266 FEDERAL POWER ACT-SEC. 4 1935 Amendment. Section 201 of the Act of August 26, 1935, revised the definition of "reservations" in subdivision (2) to exclude national parks and national monuments. This has the effect of confirming the prohibition in the Act of March 3, 1921, 41 Stat. 1353, against granting licenses for projects in national parks and monuments without specific authority of Congress. Sec. 4. [General powers of Commission.]-The Commission is hereby authorized and empowered (a) [Investigations and data.]-To make investigations and to collect and record data concerning the utilization of the water resources of any region to be developed, the water-power industry and its relation to other industries and to interstate or foreign commerce, and concerning the location, capacity, development costs, and relation to markets of power sites, and whether the power from Government dams can be advantageously used by the United States for its public purposes, and what is a fair value of such power, to the extent the Commission may deem necessary or useful for the purposes of this Act. (b) [Statement of costs of construction, etc., to be filed by licensees-Commission to have free access to project, records, etc.]—To determine the actual legitimate original cost of and the net investment in a licensed project, and to aid the Commission in such determinations, each licensee shall, upon oath, within a reasonable period of time to be fixed by the Commission, after the construction of the original project or any addition thereto or betterment thereof, file with the Commission in such detail as the Commission may require, a statement in duplicate showing the actual legitimate original cost of construction of such project, addition, or betterment, and of the price paid for water rights, rights-of-way, lands, or interest in lands. The licensee shall grant to the Commission or to its duly authorized agent or agents, at all reasonable times free access to such project, addition, or betterment, and to all maps, profiles, contracts, reports of engineers, accounts, books, records and all other papers and documents relating thereto. The statement of actual legitimate original cost of said project and revisions thereof as determined by the Commission, shall be filed with the Secretary of the Treasury. (c) [Cooperation with Federal and State agencies.]-To cooperate with the executive departments and other agencies of State or National Governments in such investigations; and for such purpose the several departments and agencies of the National Government are authorized and directed upon the request of the Commission, to furnish such records, papers, and information in their possession as may be requested by the Commission, and temporarily to detail to the Commission such officers or experts as may be necessary in such investigations. (d) [Public information and use of Commissions reports and investigations-Report to Congress.]-To make public from time to time the information secured hereunder and to provide for the publication of its reports and investigations in such form and manner as may be best adapted for public information and use. The Commission, on or before the 3d day of January of each year, shall submit to Congress for the fiscal year preceding a classified report showing the permits and licenses issued under this Part, and in each case the FEDERAL POWER ACT-SEC. 4 267 parties thereto, the terms prescribed, and the moneys received if any, on account thereof. Such report shall contain the names and show the compensation of the persons employed by the Commission. (e) [Licenses for dams and other facilities.]-To issue licenses to citizens of the United States, or to any association of such citizens, or to any corporation organized under the laws of the United States or any State thereof, or to any State or municipality for the purpose of constructing, operating, and maintaining dams, water conduits, reservoirs, power houses, transmission lines, or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States, or upon any part of the public lands and reservations of the United States (including the Territories), or for the purpose of utilizing the surplus water or water power from any Government dam, except as herein provided: Provided, That licenses shall be issued within any reservation only after a finding by the Commission that the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired, and shall be subject to and contain such conditions as the Secretary of the department under whose supervision such reservation falls shall deem necessary for the adequate protection and utilization of such reservations: Provided further, That no license affecting the navigable capacity of any navigable waters of the United States shall be issued until the plans of the dam or other structures affecting the navigation have been approved by the Chief of Engineers and the Secretary of the Army. Whenever the contemplated improvement is, in the judgment of the Commission, desirable and justified in the public interest for the purpose of improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, a finding to that effect shall be made by the Commission and shall become a part of the records of the Commission: Provided further, That in case the Commission shall find that any Government dam may be advantageously used by the United States for public purposes in addition to navigation, no license therefor shall be issued until two years after it shall have reported to Congress the facts and conditions relating thereto, except that this provision shall not apply to any Government dam constructed prior to June 10, 1920: And provided further, That upon the filing of any application for a license which has not been preceded by a preliminary permit under subsection (f) of this section, notice shall be given and published as required by the proviso of said subsection. (f) [Preliminary permits.]—To issue preliminary permits for the purpose of enabling applicants for a license hereunder to secure the data and to perform the acts required by section 9 hereof: Provided, however, That upon the filing of any application for a preliminary permit by any person, association, or corporation 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 once each week for four weeks in a daily or weekly newspaper published in the 268 FEDERAL POWER ACT-SEC. 4 county or counties in which the project or any part thereof or the lands affected thereby are situated. (g) [Investigation of occupancy for developing power-Orders.]—Upon its own motion to order an investigation of any occupancy of, or evidenced intention to occupy, for the purpose of developing electric power, public lands, reservations, or streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States by any person, corporation, State, or municipality and to issue such order as it may find appropriate, expedient, and in the public interest to conserve and utilize the navigation and water-power resources of the region. (41 Stat. 1065; § 202, Act of August 26, 1935, 49 Stat. 839; 16 U.S.C. § 797) EXPLANATORY NOTES 1953 Modification. Section 3 of the Act of August 15, 1953, as amended, 67 Stat. 587, provides that subsection 4 (b) shall not apply to any project owned by a State or a municipality. The text of the 1953 Act appears herein as a note following section 14 of this Act. 1935 Amendment. Section 202 of the Act of August 26, 1935, (1) changed the designation of the subsections; (2) in subsection (e) substituted "streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several states" for "navigable waters of the United States"; (3) added subsection (g); (4) eliminated material dealing with subjects covered in Parts II and III; and Licenses 1-4 NOTES OF National parks and monuments 2 1. Licenses-Relation to State laws It was the intention of Congress in enacting the Federal Power Act to secure comprehensive development of national resources and not merely to prevent obstructions to navigation. The detailed provisions of the Act providing for the Federal plan of regulation leave no room or need for conflicting state controls. Where the Federal Government supersedes the state government, there is no suggestion that the two agencies both shall have final authority. Therefore, since a state permit is not required, there is no justification for the Federal Power Commission, as a condition precedent to considering an application for a license for a water power project on navigable waters, to require that the applicant first obtain a permit for the (5) made several additional technical changes. 1921 Limitation on Projects in National Parks. The Act of March 3, 1921, repealed so much of the original Federal Water Power Act as authorized the granting of licenses by the Federal Power Commission for facilities in existing national parks and monuments. The text of the 1921 Act appears herein in chronological order. Section 212 of the Act of August 26, 1935, 49 Stat. 847, provides specifically that the 1921 Act and any other act relating to national parks and monuments are not affected. Editor's Note, Annotations. Annotations of opinions interpreting this Act are included only to the extent deemed relevant to activities of the Bureau of Reclamation. OPINIONS project under state law. The securing of a state permit is not in any sense a condition precedent or an administrative procedure that must be exhausted before securing a Federal license. First Iowa Cooperative v. Federal Power Commission, 328 U.S. 152 (1946). The Congress has the same power under the Property Clause of the Constitution to grant exclusive regulatory authority to the Federal Power Commission to issue licenses for water power projects on a non-navigable stream on lands in the ownership or control of the United States, as it does under the Commerce Clause with respect to navigable waters. Federal Power Commission v. Oregon, 349 U.S. 435, 441-46 (1955). In reviewing a license issued by the Federal Power Commission for a water power project on a non-navigable stream on reserved lands of the United States, it is not necessary for the court to pass upon the contention of the State of Oregon that the Acts of July 26, 1866, July 9, 1870, and the Desert Land Act of 1877 constitute an FEDERAL POWER ACT-SEC. 6 The Act of March 4, 1911, 36 Stat. 1253, regarding transmission line easements over public lands, national forests, and reservations, has not been superseded, so far as Federal reclamation project transmission lines are concerned, by the Federal Water Power Act of June 10, 1920, 41 Stat. 1063. Decision of Assistant Secretary, A-17072 (April 25, 1933). The applicability of the Acts of February 15, 1901, and March 4, 1911, to rights of way for power purposes over public lands, was superseded by the Federal Water Power Act, as amended. Therefore, applications to the United States for hydroelectric power plant sites on public lands or rights of way 269 for main or primary hydroelectric power transmission lines must be made to the Federal Power Commission. On the other hand, rights of way for transmission lines which are not primary lines must be secured under the 1901 or 1911 Acts. 43 C.F.R. § 2234.4-1(3) (1965). In the exercise of its responsibility as guardian of the public domain-waterways and public lands-under sections 4(e), 4(g) and 10(a) of the Federal Power Act, the Commission might well determine that a license should be granted to a public utility only on condition that it make available its excess transmission capacity to transmit energy generated in power plants of the United States. Federal Power Commission v. Idaho Power Co., 344 U.S. 17 (1952). 4. Standing to sue The Secretary of the Interior and an association of power cooperatives have standing to petition for judicial review of an order of the Federal Power Commission granting a license to a private power company to construct a hydroelectric generating plant on a site (Roanoke Rapids) allegedly approved by Congress for Federal development. United States ex rel Chapman v. Federal Power Commission, 345 U.S. 153 (1953), reversing on this ground 191 F. 2d 796 (4th Cir. 1951). Sec. 5. [Preliminary permit-Conditions-Cancellation for cause.]—Each preliminary permit issued under this Part shall be for the sole purpose of maintaining priority of application for a license under the terms of this Act for such period or periods, not exceeding a total of three years, as in the discretion of the Commission may be necessary for making examinations and surveys, for preparing maps, plans, specifications, and estimates, and for making financial arrangements. Each such permit shall set forth the conditions under which priority shall be maintained. Such permits shall not be transferable, and may be canceled by order of the Commission upon failure of permittees to comply with the conditions thereof or for other good cause shown after notice and opportunity for hearing. (41 Stat. 1067; § 203, Act of August 26, 1935, 49 Stat. 841; 16 U.S.C. § 798) EXPLANATORY NOTE 1935 Amendment. The Act of August 26, 1935, 49 Stat. 841, amended section 5 by eliminating the words "and a license issued" which appeared at the end of the second sentence and by adding at the end of the last sentence the words "or for other good cause shown after notice and opportunity for hearing." Sec. 6. [Term of license-Acceptance of conditions by licensee-Revocation or surrender of license.]-Licenses under this Part shall be issued for a period not exceeding fifty years. Each such license shall be conditioned upon acceptance by the licensee of all the terms and conditions of this Act and such further conditions, if any, as the Commission shall prescribe in conformity with this 270 FEDERAL POWER ACT-SEC. 7 Act, which said terms and conditions and the acceptance thereof shall be expressed in said license. Licenses may be revoked only for the reasons and in the manner prescribed under the provisions of this Act, and may be altered or surrendered only upon mutual agreement between the licensee and the Commission after thirty days' public notice. Copies of all licenses issued under the provisions of this Part and calling for the payment of annual charges shall be deposited with the General Accounting Office, in compliance with section 3743, Revised Statutes, as amended (U.S.C., title 41, sec. 20). (41 Stat. 1067; § 204, Act of August 26, 1935, 49 Stat. 841; 16 U.S.C. § 799) EXPLANATORY NOTE 1935 Amendment. The Act of August 26, 1935, 49 Stat. 841, amended section 6 by substituting the words "thirty days" for "ninety days" in the third sentence and by adding the last sentence to the section. Sec. 7. (a) [Preference to States and municipalities.]—In issuing preliminary permits hereunder or licenses where no preliminary permit has been issued and in issuing licenses to new licensees under section 15 hereof, the Commission shall give preference to applications therefor by States and municipalities, provided the plans for the same are deemed by the Commission equally well adapted, or shall within a reasonable time to be fixed by the Commission be made equally well adapted, to conserve and utilize in the public interest the water resources of the region; and as between other applicants, the Commission may give preference to the applicant the plans of which it finds and determines are best adapted to develop, conserve, and utilize in the public interest the water resources of the region, if it be satisfied as to the ability of the applicant to carry out such plans. (b) [Recommendation for development by United States.]-Whenever, in the judgment of the Commission, the development of any water resources for public purposes should be undertaken by the United States itself, the Commission shall not approve any application for any project affecting such development, but shall cause to be made such examinations, surveys, reports, plans, and estimates of the cost of the proposed development as it may find necessary, and shall submit its findings to Congress with such recommendations as it may find appropriate concerning such development (41 Stat. 1067; § 205, Act of August 26, 1935, 49 Stat. 842; 16 U.S.C. § 800) EXPLANATORY NOTE 1935 Amendment. Section 205 of the Act of August 26, 1935, eliminated the words "navigation and" before the words "water resources" wherever they appeared in subsection (a) and lettered the paragraphs (a) and (b). Sec. 8. [Conditions for voluntary transfer of license-Exceptions.]-No voluntary transfer of any license, or of the rights thereunder granted, shall be made without the written approval of the Commission; and any successor or assign of the rights of such licensee, whether by voluntary transfer, judicial sale, foreclosure sale, or otherwise, shall be subject to all the conditions of the license under which such rights are held by such licensee and also subject to all the provisions and conditions of this Act to the same extent as though such successor |