---
kind: "section"
citation: "16 U.S.C. § 823d"
title: "16"
title_heading: "Conservation"
number: "823d"
heading: "Alternative conditions and prescriptions"
release: "119-102"
date: "2026-07-12"
url: "https://uscodex.org/usc/16/823d"
units:
  - "Chapter 12 — Federal Regulation and Development of Power"
  - "Subchapter I — Regulation of the Development of Water Power and Resources"
---

# §823d. Alternative conditions and prescriptions

- (a) **Alternative conditions—**
  - (1) Whenever any [person](/usc/16/796.md?p=4) applies for a license for any [project works](/usc/16/796.md?p=12) within any reservation of the United States, and the [Secretary](/usc/16/410r–5.md?p=c-1) of the department under whose supervision such reservation falls (referred to in this subsection as the “[Secretary](/usc/16/410r–5.md?p=c-1)”) deems a condition to such license to be necessary under the first proviso of [section 797(e) of this title](/usc/16/797.md?p=e), the license applicant or any other party to the license proceeding may propose an alternative condition.
  - (2) Notwithstanding the first proviso of [section 797(e) of this title](/usc/16/797.md?p=e), the [Secretary](/usc/16/410r–5.md?p=c-1) shall accept the proposed alternative condition referred to in [paragraph (1)](#a-1), and the [Commission](/usc/16/544.md?p=c) shall include in the license such alternative condition, if the [Secretary](/usc/16/410r–5.md?p=c-1) determines, based on substantial evidence provided by the license applicant, any other party to the proceeding, or otherwise available to the [Secretary](/usc/16/410r–5.md?p=c-1), that such alternative condition—
    - (A) provides for the adequate protection and utilization of the reservation; and
    - (B) will either, as compared to the condition initially by the [Secretary](/usc/16/410r–5.md?p=c-1)—
      - (i) cost significantly less to implement; or
      - (ii) result in improved operation of the [project works](/usc/16/796.md?p=12) for electricity production.
  - (3) In making a determination under [paragraph (2)](#a-2), the [Secretary](/usc/16/410r–5.md?p=c-1) shall consider evidence provided for the record by any party to a licensing proceeding, or otherwise available to the [Secretary](/usc/16/410r–5.md?p=c-1), including any evidence provided by the [Commission](/usc/16/544.md?p=c), on the implementation costs or operational impacts for electricity production of a proposed alternative.
  - (4) The [Secretary concerned](/usc/16/620e.md?p=8) shall submit into the public record of the [Commission](/usc/16/544.md?p=c) proceeding with any condition under [section 797(e) of this title](/usc/16/797.md?p=e) or alternative condition it accepts under this section, a written statement explaining the basis for such condition, and reason for not accepting any alternative condition under this section. The written statement must demonstrate that the [Secretary](/usc/16/410r–5.md?p=c-1) gave equal consideration to the effects of the condition adopted and alternatives not accepted on energy supply, distribution, cost, and use; flood control; navigation; water supply; and air quality (in [addition](/usc/16/410r–5.md?p=c-2) to the preservation of other aspects of environmental quality); based on such information as may be available to the [Secretary](/usc/16/410r–5.md?p=c-1), including information voluntarily provided in a timely manner by the applicant and others. The [Secretary](/usc/16/410r–5.md?p=c-1) shall also submit, together with the aforementioned written statement, all studies, data, and other factual information available to the [Secretary](/usc/16/410r–5.md?p=c-1) and relevant to the [Secretary](/usc/16/410r–5.md?p=c-1)’s decision.
  - (5) If the [Commission](/usc/16/544.md?p=c) finds that the [Secretary](/usc/16/410r–5.md?p=c-1)’s final condition would be inconsistent with the purposes of this subchapter, or other applicable law, the [Commission](/usc/16/544.md?p=c) may refer the dispute to the [Commission](/usc/16/544.md?p=c)’s Dispute Resolution Service. The Dispute Resolution Service shall consult with the [Secretary](/usc/16/410r–5.md?p=c-1) and the [Commission](/usc/16/544.md?p=c) and issue a non-binding advisory within 90 days. The [Secretary](/usc/16/410r–5.md?p=c-1) may accept the Dispute Resolution Service advisory unless the [Secretary](/usc/16/410r–5.md?p=c-1) finds that the recommendation will not adequately protect the reservation. The [Secretary](/usc/16/410r–5.md?p=c-1) shall submit the advisory and the [Secretary](/usc/16/410r–5.md?p=c-1)’s final written determination into the record of the [Commission](/usc/16/544.md?p=c)’s proceeding.
- (b) **Alternative prescriptions—**
  - (1) Whenever the [Secretary](/usc/16/410r–5.md?p=c-1) of the Interior or the [Secretary](/usc/16/410r–5.md?p=c-1) of Commerce prescribes a fishway under [section 811 of this title](/usc/16/811.md), the license applicant or any other party to the license proceeding may propose an alternative to such prescription to construct, maintain, or operate a fishway.
  - (2) Notwithstanding [section 811 of this title](/usc/16/811.md), the [Secretary](/usc/16/410r–5.md?p=c-1) of the Interior or the [Secretary](/usc/16/410r–5.md?p=c-1) of Commerce, as appropriate, shall accept and prescribe, and the [Commission](/usc/16/544.md?p=c) shall require, the proposed alternative referred to in [paragraph (1)](#b-1), if the [Secretary](/usc/16/410r–5.md?p=c-1) of the appropriate department determines, based on substantial evidence provided by the license applicant, any other party to the proceeding, or otherwise available to the [Secretary](/usc/16/410r–5.md?p=c-1), that such alternative—
    - (A) will be no less protective than the fishway initially prescribed by the [Secretary](/usc/16/410r–5.md?p=c-1); and
    - (B) will either, as compared to the fishway initially prescribed by the [Secretary](/usc/16/410r–5.md?p=c-1)—
      - (i) cost significantly less to implement; or
      - (ii) result in improved operation of the [project works](/usc/16/796.md?p=12) for electricity production.
  - (3) In making a determination under [paragraph (2)](#b-2), the [Secretary](/usc/16/410r–5.md?p=c-1) shall consider evidence provided for the record by any party to a licensing proceeding, or otherwise available to the [Secretary](/usc/16/410r–5.md?p=c-1), including any evidence provided by the [Commission](/usc/16/544.md?p=c), on the implementation costs or operational impacts for electricity production of a proposed alternative.
  - (4) The [Secretary concerned](/usc/16/620e.md?p=8) shall submit into the public record of the [Commission](/usc/16/544.md?p=c) proceeding with any prescription under [section 811 of this title](/usc/16/811.md) or alternative prescription it accepts under this section, a written statement explaining the basis for such prescription, and reason for not accepting any alternative prescription under this section. The written statement must demonstrate that the [Secretary](/usc/16/410r–5.md?p=c-1) gave equal consideration to the effects of the prescription adopted and alternatives not accepted on energy supply, distribution, cost, and use; flood control; navigation; water supply; and air quality (in [addition](/usc/16/410r–5.md?p=c-2) to the preservation of other aspects of environmental quality); based on such information as may be available to the [Secretary](/usc/16/410r–5.md?p=c-1), including information voluntarily provided in a timely manner by the applicant and others. The [Secretary](/usc/16/410r–5.md?p=c-1) shall also submit, together with the aforementioned written statement, all studies, data, and other factual information available to the [Secretary](/usc/16/410r–5.md?p=c-1) and relevant to the [Secretary](/usc/16/410r–5.md?p=c-1)’s decision.
  - (5) If the [Commission](/usc/16/544.md?p=c) finds that the [Secretary](/usc/16/410r–5.md?p=c-1)’s final prescription would be inconsistent with the purposes of this subchapter, or other applicable law, the [Commission](/usc/16/544.md?p=c) may refer the dispute to the [Commission](/usc/16/544.md?p=c)’s Dispute Resolution Service. The Dispute Resolution Service shall consult with the [Secretary](/usc/16/410r–5.md?p=c-1) and the [Commission](/usc/16/544.md?p=c) and issue a non-binding advisory within 90 days. The [Secretary](/usc/16/410r–5.md?p=c-1) may accept the Dispute Resolution Service advisory unless the [Secretary](/usc/16/410r–5.md?p=c-1) finds that the recommendation will not adequately protect the fish resources. The [Secretary](/usc/16/410r–5.md?p=c-1) shall submit the advisory and the [Secretary](/usc/16/410r–5.md?p=c-1)’s final written determination into the record of the [Commission](/usc/16/544.md?p=c)’s proceeding.

## Source credit

(June 10, 1920, ch. 285, pt. I, § 33, as added Pub. L. 109–58, title II, § 241(c), Aug. 8, 2005, 119 Stat. 675.)