washington, DC 20426
Tel.: (202) 502-8101
Fax: (202) 273-0901
E-mail: Jared.Fish@ferc.gov
April 6, 2020
 STATEMENT OF RELATED CASES

Per Circuit Rule 28-2.6, counsel is not aware of any related case

pending in this Court or any other court.

Respectfully submitted,

David Morenoff
Acting General Counsel
Robert H. Solomon
Solicitor
/s/ Jared B. Fish
Jared B. Fish
Attorney

Federal Energy Regulatory Commission

Washington, DC 20426
Tel.: (202) 502-8101
Fax: (202) 273-0901
E-mail: Jared.Fish@ferc.gov
April 6, 2020

2
National Parks Conservation Association v. FERC
9th Cir. Nos. 19-72915, 19-73079 (consolidated)

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the

Clerk of the Court for the United States Court of Appeals for the Ninth

Circuit by using the appellate CM/ECF system on April 6, 2020.

Participants in the case who are registered CM/ECF users will be

served by the appellate CM/ECF system.

/s/ Jared B. Fish

Jared B. Fish
Attorney

Federal Energy Regulatory Commission

Washington, DC 20426
Tel.: (202) 502-8101
Fax: (202) 273-0901
E-mail: Jared.Fish@ferc.gov
 In the United States Court of Appeals
for the Ninth Circuit
Nos. 19-72915 & 19-73079
(Consolidated)

NATIONAL PARKS CONSERVATION ASSOCIATION,

Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION,
Respondent,

EAGLE CREST ENERGY COMPANY,

Respondent-Intervenor.

ON PETITION FOR REVIEW

OF ORDERS OF THE
FEDERAL ENERGY REGULATORY COMMISSION
AND PETITION FOR WRIT OF MANDAMUS

ADDENDUM TO BRIEF FOR RESPONDENT

FEDERAL ENERGY REGULATORY COMMISSION

DAVID MORENOFF
ACTING GENERAL COUNSEL
ROBERT H. SOLOMON
SOLICITOR
JARED B. FISH
ATTORNEY
FOR RESPONDENT
FEDERAL ENERGY REGULATORY
COMMISSION
WASHINGTON, D.C. 20426

APRIL 6, 2020
 TABLE OF CONTENTS

STATUTES: PAGE
Administrative Procedure Act
5 U.S.C. § 706 .............................................................................A-1
All Writs Act
28 U.S.C. § 1651 ........................................................................A-3
America’s Water Infrastructure Act of 2018,
Pub. L. No. 115-270,
132 Stat. 3765, 3862 (2018) (excerpts) ......................................A-5

Federal Power Act

Section 6, 16 U.S.C. § 799 ........................................................A-13
Section 10, 16 U.S.C. § 803 ......................................................A-15
Section 13, 16 U.S.C. § 806 (2017) ...........................................A-19
Section 13, 16 U.S.C. § 806 (2018) ...........................................A-20
Section 308, 16 U.S.C. § 825g ..................................................A-22
Section 313, 16 U.S.C. § 825l ...................................................A-24

REGULATIONS:
18 C.F.R. § 4.35 ........................................................................A-26
18 C.F.R. § 4.200 ......................................................................A-28
18 C.F.R. § 4.202 ......................................................................A-29
18 C.F.R. § 6.3 ..........................................................................A-30
18 C.F.R. § 16.9 ........................................................................A-31
18 C.F.R. § 385.210 ..................................................................A-33
18 C.F.R. § 385.214 ..................................................................A-34
18 C.F.R. § 385.2008 ................................................................A-36
RULE:
Application for License for Major Unconstructed Projects
and Major Modified Projects; Application for License
for Transmission Lines Only; and Application
for Amendment to License,
Order No. 184, 46 Fed. Reg. 55,926 (1981) (excerpts) ............A-37

OTHER AUTHORITY:
Third Annual Report
of the Federal Power Commission (1923) (excerpts) .............A-49
Page 137 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 706

§ 703. Form and venue of proceeding conditions as may be required and to the extent
necessary to prevent irreparable injury, the re-
The form of proceeding for judicial review is
viewing court, including the court to which a
the special statutory review proceeding relevant
case may be taken on appeal from or on applica-
to the subject matter in a court specified by
tion for certiorari or other writ to a reviewing
statute or, in the absence or inadequacy thereof,
court, may issue all necessary and appropriate
any applicable form of legal action, including
process to postpone the effective date of an
actions for declaratory judgments or writs of
agency action or to preserve status or rights
prohibitory or mandatory injunction or habeas
pending conclusion of the review proceedings.
corpus, in a court of competent jurisdiction. If
no special statutory review proceeding is appli- (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 393.)
cable, the action for judicial review may be HISTORICAL AND REVISION NOTES
brought against the United States, the agency
by its official title, or the appropriate officer. Derivation U.S. Code Revised Statutes and
Except to the extent that prior, adequate, and Statutes at Large
exclusive opportunity for judicial review is pro- .................. 5 U.S.C. 1009(d). June 11, 1946, ch. 324, § 10(d),
vided by law, agency action is subject to judicial 60 Stat. 243.
review in civil or criminal proceedings for judi-
cial enforcement. Standard changes are made to conform with the defi-
nitions applicable and the style of this title as outlined
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 392; Pub. L. in the preface of this report.
94–574, § 1, Oct. 21, 1976, 90 Stat. 2721.)
§ 706. Scope of review
HISTORICAL AND REVISION NOTES
To the extent necessary to decision and when
Derivation U.S. Code Revised Statutes and presented, the reviewing court shall decide all
Statutes at Large
relevant questions of law, interpret constitu-
.................. 5 U.S.C. 1009(b). June 11, 1946, ch. 324, § 10(b), tional and statutory provisions, and determine
60 Stat. 243.
the meaning or applicability of the terms of an
agency action. The reviewing court shall—
Standard changes are made to conform with the defi-
nitions applicable and the style of this title as outlined (1) compel agency action unlawfully with-
in the preface to the report. held or unreasonably delayed; and
(2) hold unlawful and set aside agency ac-
AMENDMENTS tion, findings, and conclusions found to be—
1976—Pub. L. 94–574 provided that if no special statu- (A) arbitrary, capricious, an abuse of dis-
tory review proceeding is applicable, the action for ju- cretion, or otherwise not in accordance with
dicial review may be brought against the United law;
States, the agency by its official title, or the appro- (B) contrary to constitutional right,
priate officer as defendant.
power, privilege, or immunity;
§ 704. Actions reviewable (C) in excess of statutory jurisdiction, au-
thority, or limitations, or short of statutory
Agency action made reviewable by statute and right;
final agency action for which there is no other (D) without observance of procedure re-
adequate remedy in a court are subject to judi- quired by law;
cial review. A preliminary, procedural, or inter- (E) unsupported by substantial evidence in
mediate agency action or ruling not directly re- a case subject to sections 556 and 557 of this
viewable is subject to review on the review of title or otherwise reviewed on the record of
the final agency action. Except as otherwise ex- an agency hearing provided by statute; or
pressly required by statute, agency action (F) unwarranted by the facts to the extent
otherwise final is final for the purposes of this that the facts are subject to trial de novo by
section whether or not there has been presented the reviewing court.
or determined an application for a declaratory
order, for any form of reconsideration, or, unless In making the foregoing determinations, the
the agency otherwise requires by rule and pro- court shall review the whole record or those
vides that the action meanwhile is inoperative, parts of it cited by a party, and due account
for an appeal to superior agency authority. shall be taken of the rule of prejudicial error.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 392.) (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 393.)

HISTORICAL AND REVISION NOTES HISTORICAL AND REVISION NOTES

Revised Statutes and Derivation U.S. Code Revised Statutes and

Derivation U.S. Code Statutes at Large Statutes at Large

.................. 5 U.S.C. 1009(c). June 11, 1946, ch. 324, § 10(c), .................. 5 U.S.C. 1009(e). June 11, 1946, ch. 324, § 10(e),
60 Stat. 243. 60 Stat. 243.

Standard changes are made to conform with the defi- Standard changes are made to conform with the defi-
nitions applicable and the style of this title as outlined nitions applicable and the style of this title as outlined
in the preface of this report. in the preface of this report.
ABBREVIATION OF RECORD
§ 705. Relief pending review
Pub. L. 85–791, Aug. 28, 1958, 72 Stat. 941, which au-
When an agency finds that justice so requires, thorized abbreviation of record on review or enforce-
it may postpone the effective date of action ment of orders of administrative agencies and review
taken by it, pending judicial review. On such on the original papers, provided, in section 35 thereof,

A-1
§ 801 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES Page 138

that: ‘‘This Act [see Tables for classification] shall not (ii) the rule is published in the Federal
be construed to repeal or modify any provision of the Register, if so published;
Administrative Procedure Act [see Short Title note set
out preceding section 551 of this title].’’ (B) if the Congress passes a joint resolution
of disapproval described in section 802 relating
CHAPTER 8—CONGRESSIONAL REVIEW OF to the rule, and the President signs a veto of
AGENCY RULEMAKING such resolution, the earlier date—
Sec.
(i) on which either House of Congress votes
801. Congressional review. and fails to override the veto of the Presi-
802. Congressional disapproval procedure. dent; or
803. Special rule on statutory, regulatory, and ju- (ii) occurring 30 session days after the date
dicial deadlines. on which the Congress received the veto and
804. Definitions. objections of the President; or
805. Judicial review.
806. Applicability; severability. (C) the date the rule would have otherwise
807. Exemption for monetary policy. taken effect, if not for this section (unless a
808. Effective date of certain rules. joint resolution of disapproval under section
802 is enacted).
§ 801. Congressional review
(4) Except for a major rule, a rule shall take
(a)(1)(A) Before a rule can take effect, the Fed- effect as otherwise provided by law after submis-
eral agency promulgating such rule shall submit sion to Congress under paragraph (1).
to each House of the Congress and to the Comp- (5) Notwithstanding paragraph (3), the effec-
troller General a report containing— tive date of a rule shall not be delayed by oper-
(i) a copy of the rule; ation of this chapter beyond the date on which
(ii) a concise general statement relating to either House of Congress votes to reject a joint
the rule, including whether it is a major rule; resolution of disapproval under section 802.
and (b)(1) A rule shall not take effect (or con-
(iii) the proposed effective date of the rule. tinue), if the Congress enacts a joint resolution
(B) On the date of the submission of the report of disapproval, described under section 802, of
under subparagraph (A), the Federal agency pro- the rule.
mulgating the rule shall submit to the Comp- (2) A rule that does not take effect (or does not
troller General and make available to each continue) under paragraph (1) may not be re-
House of Congress— issued in substantially the same form, and a new
(i) a complete copy of the cost-benefit analy- rule that is substantially the same as such a
sis of the rule, if any; rule may not be issued, unless the reissued or
(ii) the agency’s actions relevant to sections new rule is specifically authorized by a law en-
603, 604, 605, 607, and 609; acted after the date of the joint resolution dis-
(iii) the agency’s actions relevant to sec- approving the original rule.
tions 202, 203, 204, and 205 of the Unfunded (c)(1) Notwithstanding any other provision of
Mandates Reform Act of 1995; and this section (except subject to paragraph (3)), a
(iv) any other relevant information or re- rule that would not take effect by reason of sub-
quirements under any other Act and any rel- section (a)(3) may take effect, if the President
evant Executive orders. makes a determination under paragraph (2) and
submits written notice of such determination to
(C) Upon receipt of a report submitted under the Congress.
subparagraph (A), each House shall provide cop- (2) Paragraph (1) applies to a determination
ies of the report to the chairman and ranking made by the President by Executive order that
member of each standing committee with juris- the rule should take effect because such rule is—
diction under the rules of the House of Rep- (A) necessary because of an imminent threat
resentatives or the Senate to report a bill to to health or safety or other emergency;
amend the provision of law under which the rule (B) necessary for the enforcement of crimi-
is issued. nal laws;
(2)(A) The Comptroller General shall provide a (C) necessary for national security; or
report on each major rule to the committees of (D) issued pursuant to any statute imple-
jurisdiction in each House of the Congress by menting an international trade agreement.
the end of 15 calendar days after the submission
or publication date as provided in section (3) An exercise by the President of the author-
802(b)(2). The report of the Comptroller General ity under this subsection shall have no effect on
shall include an assessment of the agency’s com- the procedures under section 802 or the effect of
pliance with procedural steps required by para- a joint resolution of disapproval under this sec-
graph (1)(B). tion.
(B) Federal agencies shall cooperate with the (d)(1) In addition to the opportunity for review
Comptroller General by providing information otherwise provided under this chapter, in the
relevant to the Comptroller General’s report case of any rule for which a report was submit-
under subparagraph (A). ted in accordance with subsection (a)(1)(A) dur-
(3) A major rule relating to a report submitted ing the period beginning on the date occurring—
under paragraph (1) shall take effect on the lat- (A) in the case of the Senate, 60 session days,
est of— or
(A) the later of the date occurring 60 days (B) in the case of the House of Representa-
after the date on which— tives, 60 legislative days,
(i) the Congress receives the report sub- before the date the Congress adjourns a session
mitted under paragraph (1); or of Congress through the date on which the same

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§ 1631 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE Page 410

state shall be immune from attachment and PART V—PROCEDURE

from execution in an action brought under sec-
tion 302 of the Cuban Liberty and Democratic Chap. Sec.
Solidarity (LIBERTAD) Act of 1996 to the extent 111. General Provisions ............................. 1651
that the property is a facility or installation 113. Process ................................................... 1691
used by an accredited diplomatic mission for of- 114. Class Actions ........................................ 1711
ficial purposes. 115. Evidence; Documentary .................... 1731
(Added Pub. L. 94–583, § 4(a), Oct. 21, 1976, 90 Stat. 117. Evidence; Depositions ........................ 1781
2897; amended Pub. L. 104–114, title III, § 302(e), 119. Evidence; Witnesses ........................... 1821
Mar. 12, 1996, 110 Stat. 818.) 121 Juries; Trial by Jury .......................... 1861
123. Fees and Costs ..................................... 1911
REFERENCES IN TEXT 125. Pending Actions and Judgments .... 1961
The International Organizations Immunities Act, re- 127. Executions and Judicial Sales ......... 2001
ferred to in subsec. (a), is title I of act Dec. 29, 1945, ch. 129. Moneys Paid into Court .................... 2041
652, 59 Stat. 669, as amended, which is classified prin- 131. Rules of Courts .................................... 2071
cipally to subchapter XVIII (§ 288 et seq.) of chapter 7 of 133. Review—Miscellaneous Provisions 2101
Title 22, Foreign Relations and Intercourse. For com-
plete classification of this Act to the Code, see Short AMENDMENTS
Title note set out under section 288 of Title 22 and
2005—Pub. L. 109–2, § 3(b), Feb. 18, 2005, 119 Stat. 9,
Tables.
Section 302 of the Cuban Liberty and Democratic Sol- added item for chapter 114.
idarity (LIBERTAD) Act of 1996, referred to in subsec.
(c), is section 302 of Pub. L. 104–114, which amended this
CHAPTER 111—GENERAL PROVISIONS
section and enacted section 6082 of Title 22, Foreign Re- Sec.
lations and Intercourse. 1651. Writs.
AMENDMENTS 1652. State laws as rules of decision.
1653. Amendment of pleadings to show jurisdiction.
1996—Subsec. (c). Pub. L. 104–114 added subsec. (c). 1654. Appearance personally or by counsel.
EFFECTIVE DATE OF 1996 AMENDMENT 1655. Lien enforcement; absent defendants.
1656. Creation of new district or division or trans-
Amendment by Pub. L. 104–114 effective Aug. 1, 1996, fer of territory; lien enforcement.
or date determined pursuant to suspension authority of 1657. Priority of civil actions.
President under section 6085(b) or (c) of Title 22, For- 1658. Time limitations on the commencement of
eign Relations and Intercourse, see section 6085 of Title
civil actions arising under Acts of Congress.
22.
1659. Stay of certain actions pending disposition of
EFFECTIVE DATE related proceedings before the United
States International Trade Commission.
Section effective 90 days after Oct. 21, 1976, see sec-
tion 8 of Pub. L. 94–583, set out as a note under section AMENDMENTS
1602 of this title.
1994—Pub. L. 103–465, title III, § 321(b)(1)(B), Dec. 8,
CHAPTER 99—GENERAL PROVISIONS 1994, 108 Stat. 4946, added item 1659.
1990—Pub. L. 101–650, title III, § 313(b), Dec. 1, 1990, 104
Sec. Stat. 5115, added item 1658.
1631. Transfer to cure want of jurisdiction. 1984—Pub. L. 98–620, title IV, § 401(b), Nov. 8, 1984, 98
Stat. 3357, added item 1657.
§ 1631. Transfer to cure want of jurisdiction
Whenever a civil action is filed in a court as § 1651. Writs
defined in section 610 of this title or an appeal, (a) The Supreme Court and all courts estab-
including a petition for review of administrative lished by Act of Congress may issue all writs
action, is noticed for or filed with such a court necessary or appropriate in aid of their respec-
and that court finds that there is a want of ju- tive jurisdictions and agreeable to the usages
risdiction, the court shall, if it is in the interest and principles of law.
of justice, transfer such action or appeal to any (b) An alternative writ or rule nisi may be is-
other such court (or, for cases within the juris- sued by a justice or judge of a court which has
diction of the United States Tax Court, to that jurisdiction.
court) in which the action or appeal could have
been brought at the time it was filed or noticed, (June 25, 1948, ch. 646, 62 Stat. 944; May 24, 1949,
and the action or appeal shall proceed as if it ch. 139, § 90, 63 Stat. 102.)
had been filed in or noticed for the court to HISTORICAL AND REVISION NOTES
which it is transferred on the date upon which it 1948 ACT
was actually filed in or noticed for the court
from which it is transferred. Based on title 28, U.S.C., 1940 ed., §§ 342, 376, 377 (Mar.
3, 1911, ch. 231, §§ 234, 261, 262, 36 Stat. 1156, 1162).
(Added Pub. L. 97–164, title III, § 301(a), Apr. 2, Section consolidates sections 342, 376, and 377 of title
1982, 96 Stat. 55; amended Pub. L. 115–332, § 2, 28, U.S.C., 1940 ed., with necessary changes in phrase-
Dec. 19, 2018, 132 Stat. 4487.) ology.
Such section 342 provided:
AMENDMENTS ‘‘The Supreme Court shall have power to issue writs
2018—Pub. L. 115–332 inserted ‘‘(or, for cases within of prohibition to the district courts, when proceeding
the jurisdiction of the United States Tax Court, to that as courts of admiralty and maritime jurisdiction; and
court)’’ after ‘‘any other such court’’. writs of mandamus, in cases warranted by the prin-
ciples and usages of law, to any courts appointed under
EFFECTIVE DATE the authority of the United States, or to persons hold-
Section effective Oct. 1, 1982, see section 402 of Pub. ing office under the authority of the United States,
L. 97–164, set out as an Effective Date of 1982 Amend- where a State, or an ambassador, or other public min-
ment note under section 171 of this title. ister, or a consul, or vice consul is a party.’’

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Page 411 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1655

Such section 376 provided: § 1653. Amendment of pleadings to show jurisdic-

‘‘Writs of ne exeat may be granted by any justice of tion
the Supreme Court, in cases where they might be
granted by the Supreme Court; and by any district Defective allegations of jurisdiction may be
judge, in cases where they might be granted by the dis- amended, upon terms, in the trial or appellate
trict court of which he is a judge. But no writ of ne courts.
exeat shall be granted unless a suit in equity is com-
menced, and satisfactory proof is made to the court or (June 25, 1948, ch. 646, 62 Stat. 944.)
judge granting the same that the defendant designs
HISTORICAL AND REVISION NOTES
quickly to depart from the United States.’’
Such section 377 provided: Based on title 28, U.S.C., 1940 ed., § 399 (Mar. 3, 1911,
‘‘The Supreme Court and the district courts shall ch. 231, § 274c, as added Mar. 3, 1915, ch. 90, 38 Stat. 956).
have power to issue writs of scire facias. The Supreme Section was extended to permit amendment of all ju-
Court, the circuit courts of appeals, and the district risdictional allegations instead of merely allegations of
courts shall have power to issue all writs not specifi- diversity of citizenship as provided by section 399 of
cally provided for by statute, which may be necessary title 28, U.S.C., 1940 ed.
for the exercise of their respective jurisdictions, and Changes were made in phraseology.
agreeable to the usages and principles of law.’’
The special provisions of section 342 of title 28, § 1654. Appearance personally or by counsel
U.S.C., 1940 ed., with reference to writs of prohibition
and mandamus, admiralty courts and other courts and In all courts of the United States the parties
officers of the United States were omitted as unneces- may plead and conduct their own cases person-
sary in view of the revised section. ally or by counsel as, by the rules of such
The revised section extends the power to issue writs courts, respectively, are permitted to manage
in aid of jurisdiction, to all courts established by Act and conduct causes therein.
of Congress, thus making explicit the right to exercise
powers implied from the creation of such courts. (June 25, 1948, ch. 646, 62 Stat. 944; May 24, 1949,
The provisions of section 376 of title 28, U.S.C., 1940 ch. 139, § 91, 63 Stat. 103.)
ed., with respect to the powers of a justice or judge in
issuing writs of ne exeat were changed and made the HISTORICAL REVISION NOTES
basis of subsection (b) of the revised section but the 1948 ACT
conditions and limitations on the writ of ne exeat were
omitted as merely confirmatory of well-settled prin- Based on title 28, U.S.C., 1940 ed., § 394 (Mar. 3, 1911,
ciples of law. ch. 231, § 272, 36 Stat. 1164).
The provision in section 377 of title 28, U.S.C., 1940 Words ‘‘as, by the rules of the said courts respec-
ed., authorizing issuance of writs of scire facias, was tively, are permitted to manage and conduct causes
omitted in view of rule 81(b) of the Federal Rules of therein,’’ after ‘‘counsel,’’ were omitted as surplusage.
Civil Procedure abolishing such writ. The revised sec- The revised section and section 2071 of this title effect
tion is expressive of the construction recently placed no change in the procedure of the Tax Court before
upon such section by the Supreme Court in U.S. Alkali which certain accountants may be admitted as counsel
Export Assn. v. U.S., 65 S.Ct. 1120, 325 U.S. 196, 89 L.Ed. for litigants under Rule 2 of the Tax Court.
1554, and De Beers Consol. Mines v. U.S., 65 S.Ct. 1130, 325 Changes were made in phraseology.
U.S. 212, 89 L.Ed. 1566. 1949 ACT
1949 ACT This section restores in section 1654 of title 28, U.S.C.,
This section corrects a grammatical error in sub- language of the original law.
section (a) of section 1651 of title 28, U.S.C. AMENDMENTS
AMENDMENTS 1949—Act May 24, 1949, inserted ‘‘as, by the rules of
1949—Subsec. (a). Act May 24, 1949, inserted ‘‘and’’ such courts, respectively, are permitted to manage and
after ‘‘jurisdictions’’. conduct causes therein’’.

WRIT OF ERROR § 1655. Lien enforcement; absent defendants

Act Jan. 31, 1928, ch. 14, § 2, 45 Stat. 54, as amended In an action in a district court to enforce any
Apr. 26, 1928, ch. 440, 45 Stat. 466; June 25, 1948, ch. 646, lien upon or claim to, or to remove any incum-
§ 23, 62 Stat. 990, provided that: ‘‘All Acts of Congress
brance or lien or cloud upon the title to, real or
referring to writs of error shall be construed as amend-
ed to the extent necessary to substitute appeal for writ personal property within the district, where any
of error.’’ defendant cannot be served within the State, or
does not voluntarily appear, the court may
§ 1652. State laws as rules of decision order the absent defendant to appear or plead by
The laws of the several states, except where a day certain.
the Constitution or treaties of the United States Such order shall be served on the absent de-
or Acts of Congress otherwise require or provide, fendant personally if practicable, wherever
shall be regarded as rules of decision in civil ac- found, and also upon the person or persons in
tions in the courts of the United States, in cases possession or charge of such property, if any.
where they apply. Where personal service is not practicable, the
order shall be published as the court may direct,
(June 25, 1948, ch. 646, 62 Stat. 944.) not less than once a week for six consecutive
HISTORICAL REVISION NOTES weeks.
If an absent defendant does not appear or
Based on title 28, U.S.C., 1940 ed., § 725 (R.S. § 721). plead within the time allowed, the court may
‘‘Civil actions’’ was substituted for ‘‘trials at com-
mon law’’ to clarify the meaning of the Rules of Deci-
proceed as if the absent defendant had been
sion Act in the light of the Federal Rules of Civil Pro- served with process within the State, but any
cedure. Such Act has been held to apply to suits in eq- adjudication shall, as regards the absent defend-
uity. ant without appearance, affect only the prop-
Changes were made in phraseology. erty which is the subject of the action. When a

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AMERICA’S WATER INFRASTRUCTURE ACT OF 2018, PL 115-270, October 23,...

PL 115-270, October 23, 2018, 132 Stat 3765

UNITED STATES PUBLIC LAWS

115th Congress - Second Session

Convening January 06, 2018

Additions and Deletions are not identified in this database.

Vetoes are indicated by Text ;
stricken material by Text .

PL 115–270 [S 3021]
October 23, 2018
AMERICA’S WATER INFRASTRUCTURE ACT OF 2018

An Act To provide for improvements to the rivers and harbors of the United
States, to provide for the conservation and development of water and related re-
sources, to provide for water pollution control activities, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of

America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

<< 33 USCA § 2201 NOTE >>

(a) SHORT TITLE.—This Act may be cited as “America’s Water Infrastructure Act of 2018”.

(b) TABLE OF CONTENTS.—The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

TITLE I—WATER RESOURCES DEVELOPMENT

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AMERICA’S WATER INFRASTRUCTURE ACT OF 2018, PL 115-270, October 23,...

Sec. 2019. Report on Federal cross-cutting requirements.

Sec. 2020. Assistance for areas affected by natural disasters.

Sec. 2021. Monitoring for unregulated contaminants.

Sec. 2022. American iron and steel products.

Sec. 2023. Authorization for capitalization grants to States for State drinking water treat-
ment revolving loan funds.

TITLE III—ENERGY

Sec. 3001. Modernizing authorizations for necessary hydropower approvals.

Sec. 3002. Qualifying conduit hydropower facilities.

Sec. 3003. Promoting hydropower development at existing nonpowered dams.

Sec. 3004. Closed–Loop pumped storage projects.

Sec. 3005. Considerations for relicensing terms.

Sec. 3006. Fair ratepayer accountability, transparency, and efficiency standards.

Sec. 3007. J. Bennett Johnston Waterway hydropower extension.

Sec. 3008. Stay and Reinstatement of FERC License No. 11393 for the Mahoney Lake Hy-
droelectric Project.

Sec. 3009. Strategic Petroleum Reserve drawdown.

TITLE IV—OTHER MATTERS

Subtitle A—Clean Water

Sec. 4101. Stormwater infrastructure funding task force.

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AMERICA’S WATER INFRASTRUCTURE ACT OF 2018, PL 115-270, October 23,...

<< 42 USCA § 300j–12 >>

“(1) There are authorized to be appropriated to carry out the purposes of this section—

“(A) $1,174,000,000 for fiscal year 2019;

“(B) $1,300,000,000 for fiscal year 2020; and

“(C) $1,950,000,000 for fiscal year 2021.”;

(2) by striking “To the extent amounts authorized to be” and inserting the following:

<< 42 USCA § 300j–12 >>

“(2) To the extent amounts authorized to be”; and

<< 42 USCA § 300j–12 >>

(3) by striking “(prior to the fiscal year 2004)”.

TITLEIII—ENERGY

SEC. 3001. MODERNIZING AUTHORIZATIONS FOR NECESSARY HYDRO-

POWER APPROVALS.

(a) PRELIMINARY PERMITS.—Section 5 of the Federal Power Act (16 U.S.C. 798) is
amended—

<< 16 USCA § 798 >>

(1) in subsection (a), by striking “three” and inserting “4”; and

(2) in subsection (b)—

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AMERICA’S WATER INFRASTRUCTURE ACT OF 2018, PL 115-270, October 23,...

<< 16 USCA § 798 >>

(A) by striking “Commission may extend the period of a preliminary permit once for not
more than 2 additional years beyond the 3 years” and inserting the following: “Commission
may—

<< 16 USCA § 798 >>

“(1) extend the period of a preliminary permit once for not more than 4 additional years
beyond the 4 years”;

<< 16 USCA § 798 >>

(B) by striking the period at the end and inserting “; and”; and

(C) by adding at the end the following:

<< 16 USCA § 798 >>

“(2) after the end of an extension period granted under paragraph (1), issue an additional
permit to the permittee if the Commission determines that there are extraordinary cir-
cumstances that warrant the issuance of the additional permit.”.

<< 16 USCA § 806 >>

(b) TIME LIMIT FOR CONSTRUCTION OF PROJECT WORKS.—Section 13 of the Federal

Power Act (16 U.S.C. 806) is amended in the second sentence by striking “once but not longer
than two additional years” and inserting “for not more than 8 additional years,”.

<< 16 USCA § 803 NOTE >>

(c) OBLIGATION FOR PAYMENT OF ANNUAL CHARGES.—Any obligation of a licensee

or exemptee for the payment of annual charges under section 10(e) of the Federal Power Act
(16 U.S.C. 803(e)) for a project that has not commenced construction as of the date of
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AMERICA’S WATER INFRASTRUCTURE ACT OF 2018, PL 115-270, October 23,...

enactment of this Act shall commence not earlier than the latest of—

*3863

(1) the date by which the licensee or exemptee is required to commence construction; or

(2) the date of any extension of the deadline under paragraph (1).

SEC. 3002. QUALIFYING CONDUIT HYDROPOWER FACILITIES.

Section 30(a) of the Federal Power Act (16 U.S.C. 823a(a)) is amended—

<< 16 USCA § 823a >>

(1) in paragraph (2)(C), by striking “45 days” and inserting “30 days”; and

<< 16 USCA § 823a >>

(2) in paragraph (3)(C)(ii), by striking “5” and inserting “40”.

SEC. 3003. PROMOTING HYDROPOWER DEVELOPMENT AT EXISTING NONPOW-

ERED DAMS.

Part I of the Federal Power Act (16 U.S.C. 792 et seq.) is amended by adding at the end the
following:

<< 16 USCA § 823e >>

“SEC. 34. PROMOTING HYDROPOWER DEVELOPMENT AT EXISTING NON-

POWERED DAMS.
“(a) EXPEDITED LICENSING PROCESS FOR NON–FEDERAL HYDROPOWER PRO-
JECTS AT EXISTING NONPOWERED DAMS.—

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AMERICA’S WATER INFRASTRUCTURE ACT OF 2018, PL 115-270, October 23,...

“(B) each Commissioner shall add to the record of the Commission a written statement
explaining the views of the Commissioner with respect to the change.

“(2) APPEAL.—If, pursuant to this subsection, a person seeks a rehearing under section
313(a), and the Commission fails to act on the merits of the rehearing request by the date
that is 30 days after the date of the rehearing request *3869 because the Commissioners
are divided two against two, as a result of vacancy, incapacity, or recusal on the Commis-
sion, or if the Commission lacks a quorum, such person may appeal under section 313(b).”.

SEC. 3007. J. BENNETT JOHNSTON WATERWAY HYDROPOWER EXTENSION.

(a) IN GENERAL.—Notwithstanding the time period specified in section 13 of the Federal

Power Act (16 U.S.C. 806) that would otherwise apply to Federal Energy Regulatory Com-
mission project numbers 12756, 12757, and 12758, the Commission may, at the request of
the licensee for the applicable project, and after reasonable notice, in accordance with the
good faith, due diligence, and public interest requirements of that section and the Commis-
sion’s procedures under that section, extend the time period during which such licensee is
required to commence the construction of its applicable project for up to 3 consecutive 2–
year periods from the date of the expiration of the extension originally issued by the Com-
mission under that section for such project.

(b) OBLIGATION FOR PAYMENT OF ANNUAL CHARGES.—Any obligation of a licensee

for a project described in subsection (a) for the payment of annual charges under section
10(e) of the Federal Power Act (16 U.S.C. 803(e)) shall commence when the construction of
the project commences.

(c) REINSTATEMENT OF LICENSE; EFFECTIVE DATE FOR EXTENSION.—

(1) REINSTATEMENT.—If the time period required for commencement of construction of

a project described in subsection (a) has expired prior to the date of the enactment of this
Act, the Commission may reinstate the license for such project, effective as of the date of
the expiration of the license.

(2) EFFECTIVE DATE FOR EXTENSION.—If the Commission reinstates a license under
paragraph (1) for a project, the first extension authorized under subsection (a) with respect

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AMERICA’S WATER INFRASTRUCTURE ACT OF 2018, PL 115-270, October 23,...

to such project shall take effect on the effective date of such reinstatement under para-
graph (1).

SEC. 3008. STAY AND REINSTATEMENT OF FERC LICENSE NO. 11393 FOR
THE MAHONEY LAKE HYDROELECTRIC PROJECT.

(a) DEFINITIONS.—In this section:

(1) COMMISSION.—The term “Commission” means the Federal Energy Regulatory Com-
mission.

(2) LICENSE.—The term “license” means the license for the Commission project num-
bered 11393.

(3) LICENSEE.—The term “licensee” means the holder of the license.

(b) STAY OF LICENSE.—On the request of the licensee, the Commission shall issue an
order continuing the stay of the license.

(c) LIFTING OF STAY.—On the request of the licensee, but not later than 10 years after the
date of enactment of this Act, the Commission shall—

(1) issue an order lifting the stay of the license under subsection (b); and

(2) make the effective date of the license the date on which the stay is lifted under para-
graph (1).

(d) EXTENSION OF LICENSE.—

(1) IN GENERAL.—Notwithstanding the time period specified in section 13 of the Federal

Power Act (16 U.S.C. 806) that *3870 would otherwise apply to the Commission project
numbered 11393, the Commission may, at the request of the licensee, and after reasonable
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AMERICA’S WATER INFRASTRUCTURE ACT OF 2018, PL 115-270, October 23,...

notice, in accordance with the good faith, due diligence, and public interest requirements
of, and the procedures of the Commission under, that section, extend the time period dur-
ing which the licensee is required to commence the construction of the project for not more
than 3 consecutive 2–year periods from the date of the expiration of the extension origi-
nally issued by the Commission.

(2) REINSTATEMENT OF EXPIRED LICENSE.—

(A) IN GENERAL.—If the period required for the commencement of construction of the
project described in paragraph (1) has expired prior to the date of enactment of this Act,
the Commission may reinstate the license effective as of the date of the expiration of the
license.

(B) EXTENSION.—If the Commission reinstates the license under subparagraph (A),
the first extension authorized under paragraph (1) shall take effect on the date of that
expiration.

(e) EFFECT.—Nothing in this Act prioritizes, or creates any advantage or disadvantage to,
Commission project numbered 11393 under Federal law, including the Federal Power Act
(16 U.S.C. 791a et seq.) or the Public Utility Regulatory Policies Act of 1978 (16 U.S.C. 2601
et seq.), as compared to—

(1) any electric generating facility in existence on the date of enactment of this Act; or

(2) any electric generating facility that may be examined, proposed, or developed during
the period of any stay or extension of the license under this Act.

<< 42 USCA § 6241 NOTE >>

SEC. 3009. STRATEGIC PETROLEUM RESERVE DRAWDOWN.

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§ 797d TITLE 16—CONSERVATION Page 1254

CODIFICATION CODIFICATION
Section was enacted as part of the Energy Policy Act Section was enacted as part of the Energy Policy Act
of 1992, and not as part of the Federal Power Act which of 1992, and not as part of the Federal Power Act which
generally comprises this chapter. generally comprises this chapter.
§ 797d. Third party contracting by FERC § 798. Purpose and scope of preliminary permits;
(a) Environmental impact statements transfer and cancellation
Where the Federal Energy Regulatory Com- (a) Purpose
mission is required to prepare a draft or final
Each preliminary permit issued under this
environmental impact statement under the Na-
subchapter shall be for the sole purpose of main-
tional Environmental Policy Act of 1969 (42
taining priority of application for a license
U.S.C. 4321 and following) in connection with an
under the terms of this chapter for such period
application for a license under part I of the Fed-
or periods, not exceeding a total of 4 years, as in
eral Power Act [16 U.S.C. 791a et seq.], the Com-
the discretion of the Commission may be nec-
mission may permit, at the election of the appli-
essary for making examinations and surveys, for
cant, a contractor, consultant or other person
preparing maps, plans, specifications, and esti-
funded by the applicant and chosen by the Com-
mates, and for making financial arrangements.
mission from among a list of such individuals or
companies determined by the Commission to be (b) Extension of period
qualified to do such work, to prepare such state- The Commission may—
ment for the Commission. The contractor shall (1) extend the period of a preliminary permit
execute a disclosure statement prepared by the once for not more than 4 additional years be-
Commission specifying that it has no financial yond the 4 years permitted by subsection (a) if
or other interest in the outcome of the project. the Commission finds that the permittee has
The Commission shall establish the scope of carried out activities under such permit in
work and procedures to assure that the contrac- good faith and with reasonable diligence; and
tor, consultant or other person has no financial (2) after the end of an extension period
or other potential conflict of interest in the out- granted under paragraph (1), issue an addi-
come of the proceeding. Nothing herein shall af- tional permit to the permittee if the Commis-
fect the Commission’s responsibility to comply sion determines that there are extraordinary
with the National Environmental Policy Act of circumstances that warrant the issuance of
1969. the additional permit.
(b) Environmental assessments (c) Permit conditions
Where an environmental assessment is re- Each such permit shall set forth the condi-
quired under the National Environmental Policy tions under which priority shall be maintained.
Act of 1969 (42 U.S.C. 4321 and following) in con-
nection with an application for a license under (d) Non-transferability and cancellation of per-
part I of the Federal Power Act [16 U.S.C. 791a mits
et seq.], the Commission may permit an appli- Such permits shall not be transferable, and
cant, or a contractor, consultant or other person may be canceled by order of the Commission
selected by the applicant, to prepare such envi- upon failure of permittees to comply with the
ronmental assessment. The Commission shall conditions thereof or for other good cause shown
institute procedures, including pre-application after notice and opportunity for hearing.
consultations, to advise potential applicants of (June 10, 1920, ch. 285, pt. I, § 5, 41 Stat. 1067; re-
studies or other information foreseeably re- numbered pt. I and amended, Aug. 26, 1935, ch.
quired by the Commission. The Commission may 687, title II, §§ 203, 212, 49 Stat. 841, 847; Pub. L.
allow the filing of such applicant-prepared envi- 113–23, § 5, Aug. 9, 2013, 127 Stat. 495; Pub. L.
ronmental assessments as part of the applica- 115–270, title III, § 3001(a), Oct. 23, 2018, 132 Stat.
tion. Nothing herein shall affect the Commis- 3862.)
sion’s responsibility to comply with the Na-
tional Environmental Policy Act of 1969. AMENDMENTS
(c) Effective date 2018—Subsec. (a). Pub. L. 115–270, § 3001(a)(1), sub-
This section shall take effect with respect to stituted ‘‘4 years’’ for ‘‘three years’’.
Subsec. (b). Pub. L. 115–270, § 3001(a)(2), inserted dash
license applications filed after October 24, 1992.
after ‘‘The Commission may’’, designated remaining
(Pub. L. 102–486, title XXIV, § 2403, Oct. 24, 1992, provisions as par. (1), substituted ‘‘4 additional years
106 Stat. 3097.) beyond the 4 years’’ for ‘‘2 additional years beyond the
3 years’’, and added par. (2).
REFERENCES IN TEXT 2013—Pub. L. 113–23 designated existing first, second,
The National Environmental Policy Act of 1969, re- and third sentences as subsecs. (a), (c), and (d), respec-
ferred to in subsecs. (a) and (b), is Pub. L. 91–190, Jan. tively, and added subsec. (b).
1, 1970, 83 Stat. 852, as amended, which is classified gen- 1935—Act Aug. 26, 1935, § 203, amended section gener-
erally to chapter 55 (§ 4321 et seq.) of Title 42, The Pub- ally, striking out ‘‘and a license issued’’ at end of sec-
lic Health and Welfare. For complete classification of ond sentence and inserting ‘‘or for other good cause
this Act to the Code, see Short Title note set out under shown after notice and opportunity for hearing’’ in last
section 4321 of Title 42 and Tables. sentence.
The Federal Power Act, referred to in subsecs. (a) and
(b), is act June 10, 1920, ch. 285, 41 Stat. 1063, as amend- § 799. License; duration, conditions, revocation,
ed. Part I of the Act is classified generally to this sub- alteration, or surrender
chapter (§ 791a et seq.). For complete classification of
this Act to the Code, see section 791a of this title and Licenses under this subchapter shall be issued
Tables. for a period not exceeding fifty years. Each such

A-13
Page 1255 TITLE 16—CONSERVATION § 800

license shall be conditioned upon acceptance by States itself, the Commission shall not approve
the licensee of all of the terms and conditions of any application for any project affecting such
this chapter and such further conditions, if any, development, but shall cause to be made such
as the Commission shall prescribe in conformity examinations, surveys, reports, plans, and esti-
with this chapter, which said terms and condi- mates of the cost of the proposed development
tions and the acceptance thereof shall be ex- as it may find necessary, and shall submit its
pressed in said license. Licenses may be revoked findings to Congress with such recommenda-
only for the reasons and in the manner pre- tions as it may find appropriate concerning such
scribed under the provisions of this chapter, and development.
may be altered or surrendered only upon mutual (c) Assumption of project by United States after
agreement between the licensee and the Com- expiration of license
mission after thirty days’ public notice.
Whenever, after notice and opportunity for
(June 10, 1920, ch. 285, pt. I, § 6, 41 Stat. 1067; re- hearing, the Commission determines that the
numbered pt. I and amended, Aug. 26, 1935, ch. United States should exercise its right upon or
687, title II, §§ 204, 212, 49 Stat. 841, 847; Pub. L. after the expiration of any license to take over
104–106, div. D, title XLIII, § 4321(i)(6), Feb. 10, any project or projects for public purposes, the
1996, 110 Stat. 676; Pub. L. 104–316, title I, § 108(a), Commission shall not issue a new license to the
Oct. 19, 1996, 110 Stat. 3832; Pub. L. 105–192, § 2, original licensee or to a new licensee but shall
July 14, 1998, 112 Stat. 625.) submit its recommendation to Congress to-
AMENDMENTS
gether with such information as it may consider
appropriate.
1998—Pub. L. 105–192 inserted at end ‘‘Licenses may be
revoked only for the reasons and in the manner pre- (June 10, 1920, ch. 285, pt. I, § 7, 41 Stat. 1067; re-
scribed under the provisions of this chapter, and may numbered pt. I and amended, Aug. 26, 1935, ch.
be altered or surrendered only upon mutual agreement 687, title II, §§ 205, 212, 49 Stat. 842, 847; Pub. L.
between the licensee and the Commission after thirty 90–451, § 1, Aug. 3, 1968, 82 Stat. 616; Pub. L.
days’ public notice.’’ 99–495, § 2, Oct. 16, 1986, 100 Stat. 1243; Pub. L.
1996—Pub. L. 104–316 struck out at end ‘‘Licenses may 115–325, title II, § 201(a), Dec. 18, 2018, 132 Stat.
be revoked only for the reasons and in the manner pre-
4459.)
scribed under the provisions of this chapter, and may
be altered or surrendered only upon mutual agreement CODIFICATION
between the licensee and the Commission after thirty
Additional provisions in the section as enacted by act
days’ public notice.’’
June 10, 1920, directing the commission to investigate
Pub. L. 104–106 struck out at end ‘‘Copies of all li-
the cost and economic value of the power plant out-
censes issued under the provisions of this subchapter
lined in project numbered 3, House Document num-
and calling for the payment of annual charges shall be
bered 1400, Sixty-second Congress, third session, and
deposited with the General Accounting Office, in com-
also in connection with such project to submit plans
pliance with section 20 of title 41.’’
and estimates of cost necessary to secure an increased
1935—Act Aug. 26, 1935, § 204, amended section gener-
water supply for the District of Columbia, have been
ally, substituting ‘‘thirty days’’ for ‘‘ninety days’’ in
omitted as temporary and executed.
third sentence and inserting last sentence.
AMENDMENTS
EFFECTIVE DATE OF 1996 AMENDMENT
2018—Subsec. (a). Pub. L. 115–325 substituted ‘‘States,
For effective date and applicability of amendment by Indian tribes, and municipalities’’ for ‘‘States and mu-
Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set nicipalities’’.
out as a note under section 2302 of Title 10, Armed 1986—Subsec. (a). Pub. L. 99–495 inserted ‘‘original’’
Forces. after ‘‘hereunder or’’ and substituted ‘‘issued,’’ for ‘‘is-
sued and in issuing licenses to new licensees under sec-
§ 800. Issuance of preliminary permits or licenses tion 808 of this title’’.
(a) Preference 1968—Subsec. (c). Pub. L. 90–451 added subsec. (c).
1935—Act Aug. 26, 1935, § 205, amended section gener-
In issuing preliminary permits hereunder or ally, striking out ‘‘navigation and’’ before ‘‘water re-
original licenses where no preliminary permit sources’’ wherever appearing, and designating para-
has been issued, the Commission shall give pref- graphs as subsecs. (a) and (b).
erence to applications therefor by States, Indian EFFECTIVE DATE OF 1986 AMENDMENT
tribes, and municipalities, provided the plans for
the same are deemed by the Commission equally Amendment by Pub. L. 99–495 effective with respect
to each license, permit, or exemption issued under this
well adapted, or shall within a reasonable time
chapter after Oct. 16, 1986, see section 18 of Pub. L.
to be fixed by the Commission be made equally 99–495, set out as a note under section 797 of this title.
well adapted, to conserve and utilize in the pub-
lic interest the water resources of the region; APPLICABILITY OF 2018 AMENDMENT
and as between other applicants, the Commis- Pub. L. 115–325, title II, § 201(b), Dec. 18, 2018, 132 Stat.
sion may give preference to the applicant the 4459, provided that: ‘‘The amendment made by sub-
plans of which it finds and determines are best section (a) [amending this section] shall not affect—
adapted to develop, conserve, and utilize in the ‘‘(1) any preliminary permit or original license is-
sued before the date of enactment of the Indian Trib-
public interest the water resources of the re-
al Energy Development and Self-Determination Act
gion, if it be satisfied as to the ability of the ap- Amendments of 2017 [Dec. 18, 2018]; or
plicant to carry out such plans. ‘‘(2) an application for an original license, if the
(b) Development of water resources by United Commission has issued a notice accepting that appli-
States; reports cation for filing pursuant to section 4.32(d) of title 18,
Code of Federal Regulations (or successor regula-
Whenever, in the judgment of the Commission, tions), before the date of enactment of the Indian
the development of any water resources for pub- Tribal Energy Development and Self-Determination
lic purposes should be undertaken by the United Act Amendments of 2017.’’

A-14
§ 801 TITLE 16—CONSERVATION Page 1256

DEFINITION OF INDIAN TRIBE § 212, 49 Stat. 847; Pub. L. 99–495, § 14, Oct. 16,
Pub. L. 115–325, title II, § 201(c), Dec. 18, 2018, 132 Stat. 1986, 100 Stat. 1257.)
4459, provided that: ‘‘For purposes of section 7(a) of the CODIFICATION
Federal Power Act (16 U.S.C. 800(a)) (as amended by
subsection (a)), the term ‘Indian tribe’ has the meaning Former subsec. (c), included in the provisions des-
given the term in section 4 of the Indian Self-Deter- ignated as subsec. (a) by Pub. L. 99–495, has been edi-
mination and Education Assistance Act (25 U.S.C. torially redesignated as par. (3) of subsec. (a) as the
5304).’’ probable intent of Congress.

§ 801. Transfer of license; obligations of trans- AMENDMENTS

feree 1986—Pub. L. 99–495 designated existing provisions as
subsec. (a), redesignated former subsecs. (a) and (b) as
No voluntary transfer of any license, or of the pars. (1) and (2) of subsec. (a), and added subsec. (b).
rights thereunder granted, shall be made with-
out the written approval of the commission; and EFFECTIVE DATE OF 1986 AMENDMENT
any successor or assign of the rights of such li- Amendment by Pub. L. 99–495 effective with respect
censee, whether by voluntary transfer, judicial to each license, permit, or exemption issued under this
sale, foreclosure sale, or otherwise, shall be sub- chapter after Oct. 16, 1986, see section 18 of Pub. L.
ject to all the conditions of the license under 99–495, set out as a note under section 797 of this title.
which such rights are held by such licensee and
§ 803. Conditions of license generally
also subject to all the provisions and conditions
of this chapter to the same extent as though All licenses issued under this subchapter shall
such successor or assign were the original li- be on the following conditions:
censee under this chapter: Provided, That a (a) Modification of plans; factors considered to
mortgage or trust deed or judicial sales made secure adaptability of project; recommenda-
thereunder or under tax sales shall not be tions for proposed terms and conditions
deemed voluntary transfers within the meaning
of this section. (1) That the project adopted, including the
maps, plans, and specifications, shall be such as
(June 10, 1920, ch. 285, pt. I, § 8, 41 Stat. 1068; re- in the judgment of the Commission will be best
numbered pt. I, Aug. 26, 1935, ch. 687, title II, adapted to a comprehensive plan for improving
§ 212, 49 Stat. 847.) or developing a waterway or waterways for the
§ 802. Information to accompany application for use or benefit of interstate or foreign commerce,
license; landowner notification for the improvement and utilization of water-
power development, for the adequate protection,
(a) Each applicant for a license under this mitigation, and enhancement of fish and wildlife
chapter shall submit to the commission— (including related spawning grounds and habi-
(1) Such maps, plans, specifications, and esti- tat), and for other beneficial public uses, includ-
mates of cost as may be required for a full un- ing irrigation, flood control, water supply, and
derstanding of the proposed project. Such maps, recreational and other purposes referred to in
plans, and specifications when approved by the section 797(e) of this title 1 if necessary in order
commission shall be made a part of the license; to secure such plan the Commission shall have
and thereafter no change shall be made in said authority to require the modification of any
maps, plans, or specifications until such changes project and of the plans and specifications of the
shall have been approved and made a part of
project works before approval.
such license by the commission.
(2) Satisfactory evidence that the applicant (2) In order to ensure that the project adopted
has complied with the requirements of the laws will be best adapted to the comprehensive plan
of the State or States within which the proposed described in paragraph (1), the Commission shall
project is to be located with respect to bed and consider each of the following:
banks and to the appropriation, diversion, and (A) The extent to which the project is con-
use of water for power purposes and with respect sistent with a comprehensive plan (where one
to the right to engage in the business of develop- exists) for improving, developing, or conserv-
ing, transmitting and distributing power, and in ing a waterway or waterways affected by the
any other business necessary to effect the pur- project that is prepared by—
poses of a license under this chapter. (i) an agency established pursuant to Fed-
(3) 1 Such additional information as the com- eral law that has the authority to prepare
mission may require. such a plan; or
(b) Upon the filing of any application for a li- (ii) the State in which the facility is or
cense (other than a license under section 808 of will be located.
this title) the applicant shall make a good faith (B) The recommendations of Federal and
effort to notify each of the following by certified State agencies exercising administration over
mail: flood control, navigation, irrigation, recre-
(1) Any person who is an owner of record of ation, cultural and other relevant resources of
any interest in the property within the bounds the State in which the project is located, and
of the project. the recommendations (including fish and wild-
(2) Any Federal, State, municipal or other life recommendations) of Indian tribes af-
local governmental agency likely to be inter- fected by the project.
ested in or affected by such application. (C) In the case of a State or municipal appli-
(June 10, 1920, ch. 285, pt. I, § 9, 41 Stat. 1068; re- cant, or an applicant which is primarily en-
numbered pt. I, Aug. 26, 1935, ch. 687, title II, gaged in the generation or sale of electric

1 See Codification note below. 1 So in original. Probably should be followed by ‘‘; and’’.

A-15
Page 1257 TITLE 16—CONSERVATION § 803

power (other than electric power solely from (e) Annual charges payable by licensees; maxi-
cogeneration facilities or small power produc- mum rates; application; review and report to
tion facilities), the electricity consumption ef- Congress
ficiency improvement program of the appli- (1) That the licensee shall pay to the United
cant, including its plans, performance and ca- States reasonable annual charges in an amount
pabilities for encouraging or assisting its cus- to be fixed by the Commission for the purpose of
tomers to conserve electricity cost-effectively, reimbursing the United States for the costs of
taking into account the published policies, re- the administration of this subchapter, including
strictions, and requirements of relevant State any reasonable and necessary costs incurred by
regulatory authorities applicable to such ap- Federal and State fish and wildlife agencies and
plicant. other natural and cultural resource agencies in
(3) Upon receipt of an application for a license, connection with studies or other reviews carried
the Commission shall solicit recommendations out by such agencies for purposes of administer-
from the agencies and Indian tribes identified in ing their responsibilities under this subchapter;
subparagraphs (A) and (B) of paragraph (2) for for recompensing it for the use, occupancy, and
proposed terms and conditions for the Commis- enjoyment of its lands or other property; and for
sion’s consideration for inclusion in the license. the expropriation to the Government of exces-
sive profits until the respective States shall
(b) Alterations in project works make provision for preventing excessive profits
That except when emergency shall require for or for the expropriation thereof to themselves,
the protection of navigation, life, health, or or until the period of amortization as herein
property, no substantial alteration or addition provided is reached, and in fixing such charges
not in conformity with the approved plans shall the Commission shall seek to avoid increasing
be made to any dam or other project works con- the price to the consumers of power by such
structed hereunder of an installed capacity in charges, and any such charges may be adjusted
excess of two thousand horsepower without the from time to time by the Commission as condi-
prior approval of the Commission; and any tions may require: Provided, That, subject to an-
emergency alteration or addition so made shall nual appropriations Acts, the portion of such an-
thereafter be subject to such modification and nual charges imposed by the Commission under
change as the Commission may direct. this subsection to cover the reasonable and nec-
essary costs of such agencies shall be available
(c) Maintenance and repair of project works; li- to such agencies (in addition to other funds ap-
ability of licensee for damages propriated for such purposes) solely for carrying
That the licensee shall maintain the project out such studies and reviews and shall remain
works in a condition of repair adequate for the available until expended: Provided, That when li-
purposes of navigation and for the efficient oper- censes are issued involving the use of Govern-
ation of said works in the development and ment dams or other structures owned by the
transmission of power, shall make all necessary United States or tribal lands embraced within
renewals and replacements, shall establish and Indian reservations the Commission shall, sub-
maintain adequate depreciation reserves for ject to the approval of the Secretary of the Inte-
such purposes, shall so maintain, and operate rior in the case of such dams or structures in
said works as not to impair navigation, and reclamation projects and, in the case of such
shall conform to such rules and regulations as tribal lands, subject to the approval of the In-
the Commission may from time to time pre- dian tribe having jurisdiction of such lands as
scribe for the protection of life, health, and provided in section 5123 of title 25, fix a reason-
property. Each licensee hereunder shall be liable able annual charge for the use thereof, and such
for all damages occasioned to the property of charges may with like approval be readjusted by
others by the construction, maintenance, or op- the Commission at the end of twenty years after
eration of the project works or of the works ap- the project is available for service and at periods
purtenant or accessory thereto, constructed of not less than ten years thereafter upon notice
under the license and in no event shall the and opportunity for hearing: Provided further,
United States be liable therefor. That licenses for the development, transmission,
or distribution of power by States or municipali-
(d) Amortization reserves ties shall be issued and enjoyed without charge
That after the first twenty years of operation, to the extent such power is sold to the public
out of surplus earned thereafter, if any, accumu- without profit or is used by such State or mu-
lated in excess of a specified reasonable rate of nicipality for State or municipal purposes, ex-
return upon the net investment of a licensee in cept that as to projects constructed or to be con-
any project or projects under license, the li- structed by States or municipalities primarily
censee shall establish and maintain amortiza- designed to provide or improve navigation, li-
tion reserves, which reserves shall, in the discre- censes therefor shall be issued without charge;
tion of the Commission, be held until the termi- and that licenses for the development, trans-
nation of the license or be applied from time to mission, or distribution of power for domestic,
time in reduction of the net investment. Such mining, or other beneficial use in projects of not
specified rate of return and the proportion of more than two thousand horsepower installed
such surplus earnings to be paid into and held in capacity may be issued without charge, except
such reserves shall be set forth in the license. on tribal lands within Indian reservations; but
For any new license issued under section 808 of in no case shall a license be issued free of charge
this title, the amortization reserves under this for the development and utilization of power
subsection shall be maintained on and after the created by any Government dam and that the
effective date of such new license. amount charged therefor in any license shall be

A-16
§ 803 TITLE 16—CONSERVATION Page 1258

such as determined by the Commission: Provided (f) Reimbursement by licensee of other licensees,
however, That no charge shall be assessed for the etc.
use of any Government dam or structure by any That whenever any licensee hereunder is di-
licensee if, before January 1, 1985, the Secretary rectly benefited by the construction work of an-
of the Interior has entered into a contract with other licensee, a permittee, or of the United
such licensee that meets each of the following States of a storage reservoir or other headwater
requirements: improvement, the Commission shall require as a
(A) The contract covers one or more projects condition of the license that the licensee so ben-
for which a license was issued by the Commis- efited shall reimburse the owner of such res-
sion before January 1, 1985. ervoir or other improvements for such part of
(B) The contract contains provisions specifi- the annual charges for interest, maintenance,
cally providing each of the following: and depreciation thereon as the Commission
(i) A powerplant may be built by the li-
may deem equitable. The proportion of such
censee utilizing irrigation facilities con-
charges to be paid by any licensee shall be deter-
structed by the United States.
(ii) The powerplant shall remain in the ex- mined by the Commission. The licensees or per-
clusive control, possession, and ownership of mittees affected shall pay to the United States
the licensee concerned. the cost of making such determination as fixed
(iii) All revenue from the powerplant and by the Commission.
from the use, sale, or disposal of electric en- Whenever such reservoir or other improve-
ergy from the powerplant shall be, and re- ment is constructed by the United States the
main, the property of such licensee. Commission shall assess similar charges against
any licensee directly benefited thereby, and any
(C) The contract is an amendatory, supple- amount so assessed shall be paid into the Treas-
mental and replacement contract between the ury of the United States, to be reserved and ap-
United States and: (i) the Quincy-Columbia propriated as a part of the special fund for head-
Basin Irrigation District (Contract No. water improvements as provided in section 810
14–06–100–6418); (ii) the East Columbia Basin Ir- of this title.
rigation District (Contract No. 14–06–100–6419); Whenever any power project not under license
or, (iii) the South Columbia Basin Irrigation is benefited by the construction work of a li-
District (Contract No. 14–06–100–6420). censee or permittee, the United States or any
This paragraph shall apply to any project cov- agency thereof, the Commission, after notice to
ered by a contract referred to in this paragraph the owner or owners of such unlicensed project,
only during the term of such contract unless shall determine and fix a reasonable and equi-
otherwise provided by subsequent Act of Con- table annual charge to be paid to the licensee or
gress. In the event an overpayment of any permittee on account of such benefits, or to the
charge due under this section shall be made by United States if it be the owner of such head-
a licensee, the Commission is authorized to water improvement.
allow a credit for such overpayment when (g) Conditions in discretion of commission
charges are due for any subsequent period.
Such other conditions not inconsistent with
(2) In the case of licenses involving the use of
the provisions of this chapter as the commission
Government dams or other structures owned by
may require.
the United States, the charges fixed (or read-
justed) by the Commission under paragraph (1) (h) Monopolistic combinations; prevention or
for the use of such dams or structures shall not minimization of anticompetitive conduct; ac-
exceed 1 mill per kilowatt-hour for the first 40 tion by Commission regarding license and
gigawatt-hours of energy a project produces in operation and maintenance of project
any year, 11⁄2 mills per kilowatt-hour for over 40 (1) Combinations, agreements, arrangements,
up to and including 80 gigawatt-hours in any or understandings, express or implied, to limit
year, and 2 mills per kilowatt-hour for any en- the output of electrical energy, to restrain
ergy the project produces over 80 gigawatt-hours trade, or to fix, maintain, or increase prices for
in any year. Except as provided in subsection (f), electrical energy or service are hereby prohib-
such charge shall be the only charge assessed by ited.
any agency of the United States for the use of (2) That conduct under the license that: (A) re-
such dams or structures. sults in the contravention of the policies ex-
(3) The provisions of paragraph (2) shall apply pressed in the antitrust laws; and (B) is not
with respect to— otherwise justified by the public interest consid-
(A) all licenses issued after October 16, 1986; ering regulatory policies expressed in other ap-
and plicable law (including but not limited to those
(B) all licenses issued before October 16, 1986, contained in subchapter II of this chapter) shall
which— be prevented or adequately minimized by means
(i) did not fix a specific charge for the use of conditions included in the license prior to its
of the Government dam or structure in- issuance. In the event it is impossible to prevent
volved; and or adequately minimize the contravention, the
(ii) did not specify that no charge would be Commission shall refuse to issue any license to
fixed for the use of such dam or structure. the applicant for the project and, in the case of
(4) Every 5 years, the Commission shall review an existing project, shall take appropriate ac-
the appropriateness of the annual charge limita- tion to provide thereafter for the operation and
tions provided for in this subsection and report maintenance of the affected project and for the
to Congress concerning its recommendations issuing of a new license in accordance with sec-
thereon. tion 808 of this title.

A-17
Page 1259 TITLE 16—CONSERVATION § 803

(i) Waiver of conditions AMENDMENTS

In issuing licenses for a minor part only of a 1992—Subsec. (e)(1). Pub. L. 102–486, in introductory
complete project, or for a complete project of provisions, substituted ‘‘administration of this sub-
not more than two thousand horsepower in- chapter, including any reasonable and necessary costs
incurred by Federal and State fish and wildlife agencies
stalled capacity, the Commission may in its dis- and other natural and cultural resource agencies in
cretion waive such conditions, provisions, and connection with studies or other reviews carried out by
requirements of this subchapter, except the li- such agencies for purposes of administering their re-
cense period of fifty years, as it may deem to be sponsibilities under this subchapter;’’ for ‘‘administra-
to the public interest to waive under the cir- tion of this subchapter;’’ and inserted ‘‘Provided, That,
cumstances: Provided, That the provisions hereof subject to annual appropriations Acts, the portion of
shall not apply to annual charges for use of such annual charges imposed by the Commission under
lands within Indian reservations. this subsection to cover the reasonable and necessary
costs of such agencies shall be available to such agen-
(j) Fish and wildlife protection, mitigation and cies (in addition to other funds appropriated for such
enhancement; consideration of recommenda- purposes) solely for carrying out such studies and re-
tions; findings views and shall remain available until expended:’’ after
‘‘as conditions may require:’’.
(1) That in order to adequately and equitably 1986—Subsec. (a). Pub. L. 99–495, § 3(b), designated ex-
protect, mitigate damages to, and enhance, fish isting provisions as par. (1), inserted ‘‘for the adequate
and wildlife (including related spawning grounds protection, mitigation, and enhancement of fish and
and habitat) affected by the development, oper- wildlife (including related spawning grounds and habi-
ation, and management of the project, each li- tat),’’ after ‘‘water-power development’’, inserted ‘‘irri-
gation, flood control, water supply, and’’ after ‘‘includ-
cense issued under this subchapter shall include
ing’’, which words were inserted after ‘‘public uses, in-
conditions for such protection, mitigation, and cluding’’ as the probable intent of Congress, sub-
enhancement. Subject to paragraph (2), such stituted ‘‘and other purposes referred to in section
conditions shall be based on recommendations 797(e) of this title’’ for ‘‘purposes; and’’, and added pars.
received pursuant to the Fish and Wildlife Co- (2) and (3).
ordination Act (16 U.S.C. 661 et seq.) from the Subsec. (e). Pub. L. 99–546 inserted proviso that no
National Marine Fisheries Service, the United charge be assessed for use of Government dam or struc-
States Fish and Wildlife Service, and State fish ture by licensee if, before Jan. 1, 1985, licensee and Sec-
retary entered into contract which met requirements of
and wildlife agencies.
date of license, powerplant construction, ownership,
(2) Whenever the Commission believes that and revenue, etc.
any recommendation referred to in paragraph (1) Pub. L. 99–495, § 9(a), designated existing provisions as
may be inconsistent with the purposes and re- par. (1) and added pars. (2) to (4).
quirements of this subchapter or other applica- Subsec. (h). Pub. L. 99–495, § 13, designated existing
ble law, the Commission and the agencies re- provisions as par. (1) and added par. (2).
ferred to in paragraph (1) shall attempt to re- Subsec. (j). Pub. L. 99–495, § 3(c), added subsec. (j).
solve any such inconsistency, giving due weight 1968—Subsec. (d). Pub. L. 90–451 provided for mainte-
nance of amortization reserves on and after effective
to the recommendations, expertise, and statu- date of new licenses.
tory responsibilities of such agencies. If, after 1962—Subsecs. (b), (e), (i). Pub. L. 87–647 substituted
such attempt, the Commission does not adopt in ‘‘two thousand horsepower’’ for ‘‘one hundred horse-
whole or in part a recommendation of any such power’’.
agency, the Commission shall publish each of 1935—Subsec. (a). Act Aug. 26, 1935, § 206, substituted
the following findings (together with a state- ‘‘plan for improving or developing a waterway or water-
ment of the basis for each of the findings): ways for the use or benefit of interstate or foreign com-
merce, for the improvement and utilization of water-
(A) A finding that adoption of such recom-
power development, and for other beneficial uses, in-
mendation is inconsistent with the purposes cluding recreational purposes’’ for ‘‘scheme of improve-
and requirements of this subchapter or with ment and utilization for the purposes of navigation, of
other applicable provisions of law. water-power development, and of other beneficial pub-
(B) A finding that the conditions selected by lic uses,’’ and ‘‘such plan’’ for ‘‘such scheme’’.
the Commission comply with the requirements Subsec. (b). Act Aug. 26, 1935, § 206, inserted ‘‘in-
of paragraph (1). stalled’’ before ‘‘capacity’’.
Subsec. (d). Act Aug. 26, 1935, § 206, substituted ‘‘net
Subsection (i) shall not apply to the conditions investment’’ for ‘‘actual, legitimate investment’’.
required under this subsection. Subsec. (e). Act Aug. 26, 1935, § 206, amended subsec.
(e) generally.
(June 10, 1920, ch. 285, pt. I, § 10, 41 Stat. 1068; re- Subsec. (f). Act Aug. 26, 1935, § 206, inserted last sen-
numbered pt. I and amended, Aug. 26, 1935, ch. tence to first par., and inserted last par.
687, title II, §§ 206, 212, 49 Stat. 842, 847; Pub. L. Subsec. (i). Act Aug. 26, 1935, § 206, inserted ‘‘in-
87–647, Sept. 7, 1962, 76 Stat. 447; Pub. L. 90–451, stalled’’ before ‘‘capacity’’, and ‘‘annual charges for use
§ 4, Aug. 3, 1968, 82 Stat. 617; Pub. L. 99–495, of’’ before ‘‘lands’’ in proviso.
§§ 3(b), (c), 9(a), 13, Oct. 16, 1986, 100 Stat. 1243, EFFECTIVE DATE OF 1986 AMENDMENT
1244, 1252, 1257; Pub. L. 99–546, title IV, § 401, Oct.
Amendment by Pub. L. 99–495 effective with respect
27, 1986, 100 Stat. 3056; Pub. L. 102–486, title XVII,
to each license, permit, or exemption issued under this
§ 1701(a), Oct. 24, 1992, 106 Stat. 3008.) chapter after Oct. 16, 1986, see section 18 of Pub. L.
99–495, set out as a note under section 797 of this title.
REFERENCES IN TEXT
SAVINGS PROVISION
The Fish and Wildlife Coordination Act, referred to
in subsec. (j)(1), is act Mar. 10, 1934, ch. 55, 48 Stat. 401, Pub. L. 99–495, § 9(b), Oct. 16, 1986, 100 Stat. 1252, pro-
as amended, which is classified generally to sections vided that: ‘‘Nothing in this Act [see Short Title of 1986
661 to 666c of this title. For complete classification of Amendment note set out under section 791a of this
this Act to the Code, see Short Title note set out under title] shall affect any annual charge to be paid pursu-
section 661 of this title and Tables. ant to section 10(e) of the Federal Power Act [16 U.S.C.

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§ 805 TITLE 16—CONSERVATION Page 1256

such navigation facilities, whether constructed ible with the public interests. In case the li-
by the licensee or by the United States. censee shall not commence actual construction
(June 10, 1920, ch. 285, pt. I, § 11, 41 Stat. 1070; re- of the project works, or of any specified part
numbered pt. I, Aug. 26, 1935, ch. 687, title II, thereof, within the time prescribed in the li-
§ 212, 49 Stat. 847; July 26, 1947, ch. 343, title II, cense or as extended by the commission, then,
§ 205(a), 61 Stat. 501.) after due notice given, the license shall, as to
such project works or part thereof, be termi-
CHANGE OF NAME nated upon written order of the commission. In
Department of War designated Department of the case the construction of the project works, or of
Army and title of Secretary of War changed to Sec- any specified part thereof, has been begun but
retary of the Army by section 205(a) of act July 26, 1947, not completed within the time prescribed in the
ch. 343, title II, 61 Stat. 501. Section 205(a) of act July license, or as extended by the commission, then
26, 1947, was repealed by section 53 of act Aug. 10, 1956, the Attorney General, upon the request of the
ch. 1041, 70A Stat. 641. Section 1 of act Aug. 10, 1956, en-
acted ‘‘Title 10, Armed Forces’’ which in sections 3010
commission, shall institute proceedings in eq-
to 3013 continued military Department of the Army uity in the district court of the United States
under administrative supervision of Secretary of the for the district in which any part of the project
Army. is situated for the revocation of said license, the
sale of the works constructed, and such other
§ 805. Participation by Government in costs of equitable relief as the case may demand, as pro-
locks, etc. vided for in section 820 of this title.
Whenever application is filed for a project (June 10, 1920, ch. 285, pt. I, § 13, 41 Stat. 1071; re-
hereunder involving navigable waters of the numbered pt. I, Aug. 26, 1935, ch. 687, title II,
United States, and the commission shall find § 212, 49 Stat. 847.)
upon investigation that the needs of navigation
REFERENCES IN TEXT
require the construction of a lock or locks or
other navigation structures, and that such Proceedings in equity, referred to in text, were abol-
structures cannot, consistent with a reasonable ished by the adoption of rule 2 of the Federal Rules of
Civil Procedure, set out in the Appendix to Title 28, Ju-
investment cost to the applicant, be provided in
diciary and Judicial Procedure, which provided that
the manner specified in subsection (a) of section ‘‘there shall be one form of action to be known as ‘civil
804 of this title, the commission may grant the action’ ’’.
application with the provision to be expressed in
the license that the licensee will install the nec- § 807. Right of Government to take over project
essary navigation structures if the Government works
fails to make provision therefor within a time to (a) Compensation; condemnation by Federal or
be fixed in the license and cause a report upon State Government
such project to be prepared, with estimates of
Upon not less than two years’ notice in writ-
cost of the power development and of the navi-
ing from the commission the United States shall
gation structures, and shall submit such report
have the right upon or after the expiration of
to Congress with such recommendations as it
any license to take over and thereafter to main-
deems appropriate concerning the participation
tain and operate any project or projects as de-
of the United States in the cost of construction
fined in section 796 of this title, and covered in
of such navigation structures.
whole or in part by the license, or the right to
(June 10, 1920, ch. 285, pt. I, § 12, 41 Stat. 1070; re- take over upon mutual agreement with the li-
numbered pt. I, Aug. 26, 1935, ch. 687, title II, censee all property owned and held by the li-
§ 212, 49 Stat. 847.) censee then valuable and serviceable in the de-
velopment, transmission, or distribution of
§ 806. Time limit for construction of project
power and which is then dependent for its use-
works; extension of time; termination or rev-
fulness upon the continuance of the license, to-
ocation of licenses for delay
gether with any lock or locks or other aids to
The licensee shall commence the construction navigation constructed at the expense of the li-
of the project works within the time fixed in the censee, upon the condition that before taking
license, which shall not be more than two years possession it shall pay the net investment of the
from the date thereof, shall thereafter in good licensee in the project or projects taken, not to
faith and with due diligence prosecute such con- exceed the fair value of the property taken, plus
struction, and shall within the time fixed in the such reasonable damages, if any, to property of
license complete and put into operation such the licensee valuable, serviceable, and depend-
part of the ultimate development as the com- ent as above set forth but not taken, as may be
mission shall deem necessary to supply the rea- caused by the severance therefrom of property
sonable needs of the then available market, and taken, and shall assume all contracts entered
shall from time to time thereafter construct into by the licensee with the approval of the
such portion of the balance of such development Commission. The net investment of the licensee
as the commission may direct, so as to supply in the project or projects so taken and the
adequately the reasonable market demands amount of such severance damages, if any, shall
until such development shall have been com- be determined by the Commission after notice
pleted. The periods for the commencement of and opportunity for hearing. Such net invest-
construction may be extended once but not ment shall not include or be affected by the
longer than two additional years and the period value of any lands, rights-of-way, or other prop-
for the completion of construction carried on in erty of the United States licensed by the Com-
good faith and with reasonable diligence may be mission under this chapter, by the license or by
extended by the commission when not incompat- good will, going value, or prospective revenues;

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§ 804 TITLE 16—CONSERVATION Page 1260

803(e)] to Indian tribes for the use of their lands within under administrative supervision of Secretary of the
Indian reservations.’’ Army.
TERMINATION OF REPORTING REQUIREMENTS § 805. Participation by Government in costs of
For termination, effective May 15, 2000, of provisions locks, etc.
in subsec. (e)(4) of this section relating to reporting
recommendations to Congress every 5 years, see section
Whenever application is filed for a project
3003 of Pub. L. 104–66, as amended, set out as a note hereunder involving navigable waters of the
under section 1113 of Title 31, Money and Finance, and United States, and the commission shall find
page 91 of House Document No. 103–7. upon investigation that the needs of navigation
require the construction of a lock or locks or
OBLIGATION FOR PAYMENT OF ANNUAL CHARGES other navigation structures, and that such
Pub. L. 115–270, title III, § 3001(c), Oct. 23, 2018, 132 structures cannot, consistent with a reasonable
Stat. 3862, provided that: ‘‘Any obligation of a licensee investment cost to the applicant, be provided in
or exemptee for the payment of annual charges under the manner specified in subsection (a) of section
section 10(e) of the Federal Power Act (16 U.S.C. 803(e))
804 of this title, the commission may grant the
for a project that has not commenced construction as
of the date of enactment of this Act [Oct. 23, 2018] shall application with the provision to be expressed in
commence not earlier than the latest of— the license that the licensee will install the nec-
‘‘(1) the date by which the licensee or exemptee is essary navigation structures if the Government
required to commence construction; or fails to make provision therefor within a time to
‘‘(2) the date of any extension of the deadline under be fixed in the license and cause a report upon
paragraph (1).’’ such project to be prepared, with estimates of
cost of the power development and of the navi-
§ 804. Project works affecting navigable waters;
gation structures, and shall submit such report
requirements insertable in license
to Congress with such recommendations as it
If the dam or other project works are to be deems appropriate concerning the participation
constructed across, along, or in any of the navi- of the United States in the cost of construction
gable waters of the United States, the commis- of such navigation structures.
sion may, insofar as it deems the same reason- (June 10, 1920, ch. 285, pt. I, § 12, 41 Stat. 1070; re-
ably necessary to promote the present and fu- numbered pt. I, Aug. 26, 1935, ch. 687, title II,
ture needs of navigation and consistent with a § 212, 49 Stat. 847.)
reasonable investment cost to the licensee, in-
clude in the license any one or more of the fol- § 806. Time limit for construction of project
lowing provisions or requirements: works; extension of time; termination or rev-
(a) That such licensee shall, to the extent nec- ocation of licenses for delay
essary to preserve and improve navigation fa-
The licensee shall commence the construction
cilities, construct, in whole or in part, without
of the project works within the time fixed in the
expense to the United States, in connection with
license, which shall not be more than two years
such dam, a lock or locks, booms, sluices, or
from the date thereof, shall thereafter in good
other structures for navigation purposes, in ac-
faith and with due diligence prosecute such con-
cordance with plans and specifications approved
struction, and shall within the time fixed in the
by the Chief of Engineers and the Secretary of
license complete and put into operation such
the Army and made part of such license.
part of the ultimate development as the com-
(b) That in case such structures for navigation
mission shall deem necessary to supply the rea-
purposes are not made a part of the original con-
sonable needs of the then available market, and
struction at the expense of the licensee, then
shall from time to time thereafter construct
whenever the United States shall desire to com-
such portion of the balance of such development
plete such navigation facilities the licensee
as the commission may direct, so as to supply
shall convey to the United States, free of cost,
adequately the reasonable market demands
such of its land and its rights-of-way and such
until such development shall have been com-
right of passage through its dams or other struc-
pleted. The periods for the commencement of
tures, and permit such control of pools as may
construction may be extended for not more than
be required to complete such navigation facili-
8 additional years, and the period for the com-
ties.
pletion of construction carried on in good faith
(c) That such licensee shall furnish free of cost
and with reasonable diligence may be extended
to the United States power for the operation of
by the commission when not incompatible with
such navigation facilities, whether constructed
the public interests. In case the licensee shall
by the licensee or by the United States.
not commence actual construction of the
(June 10, 1920, ch. 285, pt. I, § 11, 41 Stat. 1070; re- project works, or of any specified part thereof,
numbered pt. I, Aug. 26, 1935, ch. 687, title II, within the time prescribed in the license or as
§ 212, 49 Stat. 847; July 26, 1947, ch. 343, title II, extended by the commission, then, after due no-
§ 205(a), 61 Stat. 501.) tice given, the license shall, as to such project
CHANGE OF NAME
works or part thereof, be terminated upon writ-
ten order of the commission. In case the con-
Department of War designated Department of the struction of the project works, or of any speci-
Army and title of Secretary of War changed to Sec- fied part thereof, has been begun but not com-
retary of the Army by section 205(a) of act July 26, 1947,
ch. 343, title II, 61 Stat. 501. Section 205(a) of act July
pleted within the time prescribed in the license,
26, 1947, was repealed by section 53 of act Aug. 10, 1956, or as extended by the commission, then the At-
ch. 1041, 70A Stat. 641. Section 1 of act Aug. 10, 1956, en- torney General, upon the request of the commis-
acted ‘‘Title 10, Armed Forces’’ which in sections 3010 sion, shall institute proceedings in equity in the
to 3013 continued military Department of the Army district court of the United States for the dis-

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Page 1261 TITLE 16—CONSERVATION § 808

trict in which any part of the project is situated (b) Relicensing proceedings; Federal agency rec-
for the revocation of said license, the sale of the ommendations of take over by Government;
works constructed, and such other equitable re- stay of orders for new licenses; termination
lief as the case may demand, as provided for in of stay; notice to Congress
section 820 of this title. In any relicensing proceeding before the Com-
(June 10, 1920, ch. 285, pt. I, § 13, 41 Stat. 1071; re- mission any Federal department or agency may
numbered pt. I, Aug. 26, 1935, ch. 687, title II, timely recommend, pursuant to such rules as
§ 212, 49 Stat. 847; amended Pub. L. 115–270, title the Commission shall prescribe, that the United
III, § 3001(b), Oct. 23, 2018, 132 Stat. 3862.) States exercise its right to take over any
REFERENCES IN TEXT project or projects. Thereafter, the Commission,
if its 1 does not itself recommend such action
Proceedings in equity, referred to in text, were abol-
pursuant to the provisions of section 800(c) of
ished by the adoption of rule 2 of the Federal Rules of
Civil Procedure, set out in the Appendix to Title 28, Ju- this title, shall upon motion of such department
diciary and Judicial Procedure, which provided that or agency stay the effective date of any order is-
‘‘there shall be one form of action to be known as ‘civil suing a license, except an order issuing an an-
action’ ’’. nual license in accordance with the proviso of
AMENDMENTS section 808(a) of this title, for two years after
the date of issuance of such order, after which
2018—Pub. L. 115–270 substituted ‘‘for not more than
period the stay shall terminate, unless termi-
8 additional years,’’ for ‘‘once but not longer than two
additional years’’ in second sentence. nated earlier upon motion of the department or
agency requesting the stay or by action of Con-
§ 807. Right of Government to take over project gress. The Commission shall notify the Congress
works of any stay granted pursuant to this subsection.
(a) Compensation; condemnation by Federal or (June 10, 1920, ch. 285, pt. I, § 14, 41 Stat. 1071; re-
State Government numbered pt. I and amended, Aug. 26, 1935, ch.
Upon not less than two years’ notice in writ- 687, title II, §§ 207, 212, 49 Stat. 844, 847; Pub. L.
ing from the commission the United States shall 90–451, § 2, Aug. 3, 1968, 82 Stat. 617; Pub. L.
have the right upon or after the expiration of 99–495, § 4(b)(2), Oct. 16, 1986, 100 Stat. 1248.)
any license to take over and thereafter to main- AMENDMENTS
tain and operate any project or projects as de-
fined in section 796 of this title, and covered in 1986—Subsec. (b). Pub. L. 99–495 struck out first sen-
whole or in part by the license, or the right to tence which read as follows: ‘‘No earlier than five years
before the expiration of any license, the Commission
take over upon mutual agreement with the li- shall entertain applications for a new license and de-
censee all property owned and held by the li- cide them in a relicensing proceeding pursuant to the
censee then valuable and serviceable in the de- provisions of section 808 of this title.’’
velopment, transmission, or distribution of 1968—Pub. L. 90–451 designated existing provisions as
power and which is then dependent for its use- subsec. (a) and added subsec. (b).
fulness upon the continuance of the license, to- 1935—Act Aug. 26, 1935, § 207, amended section gener-
gether with any lock or locks or other aids to ally.
navigation constructed at the expense of the li- EFFECTIVE DATE OF 1986 AMENDMENT
censee, upon the condition that before taking
possession it shall pay the net investment of the Amendment by Pub. L. 99–495 effective with respect
to each license, permit, or exemption issued under this
licensee in the project or projects taken, not to chapter after Oct. 16, 1986, see section 18 of Pub. L.
exceed the fair value of the property taken, plus 99–495, set out as a note under section 797 of this title.
such reasonable damages, if any, to property of
the licensee valuable, serviceable, and depend- § 808. New licenses and renewals
ent as above set forth but not taken, as may be (a) Relicensing procedures; terms and condi-
caused by the severance therefrom of property tions; issuance to applicant with proposal
taken, and shall assume all contracts entered
best adapted to serve public interest; factors
into by the licensee with the approval of the
considered
Commission. The net investment of the licensee
in the project or projects so taken and the (1) If the United States does not, at the expira-
amount of such severance damages, if any, shall tion of the existing license, exercise its right to
be determined by the Commission after notice take over, maintain, and operate any project or
and opportunity for hearing. Such net invest- projects of the licensee, as provided in section
ment shall not include or be affected by the 807 of this title, the commission is authorized to
value of any lands, rights-of-way, or other prop- issue a new license to the existing licensee upon
erty of the United States licensed by the Com- such terms and conditions as may be authorized
mission under this chapter, by the license or by or required under the then existing laws and reg-
good will, going value, or prospective revenues; ulations, or to issue a new license under said
nor shall the values allowed for water rights, terms and conditions to a new licensee, which li-
rights-of-way, lands, or interest in lands be in cense may cover any project or projects covered
excess of the actual reasonable cost thereof at by the existing license, and shall be issued on
the time of acquisition by the licensee: Provided, the condition that the new licensee shall, before
That the right of the United States or any State taking possession of such project or projects,
or municipality to take over, maintain, and op- pay such amount, and assume such contracts as
erate any project licensed under this chapter at the United States is required to do in the man-
any time by condemnation proceedings upon ner specified in section 807 of this title: Provided,
payment of just compensation is expressly re-
served. 1 So in original. Probably should be ‘‘it’’.

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§ 825g TITLE 16—CONSERVATION Page 1318

lates, or in obtaining information about the sale deposition, at any time after the proceeding is
of electric energy at wholesale in interstate at issue. The Commission may also order testi-
commerce and the transmission of electric en- mony to be taken by deposition in any proceed-
ergy in interstate commerce. The Commission ing or investigation pending before it, at any
may permit any person, electric utility, trans- stage of such proceeding or investigation. Such
mitting utility, or other entity to file with it a depositions may be taken before any person au-
statement in writing under oath or otherwise, as thorized to administer oaths not being of coun-
it shall determine, as to any or all facts and cir- sel or attorney to either of the parties, nor in-
cumstances concerning a matter which may be terested in the proceeding or investigation. Rea-
the subject of investigation. The Commission, in sonable notice must first be given in writing by
its discretion, may publish or make available to the party or his attorney proposing to take such
State commissions information concerning any deposition to the opposite party or his attorney
such subject. of record, as either may be nearest, which notice
(b) Attendance of witnesses and production of shall state the name of the witness and the time
documents and place of the taking of his deposition. Any
person may be compelled to appear and depose,
For the purpose of any investigation or any
and to produce documentary evidence, in the
other proceeding under this chapter, any mem-
same manner as witnesses may be compelled to
ber of the Commission, or any officer designated
appear and testify and produce documentary
by it, is empowered to administer oaths and af-
evidence before the Commission, as hereinbefore
firmations, subpena witnesses, compel their at-
provided. Such testimony shall be reduced to
tendance, take evidence, and require the produc-
writing by the person taking the deposition, or
tion of any books, papers, correspondence,
under his direction, and shall, after it has been
memoranda, contracts, agreements, or other
reduced to writing, be subscribed by the depo-
records which the Commission finds relevant or
nent.
material to the inquiry. Such attendance of wit-
nesses and the production of any such records (e) Deposition of witness in a foreign country
may be required from any place in the United If a witness whose testimony may be desired
States at any designated place of hearing. Wit- to be taken by deposition be in a foreign coun-
nesses summoned by the Commission to appear try, the deposition may be taken before an offi-
before it shall be paid the same fees and mileage cer or person designated by the Commission, or
that are paid witnesses in the courts of the agreed upon by the parties by stipulation in
United States. writing to be filed with the Commission. All
(c) Resort to courts of United States for failure depositions must be promptly filed with the
to obey subpena; punishment Commission.
(f) Deposition fees
In case of contumacy by, or refusal to obey a
subpena issued to, any person, the Commission Witnesses whose depositions are taken as au-
may invoke the aid of any court of the United thorized in this chapter, and the person or offi-
States within the jurisdiction of which such in- cer taking the same, shall be entitled to the
vestigation or proceeding is carried on, or where same fees as are paid for like services in the
such person resides or carries on business, in re- courts of the United States.
quiring the attendance and testimony of wit- (June 10, 1920, ch. 285, pt. III, § 307, as added Aug.
nesses and the production of books, papers, cor- 26, 1935, ch. 687, title II, § 213, 49 Stat. 856; amend-
respondence, memoranda, contracts, agree- ed Pub. L. 91–452, title II, § 221, Oct. 15, 1970, 84
ments, and other records. Such court may issue Stat. 929; Pub. L. 109–58, title XII, § 1284(b), Aug.
an order requiring such person to appear before 8, 2005, 119 Stat. 980.)
the Commission or member or officer designated
AMENDMENTS
by the Commission, there to produce records, if
so ordered, or to give testimony touching the 2005—Subsec. (a). Pub. L. 109–58 inserted ‘‘, electric
matter under investigation or in question; and utility, transmitting utility, or other entity’’ after
‘‘person’’ in two places and inserted ‘‘, or in obtaining
any failure to obey such order of the court may information about the sale of electric energy at whole-
be punished by such court as a contempt there- sale in interstate commerce and the transmission of
of. All process in any such case may be served in electric energy in interstate commerce’’ before period
the judicial district whereof such person is an at end of first sentence.
inhabitant or wherever he may be found or may 1970—Subsec. (g). Pub. L. 91–452 struck out subsec. (g)
be doing business. Any person who willfully which related to the immunity from prosecution of any
shall fail or refuse to attend and testify or to an- individual compelled to testify or produce evidence,
documentary or otherwise, after claiming his privilege
swer any lawful inquiry or to produce books, pa-
against self-incrimination.
pers, correspondence, memoranda, contracts,
agreements, or other records, if in his or its EFFECTIVE DATE OF 1970 AMENDMENT
power so to do, in obedience to the subpena of Amendment by Pub. L. 91–452 effective on 60th day
the Commission, shall be guilty of a mis- following Oct. 15, 1970, and not to affect any immunity
demeanor and, upon conviction, shall be subject to which any individual is entitled under this section
to a fine of not more than $1,000 or to imprison- by reason of any testimony given before 60th day fol-
ment for a term of not more than one year, or lowing Oct. 15, 1970, see section 260 of Pub. L. 91–452, set
out as an Effective Date; Savings Provision note under
both. section 6001 of Title 18, Crimes and Criminal Procedure.
(d) Testimony by deposition
§ 825g. Hearings; rules of procedure
The testimony of any witness may be taken,
at the instance of a party, in any proceeding or (a) Hearings under this chapter may be held
investigation pending before the Commission, by before the Commission, any member or members

A-22
Page 1319 TITLE 16—CONSERVATION § 825j

thereof or any representative of the Commission ing ‘working days’, rather than ‘calendar days’ unless
designated by it, and appropriate records thereof calendar days is specified in such Act for such action.’’
shall be kept. In any proceeding before it, the
§ 825i. Appointment of officers and employees;
Commission, in accordance with such rules and
compensation
regulations as it may prescribe, may admit as a
party any interested State, State commission, The Commission is authorized to appoint and
municipality, or any representative of inter- fix the compensation of such officers, attorneys,
ested consumers or security holders, or any examiners, and experts as may be necessary for
competitor of a party to such proceeding, or any carrying out its functions under this chapter;
other person whose participation in the proceed- and the Commission may, subject to civil-serv-
ing may be in the public interest. ice laws, appoint such other officers and employ-
(b) All hearings, investigations, and proceed- ees as are necessary for carrying out such func-
ings under this chapter shall be governed by tions and fix their salaries in accordance with
rules of practice and procedure to be adopted by chapter 51 and subchapter III of chapter 53 of
the Commission, and in the conduct thereof the title 5.
technical rules of evidence need not be applied.
(June 10, 1920, ch. 285, pt. III, § 310, as added Aug.
No informality in any hearing, investigation, or
26, 1935, ch. 687, title II, § 213, 49 Stat. 859; amend-
proceeding or in the manner of taking testi-
ed Oct. 28, 1949, ch. 782, title XI, § 1106(a), 63 Stat.
mony shall invalidate any order, decision, rule,
972.)
or regulation issued under the authority of this
chapter. CODIFICATION
(June 10, 1920, ch. 285, pt. III, § 308, as added Aug. Provisions that authorized the Commission to ap-
26, 1935, ch. 687, title II, § 213, 49 Stat. 858.) point and fix the compensation of such officers, attor-
neys, examiners, and experts as may be necessary for
§ 825h. Administrative powers of Commission; carrying out its functions under this chapter ‘‘without
rules, regulations, and orders regard to the provisions of other laws applicable to the
employment and compensation of officers and employ-
The Commission shall have power to perform ees of the United States’’ have been omitted as obsolete
any and all acts, and to prescribe, issue, make, and superseded.
amend, and rescind such orders, rules, and regu- Such appointments are subject to the civil service
lations as it may find necessary or appropriate laws unless specifically excepted by those laws or by
laws enacted subsequent to Executive Order No. 8743,
to carry out the provisions of this chapter.
Apr. 23, 1941, issued by the President pursuant to the
Among other things, such rules and regulations Act of Nov. 26, 1940, ch. 919, title I, § 1, 54 Stat. 1211,
may define accounting, technical, and trade which covered most excepted positions into the classi-
terms used in this chapter; and may prescribe fied (competitive) civil service. The Order is set out as
the form or forms of all statements, declara- a note under section 3301 of Title 5, Government Orga-
tions, applications, and reports to be filed with nization and Employees.
the Commission, the information which they As to the compensation of such personnel, sections
shall contain, and the time within which they 1202 and 1204 of the Classification Act of 1949, 63 Stat.
972, 973, repealed the Classification Act of 1923 and all
shall be filed. Unless a different date is specified
other laws or parts of laws inconsistent with the 1949
therein, rules and regulations of the Commis- Act. The Classification Act of 1949 was repealed Pub. L.
sion shall be effective thirty days after publica- 89–554, Sept. 6, 1966, § 8(a), 80 Stat. 632, and reenacted as
tion in the manner which the Commission shall chapter 51 and subchapter III of chapter 53 of Title 5.
prescribe. Orders of the Commission shall be ef- Section 5102 of Title 5 contains the applicability provi-
fective on the date and in the manner which the sions of the 1949 Act, and section 5103 of Title 5 author-
Commission shall prescribe. For the purposes of izes the Office of Personnel Management to determine
its rules and regulations, the Commission may the applicability to specific positions and employees.
‘‘Chapter 51 and subchapter III of chapter 53 of title
classify persons and matters within its jurisdic-
5’’ substituted in text for ‘‘the Classification Act of
tion and prescribe different requirements for dif- 1949, as amended’’ on authority of Pub. L. 89–554, § 7(b),
ferent classes of persons or matters. All rules Sept. 6, 1966, 80 Stat. 631, the first section of which en-
and regulations of the Commission shall be filed acted Title 5.
with its secretary and shall be kept open in con-
venient form for public inspection and examina- AMENDMENTS
tion during reasonable business hours. 1949—Act Oct. 28, 1949, substituted ‘‘Classification Act
of 1949’’ for ‘‘Classification Act of 1923’’.
(June 10, 1920, ch. 285, pt. III, § 309, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 858.) REPEALS
COMMISSION REVIEW Act Oct. 28, 1949, ch. 782, cited as a credit to this sec-
tion, was repealed (subject to a savings clause) by Pub.
Pub. L. 99–495, § 4(c), Oct. 16, 1986, 100 Stat. 1248, pro- L. 89–554, Sept. 6, 1966, § 8, 80 Stat. 632, 655.
vided that: ‘‘In order to ensure that the provisions of
Part I of the Federal Power Act [16 U.S.C. 791a et seq.], § 825j. Investigations relating to electric energy;
as amended by this Act, are fully, fairly, and efficiently reports to Congress
implemented, that other governmental agencies identi-
fied in such Part I are able to carry out their respon- In order to secure information necessary or
sibilities, and that the increased workload of the Fed- appropriate as a basis for recommending legisla-
eral Energy Regulatory Commission and other agencies tion, the Commission is authorized and directed
is facilitated, the Commission shall, consistent with
to conduct investigations regarding the genera-
the provisions of section 309 of the Federal Power Act
[16 U.S.C. 825h], review all provisions of that Act [16 tion, transmission, distribution, and sale of elec-
U.S.C. 791a et seq.] requiring an action within a 30-day tric energy, however produced, throughout the
period and, as the Commission deems appropriate, United States and its possessions, whether or
amend its regulations to interpret such period as mean- not otherwise subject to the jurisdiction of the

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§ 825k TITLE 16—CONSERVATION Page 1320

Commission, including the generation, trans- ed Pub. L. 113–235, div. H, title I, § 1301(b), (d),
mission, distribution, and sale of electric energy Dec. 16, 2014, 128 Stat. 2537.)
by any agency, authority, or instrumentality of
CODIFICATION
the United States, or of any State or municipal-
ity or other political subdivision of a State. It ‘‘Sections 1535 and 1536 of title 31’’ substituted in text
shall, so far as practicable, secure and keep cur- for ‘‘sections 601 and 602 of the Act of June 30, 1932 (47
rent information regarding the ownership, oper- Stat. 417 [31 U.S.C. 686, 686b])’’ on authority of Pub. L.
ation, management, and control of all facilities 97–258, § 4(b), Sept. 13, 1982, 96 Stat. 1067, the first sec-
tion of which enacted Title 31, Money and Finance.
for such generation, transmission, distribution,
and sale; the capacity and output thereof and CHANGE OF NAME
the relationship between the two; the cost of
‘‘Director of the Government Publishing Office’’ sub-
generation, transmission, and distribution; the stituted for ‘‘Public Printer’’ in text on authority of
rates, charges, and contracts in respect of the section 1301(d) of Pub. L. 113–235, set out as a note
sale of electric energy and its service to residen- under section 301 of Title 44, Public Printing and Docu-
tial, rural, commercial, and industrial consum- ments.
ers and other purchasers by private and public ‘‘Government Publishing Office’’ substituted for
agencies; and the relation of any or all such ‘‘Government Printing Office’’ in text on authority of
facts to the development of navigation, indus- section 1301(b) of Pub. L. 113–235, set out as a note pre-
try, commerce, and the national defense. The ceding section 301 of Title 44, Public Printing and Docu-
Commission shall report to Congress the results ments.
of investigations made under authority of this
§ 825l. Review of orders
section.
(June 10, 1920, ch. 285, pt. III, § 311, as added Aug. (a) Application for rehearing; time periods; modi-
26, 1935, ch. 687, title II, § 213, 49 Stat. 859.) fication of order
Any person, electric utility, State, municipal-
§ 825k. Publication and sale of reports ity, or State commission aggrieved by an order
The Commission may provide for the publica- issued by the Commission in a proceeding under
tion of its reports and decisions in such form this chapter to which such person, electric util-
and manner as may be best adapted for public ity, State, municipality, or State commission is
information and use, and is authorized to sell at a party may apply for a rehearing within thirty
reasonable prices copies of all maps, atlases, and days after the issuance of such order. The appli-
reports as it may from time to time publish. cation for rehearing shall set forth specifically
Such reasonable prices may include the cost of the ground or grounds upon which such applica-
compilation, composition, and reproduction. tion is based. Upon such application the Com-
The Commission is also authorized to make such mission shall have power to grant or deny re-
charges as it deems reasonable for special statis- hearing or to abrogate or modify its order with-
tical services and other special or periodic serv- out further hearing. Unless the Commission acts
ices. The amounts collected under this section upon the application for rehearing within thirty
shall be deposited in the Treasury to the credit days after it is filed, such application may be
of miscellaneous receipts. All printing for the deemed to have been denied. No proceeding to
Federal Power Commission making use of en- review any order of the Commission shall be
graving, lithography, and photolithography, to- brought by any entity unless such entity shall
gether with the plates for the same, shall be have made application to the Commission for a
contracted for and performed under the direc- rehearing thereon. Until the record in a proceed-
tion of the Commission, under such limitations ing shall have been filed in a court of appeals, as
and conditions as the Joint Committee on Print- provided in subsection (b), the Commission may
ing may from time to time prescribe, and all at any time, upon reasonable notice and in such
other printing for the Commission shall be done manner as it shall deem proper, modify or set
by the Director of the Government Publishing
aside, in whole or in part, any finding or order
Office under such limitations and conditions as
made or issued by it under the provisions of this
the Joint Committee on Printing may from time
chapter.
to time prescribe. The entire work may be done
at, or ordered through, the Government Publish- (b) Judicial review
ing Office whenever, in the judgment of the Any party to a proceeding under this chapter
Joint Committee on Printing, the same would aggrieved by an order issued by the Commission
be to the interest of the Government: Provided, in such proceeding may obtain a review of such
That when the exigencies of the public service order in the United States court of appeals for
so require, the Joint Committee on Printing any circuit wherein the licensee or public utility
may authorize the Commission to make imme- to which the order relates is located or has its
diate contracts for engraving, lithographing, principal place of business, or in the United
and photolithographing, without advertisement States Court of Appeals for the District of Co-
for proposals: Provided further, That nothing lumbia, by filing in such court, within sixty
contained in this chapter or any other Act shall days after the order of the Commission upon the
prevent the Federal Power Commission from application for rehearing, a written petition
placing orders with other departments or estab- praying that the order of the Commission be
lishments for engraving, lithographing, and modified or set aside in whole or in part. A copy
photolithographing, in accordance with the pro- of such petition shall forthwith be transmitted
visions of sections 1535 and 1536 of title 31, pro- by the clerk of the court to any member of the
viding for interdepartmental work. Commission and thereupon the Commission
(June 10, 1920, ch. 285, pt. III, § 312, as added Aug. shall file with the court the record upon which
26, 1935, ch. 687, title II, § 213, 49 Stat. 859; amend- the order complained of was entered, as provided

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Page 1321 TITLE 16—CONSERVATION § 825m

in section 2112 of title 28. Upon the filing of such ‘‘certify and file with the court a transcript of’’, and in-
petition such court shall have jurisdiction, serted ‘‘as provided in section 2112 of title 28’’, and in
which upon the filing of the record with it shall third sentence, substituted ‘‘jurisdiction, which upon
the filing of the record with it shall be exclusive’’ for
be exclusive, to affirm, modify, or set aside such
‘‘exclusive jurisdiction’’.
order in whole or in part. No objection to the
order of the Commission shall be considered by CHANGE OF NAME
the court unless such objection shall have been Act June 25, 1948, eff. Sept. 1, 1948, as amended by act
urged before the Commission in the application May 24, 1949, substituted ‘‘court of appeals’’ for ‘‘circuit
for rehearing unless there is reasonable ground court of appeals’’.
for failure so to do. The finding of the Commis-
§ 825m. Enforcement provisions
sion as to the facts, if supported by substantial
evidence, shall be conclusive. If any party shall (a) Enjoining and restraining violations
apply to the court for leave to adduce additional Whenever it shall appear to the Commission
evidence, and shall show to the satisfaction of that any person is engaged or about to engage in
the court that such additional evidence is mate- any acts or practices which constitute or will
rial and that there were reasonable grounds for constitute a violation of the provisions of this
failure to adduce such evidence in the proceed- chapter, or of any rule, regulation, or order
ings before the Commission, the court may thereunder, it may in its discretion bring an ac-
order such additional evidence to be taken be- tion in the proper District Court of the United
fore the Commission and to be adduced upon the States or the United States courts of any Terri-
hearing in such manner and upon such terms tory or other place subject to the jurisdiction of
and conditions as to the court may seem proper. the United States, to enjoin such acts or prac-
The Commission may modify its findings as to tices and to enforce compliance with this chap-
the facts by reason of the additional evidence so ter or any rule, regulation, or order thereunder,
taken, and it shall file with the court such and upon a proper showing a permanent or tem-
modified or new findings which, if supported by porary injunction or decree or restraining order
substantial evidence, shall be conclusive, and its shall be granted without bond. The Commission
recommendation, if any, for the modification or may transmit such evidence as may be available
setting aside of the original order. The judgment concerning such acts or practices to the Attor-
and decree of the court, affirming, modifying, or ney General, who, in his discretion, may insti-
setting aside, in whole or in part, any such order tute the necessary criminal proceedings under
of the Commission, shall be final, subject to re- this chapter.
view by the Supreme Court of the United States (b) Writs of mandamus
upon certiorari or certification as provided in
section 1254 of title 28. Upon application of the Commission the dis-
trict courts of the United States and the United
(c) Stay of Commission’s order
States courts of any Territory or other place
The filing of an application for rehearing subject to the jurisdiction of the United States
under subsection (a) shall not, unless specifi- shall have jurisdiction to issue writs of manda-
cally ordered by the Commission, operate as a mus commanding any person to comply with the
stay of the Commission’s order. The commence- provisions of this chapter or any rule, regula-
ment of proceedings under subsection (b) of this tion, or order of the Commission thereunder.
section shall not, unless specifically ordered by (c) Employment of attorneys
the court, operate as a stay of the Commission’s
order. The Commission may employ such attorneys
as it finds necessary for proper legal aid and
(June 10, 1920, ch. 285, pt. III, § 313, as added Aug. service of the Commission or its members in the
26, 1935, ch. 687, title II, § 213, 49 Stat. 860; amend- conduct of their work, or for proper representa-
ed June 25, 1948, ch. 646, § 32(a), 62 Stat. 991; May tion of the public interests in investigations
24, 1949, ch. 139, § 127, 63 Stat. 107; Pub. L. 85–791, made by it or cases or proceedings pending be-
§ 16, Aug. 28, 1958, 72 Stat. 947; Pub. L. 109–58, fore it, whether at the Commission’s own in-
title XII, § 1284(c), Aug. 8, 2005, 119 Stat. 980.) stance or upon complaint, or to appear for or
CODIFICATION represent the Commission in any case in court;
and the expenses of such employment shall be
In subsec. (b), ‘‘section 1254 of title 28’’ substituted
for ‘‘sections 239 and 240 of the Judicial Code, as amend- paid out of the appropriation for the Commis-
ed (U.S.C., title 28, secs. 346 and 347)’’ on authority of sion.
act June 25, 1948, ch. 646, 62 Stat. 869, the first section (d) Prohibitions on violators
of which enacted Title 28, Judiciary and Judicial Proce-
In any proceedings under subsection (a), the
dure.
court may prohibit, conditionally or uncondi-
AMENDMENTS tionally, and permanently or for such period of
2005—Subsec. (a). Pub. L. 109–58 inserted ‘‘electric time as the court determines, any individual
utility,’’ after ‘‘Any person,’’ and ‘‘to which such per- who is engaged or has engaged in practices con-
son,’’ and substituted ‘‘brought by any entity unless stituting a violation of section 824u of this title
such entity’’ for ‘‘brought by any person unless such (and related rules and regulations) from—
person’’. (1) acting as an officer or director of an elec-
1958—Subsec. (a). Pub. L. 85–791, § 16(a), inserted sen- tric utility; or
tence to provide that Commission may modify or set
aside findings or orders until record has been filed in
(2) engaging in the business of purchasing or
court of appeals. selling—
Subsec. (b). Pub. L. 85–791, § 16(b), in second sentence, (A) electric energy; or
substituted ‘‘transmitted by the clerk of the court to’’ (B) transmission services subject to the ju-
for ‘‘served upon’’, substituted ‘‘file with the court’’ for risdiction of the Commission.

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 Federal Energy Regulatory Commission § 4.35
(vi) During the pre-filing process the ance is available and could expedite
Commission may require the filing of the proceeding.
preliminary fish and wildlife rec- (9) If this section requires an appli-
ommendations, prescriptions, manda- cant to reveal Critical Energy Infra-
tory conditions, and comments, to be structure Information (CEII), as de-
submitted in final form after the filing fined by § 388.113(c) of this chapter, to
of the application; no notice that the any person, the applicant shall follow
application is ready for environmental the procedures set out in § 4.32(k).
analysis need be given by the Commis- [Order 533, 56 FR 23148, May 20, 1991, as
sion after the filing of an application amended at 56 FR 61155, Dec. 2, 1991; Order
pursuant to these procedures. 540, 57 FR 21737, May 22, 1992; Order 596, 62 FR
(vii) Any potential applicant, re- 59810, Nov. 5, 1997; Order 2002, 68 FR 51116,
source agency, Indian tribe, citizens’ Aug. 25, 2003; Order 643, 68 FR 52094, Sept. 2,
group, or other entity participating in 2003; 68 FR 61742, Oct. 30, 2003; Order 756, 77
FR 4893, Feb. 1, 2012; Order 800, 79 FR 59110,
the alternative pre-filing consultation
Oct. 1, 2014]
process may file a request with the
Commission to resolve a dispute con- § 4.35 Amendment of application; date
cerning the alternative process (includ- of acceptance.
ing a dispute over required studies), (a) General rule. Except as provided in
but only after reasonable efforts have paragraph (d) of this section, if an ap-
been made to resolve the dispute with plicant amends its filed application as
other participants in the process. No described in paragraph (b) of this sec-
such request shall be accepted for fil- tion, the date of acceptance of the ap-
ing unless the entity submitting it cer- plication under § 4.32(f) is the date on
tifies that it has been served on all which the amendment to the applica-
other participants. The request must tion was filed.
document what efforts have been made (b) Paragraph (a) of this section ap-
to resolve the dispute. plies if an applicant:
(7) If the potential applicant or any (1) Amends its filed license or pre-
resource agency, Indian tribe, citizens’ liminary permit application in order to
group, or other entity participating in change the status or identity of the ap-
the alternative pre-filing consultation plicant or to materially amend the pro-
process can show that it has cooper- posed plans of development; or
ated in the process but a consensus (2) Amends its filed application for
supporting the use of the process no exemption from licensing in order to
longer exists and that continued use of materially amend the proposed plans of
the alternative process will not be pro- development, or
ductive, the participant may petition (3) Amends its filed application in
the Commission for an order directing order to change its statement of intent
the use by the potential applicant of of whether or not it will seek benefits
appropriate procedures to complete its under section 210 of PURPA, as origi-
application. No such request shall be nally filed under § 4.32(c)(1).
accepted for filing unless the entity (c) An application amended under
submitting it certifies that it has been paragraph (a) is a new filing for:
served on all other participants. The (1) The purpose of determining its
request must recommend specific pro- timeliness under § 4.36 of this part;
cedures that are appropriate under the (2) Disposing of competing applica-
circumstances. tions under § 4.37; and
(8) The Commission may participate (3) Reissuing public notice of the ap-
in the pre-filing consultation process plication under § 4.32(d)(2).
and assist in the integration of this (d) If an application is amended
process and the environmental review under paragraph (a) of this section, the
process in any case, including appro- Commission will rescind any accept-
priate cases where the applicant, con- ance letter already issued for the appli-
tractor, or consultant funded by the cation.
applicant is not preparing a prelimi- (e) Exceptions. This section does not
nary draft environmental assessment apply to:
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or preliminary draft environmental im- (1) Any corrections of deficiencies

pact statement, but where staff assist- made pursuant to § 4.32(e)(1);

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 § 4.36 18 CFR Ch. I (4–1–19 Edition)
(2) Any amendments made pursuant posed impoundment and the point of
to § 4.37(b)(4) by a State or a munici- discharge from the powerhouse; or
pality to its proposed plans of develop- (B) Cause adverse environmental im-
ment to make them as well adapted as pacts not previously discussed in the
the proposed plans of an applicant that original application; or
is not a state or a municipality; (iii) A change in the number of dis-
(3) Any amendments made pursuant crete units of development to be in-
to § 4.37(c)(2) by a priority applicant to cluded within the project boundary.
its proposed plans of development to (2) For purposes of this section, a ma-
make them as well adapted as the pro- terial amendment to plans of develop-
posed plans of an applicant that is not ment proposed in an application for a
a priority applicant; preliminary permit means a material
(4) Any amendments made by a li- change in the location of the power-
cense or an exemption applicant to its house or the size and elevation of the
proposed plans of development to sat- reservoir if the change would enlarge,
isfy requests of resource agencies or In- reduce, or relocate the area of the body
dian tribes submitted after an appli- of water that would lie between the
cant has consulted under § 4.38 or con- farthest reach of the proposed im-
cerns of the Commission; and poundment and the point of discharge
(5)(i) Any license or exemption appli- from the powerhouse.
cant with a project located at a new
(3) For purposes of this section, a
dam or diversion who is seeking
change in the status of an applicant
PURPA benefits and who:
means:
(A) Has filed an adverse environ-
mental effects (AEE) petition pursuant (i) The acquisition or loss of pref-
to § 292.211 of this chapter; and erence as a state or a municipality
(B) Has proposed measures to miti- under section 7(a) of the Federal Power
gate the adverse environmental effects Act; or
which the Commission, in its initial de- (ii) The loss of priority as a per-
termination on the AEE petition, stat- mittee under section 5 of the Federal
ed the project will have. Power Act.
(ii) This exception does not protect (4) For purposes of this section, a
any proposed mitigative measures that change in the identity of an applicant
the Commission finds are a pretext to means a change that either singly, or
avoid the consequences of materially together with previous amendments,
amending the application or are out- causes a total substitution of all the
side the scope of mitigating the ad- original applicants in a permit or a li-
verse environmental effects. cense application.
(f) Definitions. (1) For the purposes of [Order 413, 50 FR 11680, Mar. 25, 1985, as
this section, a material amendment to amended by Order 499, 53 FR 27002, July 18,
plans of development proposed in an 1988; Order 533, 56 FR 23149, May 20, 1991;
application for a license or exemption Order 2002, 68 FR 51115, Aug. 25, 2003; Order
from licensing means any fundamental 756, 77 FR 4893, Feb. 1, 2012]
and significant change, including but
not limited to: § 4.36 Competing applications: dead-
(i) A change in the installed capacity, lines for filing; notices of intent;
or the number or location of any gener- comparisons of plans of develop-
ment.
ating units of the proposed project if
the change would significantly modify The public notice of an initial pre-
the flow regime associated with the liminary permit application or an ini-
project; tial development application shall pre-
(ii) A material change in the loca- scribe the deadline for filing protests
tion, size, or composition of the dam, and motions to intervene in that pro-
the location of the powerhouse, or the ceeding (the prescribed intervention
size and elevation of the reservoir if deadline).
the change would: (a) Deadlines for filing applications in
(A) Enlarge, reduce, or relocate the competition with an initial preliminary
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area of the body of water that would lie permit application. (1) Any preliminary
between the farthest reach of the pro- permit application or any development

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 § 4.108 18 CFR Ch. I (4–1–19 Edition)
the capacity and mode of operation of (c) Extend the time fixed in the li-
the project if it is already generating cense for commencement or comple-
electric power, and an explanation of tion of project works.
the specific measures proposed by the [Order 184, 46 FR 55943, Nov. 13, 1981, as
applicant, the agencies consulted, and amended by Order 2002, 68 FR 51121, Aug. 25,
others to protect and enhance environ- 2003]
mental resources and values and to
mitigate adverse impacts of the project § 4.201 Contents of application.
on such resources. An application for amendment of a
(3) Any additional information the license for a water power project must
applicant considers important. contain the following information in
(f) Exhibit F. Exhibit F is a set of the form specified.
drawings showing the structures and (a) Initial statement.
equipment of the small hydroelectric BEFORE THE FEDERAL ENERGY REGULATORY
facility and must conform to the speci- COMMISSION
fications of § 4.41(g) of this chapter.
Application for Amendment of License
[Order 106, 45 FR 76123, Nov. 18, 1980, as
(1) [Name of applicant] applies to the Fed-
amended by Order 225, 47 FR 19056, May 3,
eral Energy Regulatory Commission for an
1982; Order 413, 50 FR 11689, Mar. 25, 1985;
amendment of license for the [name of
Order 494, 53 FR 15381, Apr. 29, 1988; Order 533,
project] water power project.
56 FR 23154, May 20, 1991; Order 2002, 68 FR
(2) The exact name, business address, and
51121, Aug. 25, 2003; Order 699, 72 FR 45324, telephone number of the applicant are:
Aug. 14, 2007; Order 800, 79 FR 59111, Oct. 1, llllllllllllllllllllllll
2014] llllllllllllllllllllllll
llllllllllllllllllllllll
§ 4.108 Contents of application for ex- (3) The applicant is a [citizen of the United
emption from provisions other than States, association of citizens of the United
licensing. States, domestic corporation, municipality,
An application for exemption of a or state, as appropriate, see 16 U.S.C. 796], li-
censee for the water power project, des-
small hydroelectric power project from ignated as Project No. lll in the records
provisions of Part I of the Act other of the Federal Energy Regulatory Commis-
than the licensing requirement need sion, issued on the llllll day of
not be prepared according to any spe- lllllll, 19ll.
cific format, but must be included as (4) The amendments of license proposed
an identified appendix to the related and the reason(s) why the proposed changes
application for license or amendment are necessary, are: [Give a statement or de-
scription]
of license. The application for exemp- (5)(i) The statutory or regulatory require-
tion must list all sections or sub- ments of the state(s) in which the project
sections of Part I of the Act for which would be located that affect the project as
exemption is requested. proposed with respect to bed and banks and
to the appropriation, diversion, and use of
[Order 106, 45 FR 76123, Nov. 18, 1980] water for power purposes are: [provide cita-
tion and brief identification of the nature of
Subpart L—Application for each requirement.]
(ii) The steps which the applicant has
Amendment of License taken or plans to take to comply with each
of the laws cited above are: [provide brief de-
§ 4.200 Applicability. scription for each law.]
This part applies to any application (b) Required exhibits for capacity re-
for amendment of a license, if the ap- lated amendments. Any application to
plicant seeks to: amend a license for a hydropower
(a) Make a change in the physical project that involves additional capac-
features of the project or its boundary, ity not previously authorized, and that
or make an addition, betterment, aban- would increase the actual or proposed
donment, or conversion, of such char- total installed capacity of the project,
acter as to constitute an alteration of would result in an increase in the max-
the license; imum hydraulic capacity of the project
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(b) Make a change in the plans for of 15 percent or more, and would result
the project under license; or in an increase in the installed name-

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 Federal Energy Regulatory Commission § 4.300
plate capacity of 2 megawatts or more, such exhibit may be submitted to the
must contain the following exhibits, or Commission under § 385.207 of this chap-
revisions or additions to any exhibits ter, after consultation with the Com-
on file, commensurate with the scope mission’s Division of Hydropower Com-
of the licensed project: pliance and Administration.
(1) For amendment of a license for a (2) A licensee wishing to file an appli-
water power project that, at the time cation for amendment of license under
the application is filed, is not con- this section may seek advice from the
structed and is proposed to have a total Commission staff regarding which ex-
installed generating capacity of more hibits(s) must be submitted and wheth-
than 5 MW—Exhibits A, B, C, D, E, F, er the proposed amendment is con-
and G under § 4.41 of this chapter; sistent with the scope of the existing
(2) For amendment of a license for a licensed project.
water power project that, at the time
[Order 184, 46 FR 55943, Nov. 13, 1981, as
the application is filed, is not con- amended by Order 225, 47 FR 19056, May 3,
structed and is proposed to have a total 1982; 48 FR 4459, Feb. 1, 1983; 48 FR 16653, Apr.
installed generating capacity of 1.5 MW 19, 1983; Order 413, 50 FR 11689, Mar. 25, 1985;
or less—Exhibits E, F, and G under Order 533, 56 FR 23154, May 20, 1991; Order 756,
§ 4.61 of this chapter; 77 FR 4894, Feb. 1, 2012]
(3) For amendment of a license for a
water power project that, at the time § 4.202 Alteration and extension of li-
the application is filed, is not con- cense.
structed and is proposed to have a total (a) If it is determined that approval
installed generating capacity of 5 MW of the application for amendment of li-
or less, but more than 1.5 MW—Exhib- cense would constitute a significant al-
its F and G under § 4.61 of this chapter, teration of license pursuant to section
and Exhibit E under § 4.41 of this chap- 6 of the Act, 16 U.S.C. 799, public notice
ter; of such application shall be given at
(4) For amendment of a license for a least 30 days prior to action upon the
water power project that, at the time application.
the application for amendment is filed, (b) Any application for extension of
has been constructed, and is proposed time fixed in the license for commence-
to have a total installed generating ca- ment or completion of construction of
pacity of 5 MW or less—Exhibit E, F project works must be filed with the
and G under § 4.61 of this chapter; Commission not less than three
(5) For amendment of a license for a months prior to the date or dates so
water power project that, at the time fixed.
the application is filed, has been con-
[Order 184, 46 FR 55943, Nov. 13, 1981]
structed and is proposed to have a total
installed generating capacity of more
than 5 MW—Exhibits A, B, C, D, E, F, Subpart M—Fees Under Section
and G under § 4.51 of this chapter. 30(e) of the Act
(c) Required exhibits for non-capacity
related amendments. Any application to SOURCE: Order 487, 52 FR 48404, Dec. 22,
amend a license for a water power 1987, unless otherwise noted.
project that would not be a capacity
related amendment as described in § 4.300 Purpose, definitions, and appli-
paragraph (b) of this section must con- cability.
tain those exhibits that require revi- (a) Purpose. This subpart implements
sion in light of the nature of the pro- the amendments of section 30 of the
posed amendments. Federal Power Act enacted by section
(d) Consultation and waiver. (1) If an 7(c) of the Electric Consumers Protec-
applicant for license amendment under tion Act of 1986 (ECPA). It establishes
this subpart believes that any exhibit procedures for reimbursing fish and
required under paragraph (b) of this wildlife agencies for costs incurred in
section is inappropriate with respect to connection with applications for an ex-
the particular amendment of license emption from licensing and applica-
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sought by the applicant, a petition for tions for licenses seeking benefits
waiver of the requirement to submit under section 210 of the Public Utility

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 § 6.3 18 CFR Ch. I (4–1–19 Edition)
restoration has been satisfactorily CROSS REFERENCE: For annual charges, see
completed. part 11 of this chapter.

[Order 175, 19 FR 5217, Aug. 18, 1954]

PART 8—RECREATIONAL OPPORTU-
§ 6.3 Termination of license. NITIES AND DEVELOPMENT AT LI-
Licenses may be terminated by writ- CENSED PROJECTS
ten order of the Commission not less
than 90 days after notice thereof shall Sec.
have been mailed to the licensee by 8.1 Publication of license conditions relat-
ing to recreation.
certified mail to the last address
8.2 Posting of project lands as to rec-
whereof the Commission has been noti-
reational use and availability of informa-
fied by the licensee, if there is failure tion.
to commence actual construction of 8.3 Discrimination prohibited.
the project works within the time pre-
scribed in the license, or as extended AUTHORITY: 5 U.S.C. 551–557; 16 U.S.C. 791a–
by the Commission. Upon like notice, 825r; 42 U.S.C. 7101–7352.
the authority granted under a license
§ 8.1 Publication of license conditions
with respect to any separable part of relating to recreation.
the project works may be terminated if
there is failure to begin construction of Following the issuance or amend-
such separable part within the time ment of a license, the licensee shall
prescribed or as extended by the Com- make reasonable efforts to keep the
mission. public informed of the availability of
project lands and waters for rec-
(Administrative Procedure Act, 5 U.S.C. 551– reational purposes, and of the license
557 (1976); Federal Power Act, as amended, 16
conditions of interest to persons who
U.S.C. 291–628 (1976 & Supp. V 1981), Dept. of
Energy Organization Act 42 U.S.C. 7101–7352 may be interested in the recreational
(Supp. V 1981); E.O. 12009, 3 CFR 142 (1978)) aspects of the project or who may wish
to acquire lands in its vicinity. Such
[Order 141, 12 FR 8491, Dec. 19, 1947, as efforts shall include, but are not lim-
amended by Order 344, 48 FR 49010, Oct. 24,
1983]
ited to: the publication of notice in a
local newspaper once each week for 4
§ 6.4 Termination by implied sur- weeks, and publication on any project
render. website, of the project’s license condi-
tions which relate to public access to
If any licensee holding a license sub-
and the use of the project waters and
ject to the provisions of section 10(i) of
lands for recreational purposes, rec-
the Act shall cause or suffer essential
reational plans, installation of recre-
project property to be removed or de-
ation and fish and wildlife facilities,
stroyed, or become unfit for use, with-
reservoir water surface elevations,
out replacement, or shall abandon, or
minimum water releases or rates of
shall discontinue good faith operation
change of water releases, and such
of the project for a period of three
other conditions of general public in-
years, the Commission will deem it to
terest as the Commission may des-
be the intent of the licensee to sur-
ignate in the order issuing or amending
render the license; and not less than 90
the license.
days after public notice may in its dis-
cretion terminate the license. [Order 852, 83 FR 67068, Dec. 28, 2018]
[Order 141, 12 FR 8491, Dec. 19, 1947]
§ 8.2 Posting of project lands as to rec-
reational use and availability of in-
§ 6.5 Annual charges. formation.
Annual charges arising under a li-
(a) Following the issuance or amend-
cense surrendered or terminated shall
ment of a license, the licensee shall
continue until the effective date set
post and maintain at all points of pub-
forth in the Commission’s order with
lic access required by the license (or at
respect to such surrender or termi-
such access points as are specifically
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nation.
designated for this purpose by the li-
[Order 175, 19 FR 5217, Aug. 18, 1954] censee) and at such other points as are

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 § 16.9 18 CFR Ch. I (4–1–19 Edition)
(2)(i) A potential applicant must the provisions of § 16.9(d)(1) if an
make available to the public for in- amendment described in § 4.35(f) of this
spection and reproduction the informa- chapter is filed.
tion specified in paragraph (b)(1) of this (4) If the Commission rejects or dis-
section from the date on which the no- misses an application pursuant to the
tice required by paragraph (i)(1) of this provisions of § 4.32 of this chapter, the
section is first published until a final application may not be refiled after the
order is issued on the license applica- new license application filing deadline
tion. specified in § 16.9(b)(1).
(ii) The provisions of § 16.7(e) shall (c) Final amendments. All amend-
govern the form and manner in which ments to an application, including the
the information is to be made available final amendment, must be filed with
for public inspection and reproduction. the Commission and served on all com-
(iii) A potential applicant must make peting applicants no later than the
available to the public for inspection date specified in the notice issued
at the joint meeting required by para- under paragraph (d)(2).
graph (b)(3) of this section the informa- (d) Commission notice. (1) Upon accept-
tion specified in paragraph (b)(2) of this ance of an application for a new license
section. or a nonpower license, the Commission
(j) Critical Energy Infrastructure Infor- will give notice of the application and
mation. If this section requires an ap- of the dates for comment, intervention,
plicant to reveal Critical Energy Infra- and protests by:
structure Information (CEII), as de- (i) Publishing notice in the FEDERAL
fined by § 388.113(c) of this chapter, to REGISTER;
any person, the applicant shall follow (ii) Publishing notice once every
the procedures set out in § 16.7(d)(7). week for four weeks in a daily or week-
[Order 513, 54 FR 23806, June 2, 1989, as ly newspaper published in the county
amended by Order 513–A, 55 FR 16, Jan. 2, or counties in which the project or any
1990; Order 533, 56 FR 23154, May 20, 1991; 56 part thereof or the lands affected
FR 61156, Dec. 2, 1991; Order 2002, 68 FR 51140, thereby are situated; and
Aug. 25, 2003; Order 643, 68 FR 52095, Sept. 2, (iii) Notifying appropriate Federal,
2003; 68 FR 61743, Oct. 30, 2003; Order 769, 77
FR 65475, Oct. 29, 2012] state, and interstate resource agencies,
Indian tribes, and non-governmental
§ 16.9 Applications for new licenses organizations, by electronic means if
and nonpower licenses for projects practical, otherwise by mail.
subject to sections 14 and 15 of the (2) Within 60 days after the new li-
Federal Power Act. cense application filing deadline, the
(a) Applicability. This section applies Commission will issue a notice on the
to an applicant for a new license or processing deadlines established under
nonpower license for a project subject § 4.32 of this chapter, estimated dates
to sections 14 and 15 of the Federal for further processing deadlines under
Power Act. § 4.32 of this chapter, deadlines for com-
(b) Filing requirement. (1) An applicant plying with the provisions of § 4.36(d)(2)
for a license under this section must (ii) and (iii) of this chapter in cases
file its application at least 24 months where competing applications are filed,
before the existing license expires. and the date for final amendments and
(2) An application for a license under will:
this section must meet the require- (i) Publish the notice in the FEDERAL
ments of § 4.32 (except that the Director REGISTER;
of the Office of Energy Projects may (ii) Provide the notice to appropriate
provide more than 90 days in which to Federal, state, and interstate resource
correct deficiencies in applications) agencies and Indian tribes, by elec-
and, as appropriate, §§ 4.41, 4.51, or 4.61 tronic means if practical, otherwise by
of this chapter. mail; and
(3) The requirements of § 4.35 of this (iii) Serve the notice on all parties to
chapter do not apply to an application the proceedings pursuant to § 385.2010 of
under this section, except that the this chapter.
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Commission will reissue a public notice (3) Where two or more mutually ex-
of the application in accordance with clusive competing applications have

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 Federal Energy Regulatory Commission § 16.10
been filed for the same project, the (A) The applicant’s customers, in-
final amendment date and deadlines for cluding wholesale customers;
complying with the provisions of (B) The applicant’s operating and
§ 4.36(d)(2) (ii) and (iii) of this chapter load characteristics; and
established pursuant to the notice (C) The communities served or to be
issued under paragraph (d)(2) of this served, including any reallocation of
section will be the same for all such ap- costs associated with the transfer of a
plications. license from the existing licensee.
(4) The provisions of § 4.36(d)(2)(i) of (3) The following data showing need
this chapter will not be applicable to and the reasonable cost and avail-
applications filed pursuant to this sec- ability of alternative sources of power:
tion. (i) The average annual cost of the
[Order 513, 54 FR 23806, June 2, 1989, as power produced by the project, includ-
amended by Order 2002, 68 FR 51142, Aug. 25, ing the basis for that calculation;
2003; Order 653, 70 FR 8724, Feb. 23, 2005] (ii) The projected resources required
by the applicant to meet the appli-
§ 16.10 Information to be provided by cant’s capacity and energy require-
an applicant for new license: Filing ments over the short and long term in-
requirements. cluding:
(a) Information to be supplied by all ap- (A) Energy and capacity resources,
plicants. All applicants for a new li- including the contributions from the
cense under this part must file the fol- applicant’s generation, purchases, and
lowing information with the Commis- load modification measures (such as
sion: conservation, if considered as a re-
(1) A discussion of the plans and abil- source), as separate components of the
ity of the applicant to operate and total resources required;
maintain the project in a manner most (B) A resource analysis, including a
likely to provide efficient and reliable statement of system reserve margins
electric service, including efforts and to be maintained for energy and capac-
plans to: ity; and
(i) Increase capacity or generation at (C) If load management measures are
the project; not viewed as resources, the effects of
(ii) Coordinate the operation of the such measures on the projected capac-
project with any upstream or down- ity and energy requirements indicated
stream water resource projects; and separately;
(iii) Coordinate the operation of the (iii) For alternative sources of power,
project with the applicant’s or other including generation of additional
electrical systems to minimize the cost power at existing facilities, restarting
of production. deactivated units, the purchase of
(2) A discussion of the need of the ap- power off-system, the construction or
plicant over the short and long term purchase and operation of a new power
for the electricity generated by the plant, and load management measures
project, including: such as conservation:
(i) The reasonable costs and reason- (A) The total annual cost of each al-
able availability of alternative sources ternative source of power to replace
of power that would be needed by the project power;
applicant or its customers, including (B) The basis for the determination
wholesale customers, if the applicant is of projected annual cost; and
not granted a license for the project; (C) A discussion of the relative mer-
(ii) A discussion of the increase in its of each alternative, including the
fuel, capital, and any other costs that issues of the period of availability and
would be incurred by the applicant or dependability of purchased power, av-
its customers to purchase or generate erage life of alternatives, relative
power necessary to replace the output equivalent availability of generating
of the licensed project, if the applicant alternatives, and relative impacts on
is not granted a license for the project; the applicant’s power system reli-
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(iii) The effect of each alternative ability and other system operating
source of power on: characteristics; and

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 § 385.210 18 CFR Ch. I (4–1–19 Edition)
(c) Answers. A person who is ordered (2) By a participant or a person who
to show cause must answer in accord- has filed a timely motion to intervene
ance with Rule 213. which has not been denied;
(3) In any proceeding except an infor-
§ 385.210 Method of notice; dates es- mal rulemaking proceeding.
tablished in notice (Rule 210). (b) Written and oral motions. Any mo-
(a) Method. When the Secretary gives tion must be filed in writing, except
notice of tariff or rate filings, applica- that the presiding officer may permit
tions, petitions, notices of tariff or rate an oral motion to be made on the
examinations, and orders to show record during a hearing or conference.
cause, the Secretary will give such no- (c) Contents. A motion must contain a
tice in accordance with Rule 2009. clear and concise statement of:
(b) Dates for filing interventions and (1) The facts and law which support
protests. A notice given under this sec- the motion; and
tion will establish the dates for filing (2) The specific relief or ruling re-
interventions and protests. Only those quested.
filings made within the time prescribed [Order 225, 47 FR 19022, May 3, 1982, as
in the notice will be considered timely. amended by Order 225–A, 47 FR 35956, Aug. 18,
1982; Order 376, 49 FR 21705, May 23, 1984]
§ 385.211 Protests other than under
Rule 208 (Rule 211). § 385.213 Answers (Rule 213).
(a) General rule. (1) Any person may (a) Required or permitted. (1) Any re-
file a protest to object to any applica- spondent to a complaint or order to
tion, complaint, petition, order to show show cause must make an answer, un-
cause, notice of tariff or rate examina- less the Commission orders otherwise.
tion, or tariff or rate filing. (2) An answer may not be made to a
(2) The filing of a protest does not protest, an answer, a motion for oral
make the protestant a party to the argument, or a request for rehearing,
proceeding. The protestant must inter- unless otherwise ordered by the
vene under Rule 214 to become a party. decisional authority. A presiding offi-
(3) Subject to paragraph (a)(4) of this cer may prohibit an answer to a mo-
section, the Commission will consider tion for interlocutory appeal. If an an-
protests in determining further appro- swer is not otherwise permitted under
priate action. Protests will be placed in this paragraph, no responsive pleading
the public file associated with the pro- may be made.
ceeding. (3) An answer may be made to any
(4) If a proceeding is set for hearing pleading, if not prohibited under para-
under subpart E of this part, the pro- graph (a)(2) of this section.
test is not part of the record upon (4) An answer to a notice of tariff or
which the decision is made. rate examination must be made in ac-
(b) Service. (1) Any protest directed cordance with the provisions of such
against a person in a proceeding must notice.
be served by the protestant on the per- (b) Written or oral answers. Any an-
son against whom the protest is di- swer must be in writing, except that
rected. the presiding officer may permit an
(2) The Secretary may waive any pro- oral answer to a motion made on the
cedural requirement of this subpart ap- record during a hearing conducted
plicable to protests. If the requirement under subpart E or during a conference.
of service under this paragraph is (c) Contents. (1) An answer must con-
waived, the Secretary will place the tain a clear and concise statement of:
protest in the public file and may send (i) Any disputed factual allegations;
a copy thereof to any person against and
whom the protest is directed. (ii) Any law upon which the answer
relies.
§ 385.212 Motions (Rule 212). (2) When an answer is made in re-
(a) General rule. A motion may be sponse to a complaint, an order to
filed: show cause, or an amendment to such
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(1) At any time, unless otherwise pro- pleading, the answerer must, to the ex-
vided; tent practicable:

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 Federal Energy Regulatory Commission § 385.214
(i) Admit or deny, specifically and in FEDERAL REGISTER, not later than 30
detail, each material allegation of the days after the filing of the pleading or
pleading answered; and amendment, unless otherwise ordered.
(ii) Set forth every defense relied on. (e) Failure to answer. (1) Any person
(3) General denials of facts referred failing to answer a complaint may be
to in any order to show cause, unsup- considered in default, and all relevant
ported by the specific facts upon which facts stated in such complaint may be
the respondent relies, do not comply deemed admitted.
with paragraph (a)(1) of this section (2) Failure to answer an order to
and may be a basis for summary dis- show cause will be treated as a general
position under Rule 217, unless other- denial to which paragraph (c)(3) of this
wise required by statute. section applies.
(4) An answer to a complaint must [Order 225, 47 FR 19022, May 3, 1982; 48 FR 786,
include documents that support the Jan. 7, 1983, as amended by Order 376, 49 FR
facts in the answer in possession of, or 21705, May 23, 1984; Order 602, 64 FR 17099,
otherwise attainable by, the respond- Apr. 8, 1999; Order 602–A, 64 FR 43608, Aug. 11,
ent, including, but not limited to, con- 1999; Order 769, 77 FR 65476, Oct. 29, 2012]
tracts and affidavits. An answer is also
required to describe the formal or con- § 385.214 Intervention (Rule 214).
sensual process it proposes for resolv- (a) Filing. (1) The Secretary of Energy
ing the complaint. is a party to any proceeding upon filing
(5) When submitting with its answer a notice of intervention in that pro-
any request for privileged treatment of ceeding. If the Secretary’s notice is not
documents and information in accord- filed within the period prescribed under
ance with this chapter, a respondent Rule 210(b), the notice must state the
must provide a public version of its an- position of the Secretary on the issues
swer without the information for which in the proceeding.
privileged treatment is claimed and its (2) Any State Commission, the Advi-
proposed form of protective agreement sory Council on Historic Preservation,
to each entity that has either been the U.S. Departments of Agriculture,
served pursuant to § 385.206(c) or whose Commerce, and the Interior, any state
name is on the official service list for fish and wildlife, water quality certifi-
the proceeding compiled by the Sec- cation, or water rights agency; or In-
retary. dian tribe with authority to issue a
(d) Time limitations. (1) Any answer to water quality certification is a party
a motion or to an amendment to a mo- to any proceeding upon filing a notice
tion must be made within 15 days after of intervention in that proceeding, if
the motion or amendment is filed, ex- the notice is filed within the period es-
cept as described below or unless other- tablished under Rule 210(b). If the pe-
wise ordered. riod for filing notice has expired, each
(i) If a motion requests an extension entity identified in this paragraph
of time or a shortened time period for must comply with the rules for mo-
action, then answers to the motion to tions to intervene applicable to any
extend or shorten the time period shall person under paragraph (a)(3) of this
be made within 5 days after the motion section including the content require-
is filed, unless otherwise ordered. ments of paragraph (b) of this section.
(ii) [Reserved] (3) Any person seeking to intervene
(2) Any answer to a pleading or to become a party, other than the enti-
amendment to a pleading, other than a ties specified in paragraphs (a)(1) and
complaint or an answer to a motion (a)(2) of this section, must file a mo-
under paragraph (d)(1) of this section, tion to intervene.
must be made: (4) No person, including entities list-
(i) If notice of the pleading or amend- ed in paragraphs (a)(1) and (a)(2) of this
ment is published in the FEDERAL REG- section, may intervene as a matter of
ISTER, not later than 30 days after such right in a proceeding arising from an
publication, unless otherwise ordered; investigation pursuant to Part 1b of
or this chapter.
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(ii) If notice of the pleading or (b) Contents of motion. (1) Any motion
amendment is not published in the to intervene must state, to the extent

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 § 385.215 18 CFR Ch. I (4–1–19 Edition)
known, the position taken by the mov- (v) The motion conforms to the re-
ant and the basis in fact and law for quirements of paragraph (b) of this sec-
that position. tion.
(2) A motion to intervene must also (2) Except as otherwise ordered, a
state the movant’s interest in suffi- grant of an untimely motion to inter-
cient factual detail to demonstrate vene must not be a basis for delaying
that: or deferring any procedural schedule
(i) The movant has a right to partici- established prior to the grant of that
pate which is expressly conferred by motion.
statute or by Commission rule, order, (3)(i) The decisional authority may
or other action; impose limitations on the participa-
(ii) The movant has or represents an tion of a late intervener to avoid delay
interest which may be directly affected and prejudice to the other participants.
by the outcome of the proceeding, in- (ii) Except as otherwise ordered, a
cluding any interest as a: late intervener must accept the record
(A) Consumer, of the proceeding as the record was de-
(B) Customer, veloped prior to the late intervention.
(C) Competitor, or (4) If the presiding officer orally
(D) Security holder of a party; or grants a motion for late intervention,
(iii) The movant’s participation is in the officer will promptly issue a writ-
the public interest. ten order confirming the oral order.
(3) If a motion to intervene is filed
[Order 225, 47 FR 19022, May 3, 1982; 48 FR 786,
after the end of any time period estab- Jan. 7, 1983, as amended by Order 376, 49 FR
lished under Rule 210, such a motion 21705, May 23, 1984; Order 2002, 68 FR 51142,
must, in addition to complying with Aug. 25, 2003; Order 718, 73 FR 62886, Oct. 22,
paragraph (b)(1) of this section, show 2008]
good cause why the time limitation
should be waived. § 385.215 Amendment of pleadings and
(c) Grant of party status. (1) If no an- tariff or rate filings (Rule 215).
swer in opposition to a timely motion (a) General rules. (1) Any participant,
to intervene is filed within 15 days or any person who has filed a timely
after the motion to intervene is filed, motion to intervene which has not
the movant becomes a party at the end been denied, may seek to modify its
of the 15 day period. pleading by filing an amendment which
(2) If an answer in opposition to a conforms to the requirements applica-
timely motion to intervene is filed not ble to the pleading to be amended.
later than 15 days after the motion to (2) A tariff or rate filing may be
intervene is filed or, if the motion is amended or modified only as provided
not timely, the movant becomes a in the regulations under this chapter.
party only when the motion is ex- A tariff or rate filing may not be
pressly granted. amended, except as allowed by statute.
(d) Grant of late intervention. (1) In The procedures provided in this section
acting on any motion to intervene filed do not apply to amendment of tariff or
after the period prescribed under Rule rate filings.
210, the decisional authority may con- (3)(i) If a written amendment is filed
sider whether: in a proceeding, or part of a pro-
(i) The movant had good cause for ceeding, that is not set for hearing
failing to file the motion within the under subpart E, the amendment be-
time prescribed; comes effective as an amendment on
(ii) Any disruption of the proceeding the date filed.
might result from permitting interven- (ii) If a written amendment is filed in
tion; a proceeding, or part of a proceeding,
(iii) The movant’s interest is not ade- which is set for hearing under subpart
quately represented by other parties in E, that amendment is effective on the
the proceeding; date filed only if the amendment is
(iv) Any prejudice to, or additional filed more than five days before the
burdens upon, the existing parties earlier of either the first prehearing
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might result from permitting the inter- conference or the first day of evi-
vention; and dentiary hearings.

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 § 385.2006 18 CFR Ch. I (4–1–19 Edition)
proceedings in the relevant matter are the Commission; or legal public holi-
closed and all deadlines for further ad- day.
ministrative or judicial review have (b) Date of issuance of Commission rules
passed. or orders. (1) Any Commission rule or
(c) Electronic signature. In the case of order is deemed issued when the Sec-
any document filed in electronic form retary does the earliest of the fol-
under the provisions of this Chapter, lowing:
the typed characters representing the (i) Posts a full-text copy in the Divi-
name of a person shall be sufficient to sion of Public Information;
show that such person has signed the (ii) Mails or delivers copies of the
document for purposes of this section. order to the parties; or
[Order 225, 47 FR 19022, May 3, 1982, as (iii) Makes such copies public.
amended by Order 619, 65 FR 57092, Sept. 21, (2) Any date of issuance specified in a
2000; Order 653, 70 FR 8724, Feb. 23, 2005] rule or order need not be the date on
which the rule or order is adopted by
§ 385.2006 Docket system (Rule 2006).
the Commission.
(a) The Secretary will maintain a (c) Effective date of Commission rules or
system for docketing proceedings. orders. (1) Unless otherwise ordered by
(b) Any public information in any the Commission, rules or orders are ef-
docket is available for inspection and fective on the date of issuance.
copying by the public during the office (2) Any initial or revised initial deci-
hours of the Commission, to the extent
sion issued by a presiding officer is ef-
that such availability is consistent
fective when the initial or revised ini-
with the proper discharge of the Com-
tial decision is final under Rule 708(d).
mission’s duties and in conformity
with part 388 of this chapter. [Order 225, 47 FR 19022, May 3, 1982, as
amended by Order 375, 49 FR 21316, May 21,
[Order 226, 47 FR 19022, May 3, 1982; 48 FR 786,
1984; Order 376, 49 FR 21707, May 23, 1984;
Jan. 7, 1983]
Order 645, 69 FR 2504, Jan. 16, 2004; 84 FR 3983,
Feb. 14, 2019]
§ 385.2007 Time (Rule 2007).
(a) Computation. (1) Except as other- § 385.2008 Extensions of time (Rule
wise required by law, any period of 2008).
time prescribed or allowed by statute (a) Except as otherwise provided by
or Commission rule or order is com- law, the time by which any person is
puted to exclude the day of the act or required or allowed to act under any
event from which the time period be- statute, rule, or order may be extended
gins to run.
by the decisional authority for good
(2) The last day of any time period is
cause, upon a motion made before the
included in the time period, unless it is
expiration of the period prescribed or
a Saturday; Sunday; a day on which
previously extended.
the Commission closes due to adverse
conditions and does not reopen prior to (b) If any motion for extension of
its official close of business, even time is made after the expiration of a
though some official duties may con- specified time period, the decisional
tinue through telework-ready employ- authority may permit performance of
ees; part-day holiday that affects the the act required or allowed, if the mov-
Commission; or legal public holiday as ant shows extraordinary circumstances
designated in section 6103 of title 5, sufficient to justify the failure to act
U.S. Code. In each case the period does in a timely manner.
not end until the close of the Commis-
§ 385.2009 Notice (Rule 2009).
sion business of the next day which is
not a Saturday; Sunday; a day on Unless actual notice is given or un-
which the Commission closes due to ad- less newspaper notice is given as re-
verse conditions and does not reopen quired by law, notice by the Commis-
prior to its official close of business sion is provided by the Secretary only
even though some official duties may by publication in the FEDERAL REG-
kpayne on VMOFRWIN702 with $$_JOB

continue through telework-ready em- ISTER. Actual notice is usually given by

ployees; part-day holiday that affects service under Rule 2010.

1230

VerDate Sep<11>2014 12:12 Jun 05, 2019 Jkt 247061 PO 00000 Frm 01240 Fmt 8010 Sfmt 8010 Q:\18\18V1.TXT PC31
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46 FR 55926-01, 1981 WL 148950(F.R.)

RULES and REGULATIONS
DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 2, 4, 5, 16, and 131
[Docket No. RM80-39; Order No. 184]

Application for License for Major Unconstructed Projects and Major Modified
Projects; Application for License for Transmission Lines Only; and Application
for Amendment to License

Friday, November 13, 1981

*55926 Issued: November 6, 1981.

AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Final rule.

SUMMARY: The Federal Energy Regulatory Commission (Commission) amends the regula-
tions governing three kinds of licensing under Part II of the Federal Power Act (Act) for: (1)
Major water power projects that have an installed generating capacity greater than 1.5 meg-
awatts and that would either utilize the water power potential of a dam that, at the time
application is filed, is not constructed (“major unconstructed project”) or that would change
the state of existing project works so as to produce a significant increase in the normal max-
imum surface area or elevation of an impoundment or otherwise produce a significant envi-
ronmental impact (“major modified project”) ; (2) only the transmission lines that transmit
power from a licensed water power project or other hydroelectric project authorized by Con-
gress to the point of junction with the distribution system or with the interconnected pri-
mary transmission system; and (3) any amendment to a license that would entail a change
in the physical features, plans, mode of operation, or construction period of the project or its
boundary.

The rule would also make conforming changes in §§ 4.31, 4.50, 16.7, 131.2, and Appendix A
of Part 2 of the Commission’s requirements. The regulations would reorganize the license
applications. The regulations are designed to ease the burden of preparing applications and
to assist the Commission in processing applications for license. The rulemaking is therefore
expected to expedite hydropower development.

DATE: This rule is effective December 14, 1981.

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FOR FURTHER INFORMATION CONTACT:

Ronald Corso, Director, Division of Hydropower Licensing, Office of Electric Power Regula-
tion, Federal Energy Regulatory Commission, 825 N. Capitol Street, NE., Washington, D.C.
20426, (202) 376-9171

James Hoeker, Division of Rulemaking & Legislative Analysis, Office of the General Counsel,
Federal Energy Regulatory Commission, 825 N. Capitol Street, NE., Washington, D.C.
20426, (202) 357-9342

SUPPLEMENTARY INFORMATION:
Issued: November 6, 1981.

The Federal Energy Regulatory Commission (Commission) amends three regulations gov-
erning applications for license under Part I of the Federal Power Act (Act). First, the Com-
mission revises the licensing regulations governing major water power projects with an in-
stalled generating capacity greater than 5 megawatts (MW) that would utilize the water
power potential of a dam that, at the time application is filed, is not constructed (“major
unconstructed project”) or that would change the state of existing project works so as to
produce a significant increase in the normal maximum surface area or elevation of an im-
poundment or otherwise produce a significant environmental impact (“major modified pro-
ject”). Second, the Commission revises the regulations governing applications for license for
transmission lines that transmit power from a licensed water power project or other hydro-
electric project authorized by Congress to the point of junction with the distribution system
or with the interconnected primary transmission system. Third, the Commission revises the
regulations governing applications for any amendment to a license that would entail a
change in the physical features, plans, mode of operation, or construction period affecting
the project or its boundaries.

The rule would also make conforming changes in §§ 4.31, 4.50, 16.7, 131.2, and Appendix A
of Part 2 of the Commission’s regulations.

I. Background
This final rule is the third phase of a program of licensing reform for all projects within the
Commission’s jurisdiction built for the generation of electric power by means of water power.
The Commission issued its Notice of Proposed Rulemaking in this docket on January 23,
1981 (46 FR 10165, February 2, 1981).

The first phase of the program was instituted in 1978, when the Commission issued the so-
called “short-form” application procedures for all “minor” projects, i.e., those with a capacity
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of 1.5 MW or less.[FN1] On October 22, 1979, the Commission issued procedures applicable
to both preliminary permit and license applications, and which simplify the procedures for
application for preliminary permits, amendments to permits, and cancellations of per-
mits.[FN2]

1 Order No. 11, “Regulations Governing Applications for Short-form License (Minor)” (Docket
No. RM78-9), issued September 5, 1978, 43 FR 40215, September 11, 1978. The 1.5 MW capac-
ity criterion was based on the fact that the Commission is authorized under Section 10(i) of
the Act (16 U.S.C. 803(i)) to ease certain requirements for minor projects. “Minor” projects
should not be confused with so-called “small” hydroelectric power projects with an installed
capacity of 30 MW or less at existing dams which are encouraged under the Public Utility
Regulatory Policies Act of 1978 (“PURPA”) (16 U.S.C. 2705 et seq.). PURPA mandates simpli-
fied and expeditious licensing for such small water power projects, and, as amended by the
Energy Security Act of 1980 (94 Stat. 611), permits the Commission to exempt from licensing
and other requirements of the Act certain small hydroelectric power projects 5 MW or less. The
first phase of the Commission’s reforms therefore covered only a portion of the projects identi-
fied under PURPA.
FN2 Order No. 54, “Regulations Prescribing General Provisions for Preliminary Permit and
License Applications; and Regulations Governing Applications for Amendments to and Can-
cellation of Permits” (Docket No. RM79-23), issued October 22, 1979, 44 FR 61328, October 25,
1979.

On November 19, 1979, the Commission issued rules which established application proce-
dures for licensing major projects that are located at existing dams and have a generating
capacity greater than 1.5 MW.[FN3]

3 Order No. 59, “Regulations Governing Applications for License for Major Projects—Existing
Dams” (Docket No. RM79-36), issued December 16, 1979, 45 FR 75383, December 20, 1979.

The Commission has also issued related rules to encourage development of specialized kinds
of hydroelectric facilities. It recently established procedures to exempt from all, or part of,
Part I of the Act any small conduit hydroelectric facility that has a generating capacity of
15 MW or less.[FN4] Similarly, the Commission issued rules on November 7, 1980, setting
forth procedures to exempt from licensing and other requirements of the Act any small hy-
droelectric power projects having a proposed generating capacity of 5 MW or less.[FN5]

4 Order No. 76, “Exemptions of Small Conduit Hydroelectric Facilities from Part I of the Federal
Power Act” (Docket No. RM79-35), issued April 18, 1980, 45 FR 28085, April 28, 1980.
FN5 Order No. 106, “Exemption from All or Part of Part I of the Federal Power Act of Small
Hydroelectric Power Projects with an Installed Capacity of 5 Megawatts or Less” (Docket No.
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RM80-65), issued November 7, 1980, 45 FR 76115, November 16, 1980.

The existing requirements for the types of license applications which are affected by the
rulemaking in this *55927 docket are located in various parts of Title 18 of the Code of
Federal Regulations. Subtantive requirements applicable to one or all of these applications
are found in §§ 2.80 and 2.81, Appendix A to Part 2, §§ 4.40, 4.41, 4.70, 4.71, 5.1 through 5.4,
16.7, 131.2, 131.3, and 131.4 of the Commission’s regulations. A potential applicant now
faces the prospect of meeting information requirements embodied in up the 23 separate
exhibits.

The final rule set forth in this docket is designed to ease the burden of compliance in several
ways. First, it reduces the information needed for the Commission to carry out its duties
under law in an informed and responsible manner.[FN6] For example, the provisions requir-
ing extensive documentation of the nature of the applicant and its authority to file the ap-
plication have been eliminated or reduced, and requirements relating to evidence of compli-
ance with state laws have been simplified.[FN7] In any case, an applicant will continue to
be obligated to comply with any applicable state law not preempted by Part I of the Act.

6 Section 405 of the Public Utility Regulatory Policies Act of 1978 (PURPA) (16 U.S.C. 2705)
provides that the Commission’s simplified licensing procedures must be “consistent with the
applicable provisions of law” and that no project covered by the procedures will be exempted
from “any requirement applicable to any such project under the National Environmental Pol-
icy Act of 1969, the Fish and Wildlife Coordination Act, the Endangered Species Act, or any
other provision of Federal Law.”
FN7 1See existing §§ 4.40(b) and 4.41—Exhibits A-F. These requirements have been distilled
to simple statements in the initial portion of the application under § 4.41(a). Since the entire
application is subscribed and verified under § 1.16 of our rules, the applicant’s statements will
suffice as evidence. Additional information will be requested in cases where it is needed. Con-
sistent with the policy announced in the Notice of Proposed Rulemaking in Docket No. RM81-
15, issued February 20, 1981, 46 FR 14751, March 3, 1981, the Commission will request from
municipalities evidence of competency under state law to engage in the electric power busi-
ness.

Second, the Commission has consolidated the requests for information according to related
subject matter. All paragraphs and exhibits requesting information on environmental mat-
ters [FN8] have been consolidated into Exhibit E (Environmental Report), required under §
4.41(f). Improved organization of the application requirements should reduce confusion and
redundancy in the materials submitted.

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8 See existing §§ 2.80, 2.40(k) and (1), 4.41 (Exhibits H, R, S, V, and W), and Appendix A to Part
2.

Finally, the rule will help minimize the element of subjective interpretation in the Commis-
sion’s requirements by reducing the requests for information, where possible, to simple, ob-
jective, descriptions of what is necessary. The Commission believes that clearer, simpler re-
quirements and cooperation between the Commission and applicants will help avoid the
application deficiencies that have slowed the licensing process in the past.

Projects to the type covered by this rulemaking usually result in more significant environ-
mental impacts than do water, power projects at existing dams which do not entail signifi-
cant construction or alteration of the impoundment level. Under the new regulations, the
Commission therefore requires of any applicant for license for a major unconstructed project
or a major modified project an Environmental Report of considerably greater detail than it
does for smaller projects and most projects at existing dams. Under any of the Commission’s
hydropower licensing regulations, the Environmental Report (Exhibit E) submitted by the
applicant must be commensurate with the size and type of water power project for which
the applicant seeks a license or with the scope of any proposed amendment to an existing
license.[FN9] N

9 Section 2.80 through 2.82 constitute most of the Commission’s existing environmental review
regulations, under the National Environmental Policy Act of 1969 (NEPA). Under this rule-
making, the environmental report requirement of Appendix A of Part 2 will cease to apply to
any application relating to hydroelectric project licensing and will be replaced by the special-
ized Exhibit E in each licensing regulation.

Under the final rule, an applicant for license for any project with an installed generating
capacity of 5 megawatts or less may file under the Commission’s abbreviated application
procedures.

The Commission has issued a companion rulemaking which provides abbreviated applica-
tion procedures for all projects with a total generating capacity of 5 MW or less.[FN10]

10 “Regulations Governing Applications for License for Minor Water Power Projects and Major
Water Power Projects 5 Megawatts or Less,” (Docket No. RM81-10), issued January 21, 1981.
Many of the section numbers cross-referenced in the rules in this docket and in Docket No.
RM81-10 derive from the new, rather than existing, regulations.

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However, this change will not alter the current requirement that a more extensive Environ-
mental Report (Exhibit E) be filed for any major unconstructed or major modified project
with an installed capacity in excess of 1.5 MW.

II. Analysis of Comments

Most commenters express overall approval of the Commission’s efforts to simplify licensing
requirements pursuant to section 405 of PURPA. The single greatest source of concern is
the type and amount of information required of a license applicant. A variety of comments
declare that the Commission’s proposed license application requirements are too burden-
some. Others argue that more information should be required.

A. License application for Major Unconstructed Projects and Major Modified Pro-
jects
1. Exhibit E. (Environmental Report)

a. General Comments.

Exhibit E, the Environmental Report, received particular attention. Some public utilities
claim that the proposed rule represents an increase in the amount and level of detail of data
over that required in existing license requirements. This is an incorrect assumption. The
final rule does not contemplate submittal of a greater variety of information than that re-
quired under existing §§ 4.40 and 4.41. Specifically, the data requirements under former
Exhibits R, S, V, and W and the environmental report set forth in Appendix A of § 2.81, have
been consolidated and reorganized. The Commission has reduced filing requirements, where
possible, consistent with its previous hydroelectric rulemakings. However, of all of the re-
vised Exhibits E established to date, the environmental report required for projects included
in this rulemaking is the least susceptible to major reductions in data requirements because
of the environmental consequences associated with the construction of a new dam and im-
poundment.

Most of the data now required under Appendix A, including that related to the temporary
and permanent impacts of project construction on water use and quality, fish and wildlife
resources, historic resources, socioeconomic and aesthetic features, is necessary to perform
a thorough environmental analysis of a project that will fundamentally alter the ecology
and geography of an area. The applicant’s Exhibit E will form the basis for the Environmen-
tal Impact Statement that will usually be prepared for projects licensed under this rule. The
data required is also important to the success of the consultation with agencies having re-
sponsibility to review project impacts that occurs during any licensing proceeding. In light
of the variety of impacts that flow from dam construction and the creation or substantial
alteration of the affected impoundment, an applicant must supply the Commission with a

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imposes environmental requirements on actions undertaken by the Commission or a regu-

lated entity pursuant to sections 202(b), 210, 211 and 212 of the Federal Power Act. The
proposed amendment was designed only to indicate that Appendix A is replaced by the Ex-
hibits E in Part 4, for water power projects, leaving other actions under the Act covered by
Appendix A, to the extent an environmental report may be required. A change in title alone
imposes no substantive requirements to prepare an Environmental Report for, say, wheeling
or interconnection cases. It may otherwise be determined that these actions would entail
construction which must be investigated under NEPA. Nevertheless, the title is revised to
avoid this misunderstanding.

C. Amendment of License
Most comments on the regulations governing amendments to license suggest establishing a
threshold level of proposed modification beyond which a licensee would be subject to compe-
tition by interested parties. Spiegel states that any proposed change in capacity of 1.5 MW
or greater should be considered a “new project” subject to competition under the general
licensing regulations.

The Commission acknowledges that a licensee’s proposal to change the configuration or op-
eration of its licensed project may not, in all cases, be consistent with the plan of develop-
ment contemplated when the project was licensed. As a general matter, amendments to a
license, whether they add capacity, change project works, or otherwise reshape the project,
are not so fundamental as to create a different licensed project, thereby necessitating public
notice, intervention, and protest procedures. It would, in any case, be very difficult to pre-
scribe universal criteria applicable to all projects indicating which amendments are permis-
sible and which are not. For example, an increase of 1.5 megawatts of installed capacity may
be incidental in one case and important in another. Such a change might necessitate major
operational changes or virtually none at all, depending on the size, location or operational
characteristics of the project. In any case, section 6 of the Act prohibits amendment of a
project license without the mutual consent of the licensee and the Commission. In those
instances where significant new project works are proposed to be added or a major change
in existing works or mode of operation is proposed, the Commission may withhold its assent
or issue public notice in order to permit participation in a proceeding by interested persons.
However, the Commission may not initiate a process that might defeat a license based on a
proposed amendment.[FN15] The final rule does not establish, in terms of installed capacity
or other criteria, a threshold beyond which a new license is required rather than an amend-
ment to an existing license. The Commission requests that, prior to submittal of any appli-
cation for amendment, the licensee consult with the Commission to ascertain whether the
proposed changes in the license is *55932 within the scope of the project. The final rule also
encourages such a practice.

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15 The reference to § 4.33 in existing § 5.4, which a commenter pointed out, is an errant and
outdated cross-reference and does not imply that the competing application provisions in ex-
isting § 4.33 apply to any amendments of license, as such. Part 5 is revoked by this rule.

PG&E argues that the amendment of license requirements should not apply except to
changes in capacity greater than 5 MW. As stated above, the consequences of change in pro-
ject operation or configuration will vary from project to project. Terms and conditions may
permit a change in one instance but not in another. Therefore, the Commission is reluctant
to arbitrarily establish a threshold for applicability of §§ 4.200 and 4.201 based only on an
amount of proposed installed capacity.

Some commenters express uncertainty about whether the installed capacity levels referred
to in proposed § 4.201(b) pertain to the increment of additional capacity proposed in an
application for amendment of license or the total installed capacity including any new gen-
erating capacity proposed by the licensee. The Commission clarifies this provision to indicate
that total installed capacity after the amendment of a license is what determines the appro-
priate exhibits for submittal.

In response to a comment from EEI, the regulations now permit, in the interest of flexible
application of the requirements and minimizing unnecessary filings, an applicant to submit
only the revised portion of an exhibit affected by the amendment. The Commission main-
tains in its permanent records all exhibits and amendments submitted by an applicant-
licensee.

D. Paperwork Reduction Act of 1980 (PRA)

One commenter perceives the revised Exhibit E, § 4.41(f), as an undue paperwork burden
and requests review and approval of the regulation by the Office of Management and Budget
under the PRA. The Commission has long recognized the practical need for, and legislative
interest in, the reduction or elimination of unnecessary regulatory burdens. The final rules
in this docket and in Docket No. RM81-10 manifest this recognition. The rulemaking in this
docket completes the major portion of the Commission’s three-year program to reorganize,
clarify, and reduce all of its preliminary permit and license application requirements.

The Commission’s revised hydropower regulations have thus far helped reduce, by an aver-
age of 50 percent, the time which the Commission requires to process preliminary permit
and licensing applications for all types of projects. Regulatory delay increases the capital
expenditures on projects by as much as one percent per month, if a 12 to 15 percent inflation
rate is assumed. The duplicative, lengthy, and discursive hydropower application require-
ments which existed before the Commission’s recent revisions (existing §§ 4.40 and 4.41

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other appropriate legal authority, evidencing that the municipality is competent under such
laws to engage in the business of developing, transmitting, utilizing, or distributing power.]

(ii) [For any applicant which, at the time of application for license for transmission line only,
is a licensee.] The statutory or regulatory requirements of the state(s) in which the trans-
mission line would be located and that affect the project as proposed with respect to bed and
banks and to the appropriation, diversion, and use of water for power purposes, are: [provide
citations and brief identification of the nature of each requirement.]

(iii) The steps which the applicant has taken or plans to take to comply with each of the laws
cited above are: [provide brief descriptions for each law.]

(b) Required exhibits. The application must contain the following exhibits, as appropriate:

(1) For any transmission line that, at the time the application is filed, is not constructed and
is proposed to be connected to a licensed water power project with an installed generating
capacity of more than 5 MW—Exhibits A, B, C, D, E, F, and G under § 4.41 of this chapter;

(2) For any transmission line that, at the time the application is filed, is not constructed and
is proposed to be connected to a licensed water power project with an installed generating
capacity of 5 MW or less—Exhibits E, F, and G under § 4.61 of this chapter; and

(3) For any transmission line that, at the time the application is filed, has been constructed
and is proposed to be connected to any licensed water power project—Exhibits E, F, and G
under § 4.61 of this chapter.

9. Part 4 is amended by adding a new Subpart L to read as follows:

*****

Subpart L—Application for Amendment of License

Sec.4.200 Applicability.4.201 Contents of application.4.202 Alteration and extension of li-
cense.* * * * *

Subpart L—Application for Amendment of License

18 CFR § 4.200

§ 4.200 Applicability.
This part applies to any application for amendment of a license, if the applicant seeks to:

(a) Make a change in the physical features of the project or its boundary, or make an addi-
tion, betterment, abandonment, or conversion, of such character as to constitute an altera-
tion of the license;

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(b) Make a change in the plans for the project under license; or

(c) Extend the time fixed on the license for commencement or completion of project works.
18 CFR § 4.201

§ 4.201 Contents of application.

An application for amendment of a license for a water power project must contain the fol-
lowing information in the form specified. As provided in the appropriate Exhibit E require-
ments, the appropriate Federal, state, and local resource agencies must be given the oppor-
tunity to comment on the proposed amendment prior to filing of the application for amend-
ment of license. A list of the agencies to be consulted can be obtained from the Director of
the Commission’s Division of Hydropower licensing.

(a) Initial statement.

BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION; APPLICATION

FOR AMENDMENT OF LICENSE
(1) [Name of applicant] applies to the Federal Energy Regulatory Commission for an amend-
ment of license for the [name of project] water power project.

(2) The exact name, business address, and telephone number of the applicant are:

————

————

————
(3) The applicant is a [citizen of the United States, association of citizens of the United
States, domestic corporation, municipality, or state, as appropriate, see 16 U.S.C. 796], licen-
see for the water power project, designated as Project No. ——— in the records of the Federal
Energy Regulatory Commission, issued on the ——— day of —————, 19——.

(4) The amendments of license proposed and the reason(s) why the proposed changes are
necessary, are: [Give a statement or description]

(5)(i) The statutory or regulatory requirements of the state(s) in which the project would be
located that affect the project as proposed with respect to bed and banks and to the appro-
priation, diversion, and use of water for power purposes are: [provide citation and brief iden-
tification of the nature of each requirement.]

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(ii) The steps which the applicant has taken or plans to take to comply with each of the laws
cited above are: [provide brief description for each law.]

(b) Required exhibits. The application must contain the following exhibits, or revisions or
additions to any exhibits on *55944 file, commensurate with the scope of the licensed project:

(1) For amendment of a license for a water power project that, at the time the application is
filed, is not constructed and is proposed to have a total installed generating capacity of more
than 5 MW—Exhibits A, B, C, D, E, F, and G under § 4.41 of this chapter;

(2) For amendment of a license for a water power project that, at the time the application is
filed, is not constructed and is proposed to have a total installed generating capacity of 1.5
MW or less—Exhibits E, F, and G under § 4.61 of this chapter;

(3) For amendment of a license for a water power project that, at the time the application is
filed, is not constructed and is proposed to have a total installed generating capacity of 5
MW or less, but more than 1.5 MW—Exhibits F and G under § 4.61 of this chapter, and
Exhibit E under § 4.41 of this chapter;

(4) For amendment of a license for a water power project that, at the time the application
for amendment is filed, has been constructed, and is proposed to have a total installed gen-
erating capacity of 5 MW or less—Exhibit E, F and G under § 4.61 of this chapter;

(5) For amendment of a license for a water power project that, at the time the application is
filed, has been constructed and is proposed to have a total installed generating capacity of
more than 5 MW—Exhibits A, B, C, D, E, F, and G under § 4.61 of this chapter.

(c) Consultation and waiver. (1) If an applicant for license under this subpart believes that
any exhibit required under paragraph (b) of this section is inappropriate with respect to the
particular amendment of license sought by the applicant, a petition for waiver of the re-
quirement to submit such exhibit may be submitted to the Commission under § 1.7 of this
chapter, after consultation with the Commission’s Division by Hydropower Licensing.

(2) A licensee wishing to file an application for amendment of license under this section may
seek advice from Commission staff whether the proposed amendment is consistent with the
scope of the existing licensed project.
18 CFR § 4.202

§ 4.202 Alteration and extension of license.

(a) If it is determiend that approval of the application for amendment of license would con-
stitute a significant alteration of license pursuant to section 6 of the Act, 16 U.S.C. 799,
public notice of such application shall be given at least 30 days prior to action upon the
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application.

(b) Any application for extension of time fixed in the license for commencement or comple-
tion of construction of project works must be filed with the Commission not less than three
months prior to the date or dates so fixed.

PART 5—[REMOVED]
10. Part 5 is removed.

PART 16—PROCEDURES RELATING TO TAKEOVER AND RELICENSING OF LI-

CENSED PROJECTS
18 CFR § 16.7
11. Section 16.7 is amended by revising the introductory statement to read as follows:
18 CFR § 16.7

§ 16.7 Application for non-power license.

Each application for a “non-power license” must conform to the requirements of § 4.51 of
this chapter and must include the information specified in paragraphs (a) through (c) of this
section. The application and all accompanying exhibits must be filed in accordance with §
4.31 of this chapter.
*****

PART 131—FORMS
18 CFR § 131.2

§ 131.2 [Removed]
18 CFR § 131.2
12. Section 131.2 is removed.
18 CFR § 131.5

§ 131.5 [Removed]
18 CFR § 131.5
13. Section 131.5 is removed.

[FR Doc. 81-32680 Filed 11-12-81; 8:45 am]

BILLING CODE 6717-01-M

End of Document © 2020 Thomson Reuters. No claim to original U.S. Gov-

ernment Works.

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 54

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 al31.7 "30 trf.'

WASHINGTON
GOVERNMENT PRINTING OFFICE
1928

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 ALTERATIONS OF LICENSES.
I
Changes In project plans Involving no subst:a.ntll\l modification in t he original scheme ot
development as authorized in a license, and corrections In or changes ot the provisions
ot a license involving no 1r11bst:a.ntlal modifications or Its original terms and conditions
do not conlrtitute alterations ot the license within the meaning or sec-tlon 6 ot the
Federal water-power act so a..s to require the ninety days' public notice therein i>t:e<:lfied.

Chief Counsel to the Executive Secretary, March 12, 1923.

Subject: Alterations of licenses.
In your memorandum of February 24, 1923, you state that it becomes neces-
sary to make changes in licenses for such purposes as correction of errors,
modification of plans, extension of time, etc., and request my opinion upon

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 224 REPORT OF THE FEDERAL POWER COM:MISSIOX.

certain questions with regard to what changes constitute " alterations " of the
license that require 90 days' public notice within the meaning of the 'provision
of section 6 of the Federal water power act, that "licenses • • • may be
altered or surrendered only upon mutual agreement between the licensee
and the commission after ninety days' public notice." You invite attention \
to section 4 (d) and (e), which provide "that upon the filing of any applica-
tion for a license which has not been preceded by a preliminary permit," and
" upon the filing of any application for a preliminary permit • • • the
commission, before granting such application, shall at once give notice of
such application in writing to any State or municipality likely to be interested
in or affected by such application; and shall also publish notice of such
application for eight weeks in a daily or weekly newspaper published in the
county or counties in which the project or any part thereof or the lands
affected thereby are situated;" and say-
r- " In consideration of the fact that every project is advertised and public
notice thereof gi'>en in accordance with the requirement abo>e quoted, and
that before license is issued the origia:lal plans as thus advertised may be
materially modified at the option of the applicant or upon requirement of the
commission without additional advertising or public notice, it would appear
that the 'alterations' contemplated by section 6, in so far as they involve
the project plans, have reference only to such changes in project plans as would
constitute a substantial modification of the development as originally pro·
posed or authorized, and not to such changes in or adjustment of such plans
as may be necessary to carry out in the most satisfactory manner the general
scheme proposed; and that, in so far as they involve the license in general
have reference only to such changes in its terms and conditions as would con·
stitute new terms and conditions, and not to mere corrections of errors or to
extensions of time within the scope authorized by the act, or to other changes
of similar character involving no substantial modification of the original
provisions of the license."
The question submitted is whether or not. after license is issued, changes
falling within the two following classes constitute alterations of the license
within the meaning of section 6 of the act so as to require the 90 days' public
notice therein specified : ·
"1. Changes in project plans involving no substantial modification of the
general scheme of development as originally proposed or authorized; and
"2. Corrections in or changes of the provisicms of a license inYoh·ing no
substantial modification of its original terms and conditions."
The language of section 6, if literally construed, would include any
change in a license or in the plans forming a part of the license, but other
provisions of the act indicate that the proYisions of section 6 should not
r eceh·e this literal construction. Thus, section 10 ( b) of the act provides-
" That except when emergency shall require for the protection of na>igation.
life, health, or property, no substantial alteration or: a.dditio11 not in conformit,11
1 oith the approved plans shall be made to any dam or other project works con·
structed hereunder of a capacitr in excess of one hundred horsepower without
the prior approval of the commission; and any emergency alteration or additiom
so made shall thereafter be subject to such modification and change as thi>
commission may direct."
The implication from this language is that immaterial alterations. and sub·
stantial alterations conforming with the approYed plans, may be made during
construction of the project works, without requiring the prior apprornl of the
commission, and that a substantial alteration or addition not in conformitr
with the nooroYed olans, if mncle in emergency, shall thereafter be subject to

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 REPORT OF THE FEDERAL POWER COMMISSION. 225
such modification and change as the commlst'lion may direct. Moreover,
changes which do not affect the scheme of development or character of the
project are cO\·ered by t he public notice which was given before the license was
issued. and. therefore, should lilOt be assumed to be within the Intent of the
provision under consideration.
In construing a statute, each provision should be considered In the light of
other provisions of the statute and the object and purpose of the act, so as to
carry out the Intent of the legislature. As stated by the Supreme Court In
Jacobson v. :\fassachusetts (197 U. S. 39 ) -
"All laws should recei>e a sensible construction. General terms should be
so limited In their application as not to lead to Injustice, oppression, or absurd
consequence. It will always, therefore, be presumed that the legislature
intended exceptions to Its language which would avoid results of that character.
The reason of the law in such cases should prevail over Its letter."
I am, therefore, of opinion that the requirement of section 6 that Ucenses
"may be altered or surrendered only ·upon mutual agreement between the
licensee and the commission after 90 days' public notice " should be construe•}
as limited to such alterations in project plans as would constitute a substan-
tial modification or departure from the plan of development as originally pro-
posed or authorized and not to Include such changes in or adjustment or
such plans as may be necessary to carry out In the most satisfactory manner
the general scheme authorized by the license; and further, that In so far as
they involve the license in general, the provision has reference only to such
changes in its terms and conditions as would constitute new terms and con-
ditions and not mere corrections of errors or extensions of time within the
scope authorized by the act, or to other changes of similar character involvin;(
no substantial modification of the original provisions of the license.
For the reasons stated above I would answer the questions submitted by
stating that in my opinion changes in project plans or corrections in or changes
in the provisions of the license falling within the two classes stated in the
<iuestions submitted do not constitute alterations of the license in the meaning
of section 6 of the act, so as to require the 90 days' public notice therein
specified.
Approved by the commission, April 30, 19'23.

MUNICIPALITIES-COMPETENCY.
The term " municipality " is defined in the Federal water-power act as including a
"political subdivision or agency Gf a. State oompeten.t under the law8 flhereof to carry
on the business of developing. tran8Dlittlng, utilizing, or distributing power." Any
statutory or constitutional limitation or rE'strict!on on its powers which would pro-
hibit or prevent it from making- such development as the Federal Power Commission
ttnds to be required would go to the competency: ot the " municipality " as an appli-
cant for such development. Preliminary permits are issued, as specified in the statute,
" tor the purpose ot enabling awlican.t.q for a to secure the data and perform
the acts required by the act prior to the issue or a license, so that the applicant for a
prelimillary permit must be competent to receive a license. A preliminary permit may
not. therefore, be ginn !or the purpose or enabling an applicant to qualify as; to
competency.
Chief Counsel to the Executive Secretary, March 27, 1923.
Subject: Competency of municipalities as applicants under the Federal water
power act.
In the matter of the application of the city of Louisville. K y., for a pre-
liminary permit and license for the deYoloprnent of power to be made a>ailable
by the proposetl 1·econstruction of tile Cnited States Government lock a nd dum

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National Parks Conservation Association v. FERC
9th Cir. Nos. 19-72915, 19-73079 (consolidated)

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the

Clerk of the Court for the United States Court of Appeals for the Ninth

Circuit by using the appellate CM/ECF system on April 6, 2020.

Participants in the case who are registered CM/ECF users will be

served by the appellate CM/ECF system.

/s/ Jared B. Fish

Jared B. Fish
Attorney

Federal Energy Regulatory Commission

Washington, DC 20426
Tel.: (202) 502-8101
Fax: (202) 273-0901
E-mail: Jared.Fish@ferc.gov