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115th Congress } { Rept. 115-377
HOUSE OF REPRESENTATIVES
1st Session } { Part 1
======================================================================
HYDROPOWER POLICY MODERNIZATION ACT OF 2017
_______
October 31, 2017.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Walden, from the Committee on Energy and Commerce, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 3043]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 3043) to modernize hydropower policy, and for
other purposes, having considered the same, report favorably
thereon with an amendment and recommend that the bill as
amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 9
Background and Need for Legislation.............................. 9
Committee Action................................................. 13
Committee Votes.................................................. 13
Oversight Findings and Recommendations........................... 14
New Budget Authority, Entitlement Authority, and Tax Expenditures 14
Federal Mandates Statement....................................... 15
Statement of General Performance Goals and Objectives............ 15
Duplication of Federal Programs.................................. 15
Committee Cost Estimate.......................................... 15
Earmark, Limited Tax Benefits, and Limited Tariff Benefits....... 16
Disclosure of Directed Rule Makings.............................. 16
Advisory Committee Statement..................................... 16
Applicability to Legislative Branch.............................. 16
Section-by-Section Analysis of the Legislation................... 16
Changes in Existing Law Made by the Bill, as Reported............ 21
Dissenting Views................................................. 43
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Hydropower Policy Modernization Act of
2017''.
SEC. 2. HYDROPOWER REGULATORY IMPROVEMENTS.
(a) Sense of Congress on the Use of Hydropower Renewable Resources.--
It is the sense of Congress that--
(1) hydropower is a renewable resource for purposes of all
Federal programs and is an essential source of energy in the
United States; and
(2) the United States should increase substantially the
capacity and generation of clean, renewable hydropower that
would improve environmental quality in the United States.
(b) Modifying the Definition of Renewable Energy to Include
Hydropower.--Section 203 of the Energy Policy Act of 2005 (42 U.S.C.
15852) is amended--
(1) in subsection (a), by striking ``the following amounts''
and all that follows through paragraph (3) and inserting ``not
less than 15 percent in fiscal year 2017 and each fiscal year
thereafter shall be renewable energy.'' ; and
(2) in subsection (b), by striking paragraph (2) and
inserting the following:
``(2) Renewable energy.--The term `renewable energy' means
electric energy generated from solar, wind, biomass, landfill
gas, ocean (including tidal, wave, current, and thermal),
geothermal, or municipal solid waste, or from a hydropower
project.''.
(c) Preliminary Permits.--Section 5 of the Federal Power Act (16
U.S.C. 798) is amended--
(1) in subsection (a), by striking ``three'' and inserting
``4''; and
(2) by amending subsection (b) to read as follows:
``(b) The Commission may--
``(1) extend the period of a preliminary permit once for not
more than 4 additional years beyond the 4 years permitted by
subsection (a) if the Commission finds that the permittee has
carried out activities under such permit in good faith and with
reasonable diligence; and
``(2) if the period of a preliminary permit is extended under
paragraph (1), extend the period of such preliminary permit
once for not more than 4 additional years beyond the extension
period granted under paragraph (1), if the Commission
determines that there are extraordinary circumstances that
warrant such additional extension.''.
(d) 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,''.
(e) License Term.--Section 15(e) of the Federal Power Act (16 U.S.C.
808(e)) is amended--
(1) by striking ``(e) Except'' and inserting the following:
``(e) License Term on Relicensing.--
``(1) In general.--Except''; and
(2) by adding at the end the following:
``(2) Consideration.--In determining the term of a license
under paragraph (1), the Commission shall consider, among other
things, project-related investments to be made by the licensee
under a new license issued under this section, as well as
project-related investments made by a licencee over the term of
the existing license (including any terms under annual
licenses). In considering such investments, the Commission
shall give the same weight to--
``(A) investments to be made by the licensee to
implement a new license issued under this section,
including--
``(i) investments in redevelopment, new
construction, new capacity, efficiency,
modernization, rehabilitation, and safety
improvements; and
``(ii) investments in environmental,
recreation, and other protection, mitigation,
or enhancement measures that will be required
or authorized by the license; and
``(B) investments made by the licensee over the term
of the existing license (including any terms under
annual licenses), beyond those required by the existing
license when issued, that--
``(i) resulted in, during the term of the
existing license--
``(I) redevelopment, new
construction, new capacity, efficiency,
modernization, rehabilitation, or
safety improvements; or
``(II) environmental, recreation, or
other protection, mitigation, or
enhancement measures; and
``(ii) did not result in the extension of the
term of the existing license by the
Commission.''.
(f) Alternative Conditions and Prescriptions.--Section 33 of the
Federal Power Act (16 U.S.C. 823d) is amended--
(1) in subsection (a)--
(A) in paragraph (1), by striking ``deems'' and
inserting ``determines'';
(B) in paragraph (2)(B), in the matter preceding
clause (i), by inserting ``determined to be necessary''
before ``by the Secretary'';
(C) by striking paragraph (4); and
(D) by striking paragraph (5);
(2) in subsection (b)--
(A) by striking paragraph (4); and
(B) by striking paragraph (5); and
(3) by adding at the end the following:
``(c) Further Conditions.--This section applies to any further
conditions or prescriptions proposed or imposed pursuant to section
4(e), 6, or 18.''.
SEC. 3. HYDROPOWER LICENSING AND PROCESS IMPROVEMENTS.
(a) Hydropower Licensing and Process Improvements.--Part I of the
Federal Power Act (16 U.S.C. 792 et seq.) is amended by adding at the
end the following:
``SEC. 34. HYDROPOWER LICENSING AND PROCESS IMPROVEMENTS.
``(a) Definition.--In this section, the term `Federal
authorization'--
``(1) means any authorization required under Federal law with
respect to an application for a license under this part; and
``(2) includes any permits, special use authorizations,
certifications, opinions, or other approvals as may be required
under Federal law to approve or implement the license under
this part.
``(b) Designation as Lead Agency.--
``(1) In general.--The Commission shall act as the lead
agency for the purposes of coordinating all applicable Federal
authorizations and for the purposes of complying with the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.).
``(2) Other agencies and indian tribes.--
``(A) In general.--Each Federal, State, and local
government agency and Indian tribe considering an
aspect of an application for Federal authorization
shall coordinate with the Commission and comply with
the deadline established in the schedule developed for
the license under this part in accordance with the rule
issued by the Commission under subsection (c).
``(B) Identification.--The Commission shall identify,
as early as practicable after it is notified by the
applicant for a license under this part, any Federal or
State agency, local government, or Indian tribe that
may consider an aspect of an application for a Federal
authorization.
``(C) Notification.--
``(i) In general.--The Commission shall
notify any agency and Indian tribe identified
under subparagraph (B) of the opportunity to
participate in the process of reviewing an
aspect of an application for a Federal
authorization.
``(ii) Deadline.--Each agency and Indian
tribe receiving a notice under clause (i) shall
submit a response acknowledging receipt of the
notice to the Commission within 30 days of
receipt of such notice and request.
``(D) Issue identification and resolution.--
``(i) Identification of issues.--Federal,
State, and local government agencies and Indian
tribes that may consider an aspect of an
application for Federal authorization shall
identify, as early as possible, and share with
the Commission and the applicant, any issues of
concern identified during the pendency of the
Commission's action under this part relating to
any Federal authorization that may delay or
prevent the granting of such authorization,
including any issues that may prevent the
agency or Indian tribe from meeting the
schedule established for the license under this
part in accordance with the rule issued by the
Commission under subsection (c).
``(ii) Issue resolution.--The Commission may
forward any issue of concern identified under
clause (i) to the heads of the relevant State
and Federal agencies (including, in the case of
an issue of concern identified by a State or
local government agency or Indian tribe, the
Federal agency overseeing the delegated
authority, or the Secretary of the Interior
with regard to an issue of concern identified
by an Indian tribe, as applicable) for
resolution. If the Commission forwards an issue
of concern to the head of a relevant agency,
the Commission and the relevant agency shall
enter into a memorandum of understanding to
facilitate interagency coordination and
resolution of such issues of concern, as
appropriate.
``(c) Schedule.--
``(1) Commission rulemaking to establish process to set
schedule.--Not later than 180 days after the date of enactment
of this section the Commission shall, in consultation with the
appropriate Federal agencies, issue a rule, after providing for
notice and public comment, establishing a process for setting a
schedule following the filing of an application under this part
for a license for the review and disposition of each Federal
authorization.
``(2) Elements of scheduling rule.--In issuing a rule under
this subsection, the Commission shall ensure that the schedule
for each Federal authorization--
``(A) includes deadlines for actions by--
``(i) any Federal or State agency, local
government, or Indian tribe that may consider
an aspect of an application for the Federal
authorization;
``(ii) the applicant;
``(iii) the Commission; and
``(iv) other participants in any applicable
proceeding;
``(B) is developed in consultation with the applicant
and any agency and Indian tribe that submits a response
under subsection (b)(2)(C)(ii);
``(C) provides an opportunity for any Federal or
State agency, local government, or Indian tribe that
may consider an aspect of an application for the
applicable Federal authorization to identify and
resolve issues of concern, as provided in subsection
(b)(2)(D);
``(D) complies with applicable schedules established
under Federal and State law;
``(E) ensures expeditious completion of all
proceedings required under Federal and State law, to
the extent practicable; and
``(F) facilitates completion of Federal and State
agency studies, reviews, and any other procedures
required prior to, or concurrent with, the preparation
of the Commission's environmental document required
under the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.).
``(d) Transmission of Final Schedule.--
``(1) In general.--For each application for a license under
this part, the Commission shall establish a schedule in
accordance with the rule issued by the Commission under
subsection (c). The Commission shall publicly notice and
transmit the final schedule to the applicant and each agency
and Indian tribe identified under subsection (b)(2)(B).
``(2) Response.--Each agency and Indian tribe receiving a
schedule under this subsection shall acknowledge receipt of
such schedule in writing to the Commission within 30 days.
``(e) Adherence to Schedule.--All applicants, other licensing
participants, and agencies and Indian tribes considering an aspect of
an application for a Federal authorization shall meet the deadlines set
forth in the schedule established pursuant to subsection (d)(1).
``(f) Application Processing.--The Commission, Federal, State, and
local government agencies, and Indian tribes may allow an applicant
seeking a Federal authorization to fund a third-party contractor
selected by such an agency or tribe to assist in reviewing the
application. All costs of an agency or tribe incurred pursuant to
direct funding by the applicant, including all costs associated with
the third party contractor, shall not be considered costs of the United
States for the administration of this part under section 10(e).
``(g) Commission Recommendation on Scope of Environmental Review.--
For the purposes of coordinating Federal authorizations for each
license under this part, the Commission shall consult with and make a
recommendation to agencies and Indian tribes receiving a schedule under
subsection (d) on the scope of the environmental review for all Federal
authorizations for such license. Each Federal and State agency and
Indian tribe shall give due consideration and may give deference to the
Commission's recommendations, to the extent appropriate under Federal
law.
``(h) Extension of Deadline.--
``(1) Application.--A Federal, State, or local government
agency or Indian tribe that is unable to complete its
disposition of a Federal authorization by the deadline set
forth in the schedule established under subsection (d)(1)
shall, not later than 30 days prior to such deadline, file for
an extension with the Commission.
``(2) Extension.--The Commission shall only grant an
extension filed for under paragraph (1) if the agency or Indian
tribe demonstrates, based on the record maintained under
subsection (i), that complying with the schedule established
under subsection (d)(1) would prevent the agency or tribe from
complying with applicable Federal or State law. If the
Commission grants the extension, the Commission shall set a
reasonable schedule and deadline, that is not later than 90
days after the deadline set forth in the schedule established
under subsection (d)(1), for the agency or tribe to complete
its disposition of the Federal authorization.
``(i) Consolidated Record.--The Commission shall, with the
cooperation of Federal, State, and local government agencies and Indian
tribes, maintain a complete consolidated record of all decisions made
or actions taken by the Commission or by a Federal administrative
agency or officer (or State or local government agency or officer or
Indian tribe acting under delegated Federal authority) with respect to
any Federal authorization. Such record shall constitute the record for
judicial review under section 313(b).
``(j) Submission of License Recommendations, Conditions, and
Prescriptions.--
``(1) Submission of recommendations.--Any Federal or State
agency that is providing recommendations with respect to a
license proceeding under this part shall submit to the
Commission for inclusion in the consolidated record relating to
the license proceeding maintained under subsection (i)--
``(A) the recommendations;
``(B) the rationale for the recommendations; and
``(C) any supporting materials relating to the
recommendations.
``(2) Written statement.--In a case in which a Federal agency
is making a determination with respect to a covered measure (as
defined in section 35(a)), the head of the Federal agency shall
submit to the Commission for inclusion in the consolidated
record, in addition to the information required under paragraph
(1), a written statement demonstrating that the Federal agency
gave equal consideration to the effects of the covered measure
on--
``(A) energy supply, distribution, cost, and use;
``(B) flood control;
``(C) navigation;
``(D) water supply; and
``(E) air quality and the preservation of other
aspects of environmental quality.
``(3) Information from other agencies.--In preparing a
written statement under paragraph (2), the head of a Federal
agency may make use of information produced or made available
by other agencies with relevant expertise in the factors
described in subparagraphs (A) through (E) of that paragraph.
``(k) Delegation.--A Secretary may delegate the authority to
determine a condition to be necessary under section 4(e), or to
prescribe a fishway under section 18, to an officer of the applicable
department based, in part, on the ability of the officer to evaluate
the broad effects of such condition or prescription on--
``(1) the applicable project; and
``(2) the factors described in subparagraphs (A) through (E)
of subsection (j)(2).
``(l) No Effect on Other Laws.--Nothing in this section shall be
construed to affect any requirement of the Federal Water Pollution
Control Act, the Fish and Wildlife Coordination Act, the Endangered
Species Act of 1973, section 14 of the Act of March 3, 1899 (commonly
known as the Rivers and Harbors Appropriation Act of 1899), and those
provisions in subtitle III of title 54, United States Code commonly
known as the National Historic Preservation Act, with respect to an
application for a license under this part.
``SEC. 35. TRIAL-TYPE HEARINGS.
``(a) Definition of Covered Measure.--In this section, the term
`covered measure' means--
``(1) a condition determined to be necessary under section
4(e), including an alternative condition proposed under section
33(a);
``(2) fishways prescribed under section 18, including an
alternative prescription proposed under section 33(b); or
``(3) any action by the Secretary to exercise reserved
authority under the license to prescribe, submit, or revise any
condition to a license under the first proviso of section 4(e)
or fishway prescribed under section 18.
``(b) Authorization of Trial-type Hearing.--An applicant for a
license under this part (including an applicant for a license under
section 15) and any party to a license proceeding shall be entitled to
a determination on the record, after opportunity for a trial-type
hearing of not more than 120 days, on any disputed issues of material
fact with respect to an applicable covered measure.
``(c) Deadline for Request.--A request for a trial-type hearing under
this section shall be submitted not later than 60 days after the date
on which, as applicable--
``(1) the Secretary determines the condition to be necessary
under section 4(e) or prescribes the fishway under section 18;
or
``(2) the Secretary exercises reserved authority under the
license to prescribe, submit, or revise any condition to a
license under the first proviso of section 4(e) or fishway
prescribed under section 18, as appropriate.
``(d) No Requirement to Exhaust.--By electing not to request a trial-
type hearing under subsection (c), a license applicant and any other
party to a license proceeding shall not be considered to have waived
the right of the applicant or other party to raise any issue of fact or
law in a non-trial-type proceeding, but no issue may be raised for the
first time on rehearing or judicial review of the license decision of
the Commission.
``(e) Administrative Law Judge.--
``(1) In general.--All disputed issues of material fact
raised by a party in a request for a trial-type hearing
submitted under subsection (c) shall be determined in a single
trial-type hearing to be conducted by an Administrative Law
Judge within the Office of Administrative Law Judges and
Dispute Resolution of the Commission, in accordance with the
Commission rules of practice and procedure under part 385 of
title 18, Code of Federal Regulations (or successor
regulations), and within the timeframe established by the
Commission for each license proceeding (including a proceeding
for a license under section 15) under section 34(d).
``(2) Requirement.--The trial-type hearing shall include the
opportunity--
``(A) to undertake discovery; and
``(B) to cross-examine witnesses, as applicable.
``(f) Stay.--The Administrative Law Judge may impose a stay of a
trial-type hearing under this section for a period of not more than 120
days to facilitate settlement negotiations relating to resolving the
disputed issues of material fact with respect to the covered measure.
``(g) Decision of the Administrative Law Judge.--
``(1) Contents.--The decision of the Administrative Law Judge
shall contain--
``(A) findings of fact on all disputed issues of
material fact;
``(B) conclusions of law necessary to make the
findings of fact, including rulings on materiality and
the admissibility of evidence; and
``(C) reasons for the findings and conclusions.
``(2) Limitation.--The decision of the Administrative Law
Judge shall not contain conclusions as to whether--
``(A) any condition or prescription should be
adopted, modified, or rejected; or
``(B) any alternative condition or prescription
should be adopted, modified, or rejected.
``(3) Finality.--A decision of an Administrative Law Judge
under this section with respect to a disputed issue of material
fact shall not be subject to further administrative review.
``(4) Service.--The Administrative Law Judge shall serve the
decision on each party to the hearing and forward the complete
record of the hearing to the Commission and the Secretary that
proposed the original condition or prescription.
``(h) Secretarial Determination.--
``(1) In general.--Not later than 60 days after the date on
which the Administrative Law Judge issues the decision under
subsection (g) and in accordance with any applicable schedule
established by the Commission under section 34(d), the
Secretary proposing a covered measure shall file with the
Commission a final determination to adopt, modify, or withdraw
any condition or prescription that was the subject of a hearing
under this section, based on the decision of the Administrative
Law Judge.
``(2) Record of determination.--The final determination of
the Secretary filed with the Commission shall identify the
reasons for the decision and any considerations taken into
account that were not part of, or were inconsistent with, the
findings of the Administrative Law Judge and shall be included
in the consolidated record maintained under section 34(i).
``(i) Resolution of Matters.--Notwithstanding sections 4(e) and 18,
if the Commission finds that a final determination under (h)(1) of the
Secretary is inconsistent with the purposes of this part or other
applicable law, the Commission may enter into a memorandum of
understanding with the Secretary to facilitate interagency coordination
and resolve the matter.
``(j) Judicial Review.--The decision of the Administrative Law Judge
and the record of determination of the Secretary shall be included in
the record of the applicable licensing proceeding and subject to
judicial review of the final licensing decision of the Commission under
section 313(b).
``SEC. 36. LICENSING STUDY IMPROVEMENTS.
``(a) In General.--To facilitate the timely and efficient completion
of the license proceedings under this part, the Commission shall, in
consultation with applicable Federal and State agencies and interested
members of the public--
``(1) compile current and accepted best practices in
performing studies required in such license proceedings,
including methodologies and the design of studies to assess the
full range of environmental impacts of a project that reflect
the most recent peer-reviewed science;
``(2) compile a comprehensive collection of studies and data
accessible to the public that could be used to inform license
proceedings under this part; and
``(3) encourage license applicants, agencies, and Indian
tribes to develop and use, for the purpose of fostering timely
and efficient consideration of license applications, a limited
number of open-source methodologies and tools applicable across
a wide array of projects, including water balance models and
streamflow analyses.
``(b) Use of Studies.--To the extent practicable, the Commission and
other Federal, State, and local government agencies and Indian tribes
considering an aspect of an application for Federal authorization (as
defined in section 34) shall use studies and data based on current,
accepted science in support of their actions. Any participant in a
proceeding with respect to such a Federal authorization shall
demonstrate that a study requested by the participant is not
duplicative of current, existing studies that are applicable to the
project.
``(c) Intra-watershed Review.--The Commission shall establish a
program to develop comprehensive plans, at the request of project
applicants, on a watershed-wide scale, in consultation with the
applicants, appropriate Federal agencies, and affected States, local
governments, and Indian tribes, in watersheds with respect to which
there are more than one application for a project. Upon such a request,
the Commission, in consultation with the applicants, such Federal
agencies, and affected States, local governments, and Indian tribes,
may conduct or commission watershed-wide environmental studies, with
the participation of at least 2 applicants. Any study conducted under
this subsection shall apply only to a project with respect to which the
applicants participate.
``SEC. 37. LICENSE AMENDMENT IMPROVEMENTS.
``(a) Qualifying Project Upgrades.--
``(1) In general.--As provided in this section, the
Commission may approve an application under this section for an
amendment to a license issued under this part for a qualifying
project upgrade.
``(2) Application.--A licensee filing an application for an
amendment to a project license, for which the licensee is
seeking approval as a qualified project upgrade under this
section, shall include in such application information
sufficient to demonstrate that the proposed change to the
project described in the application is a qualifying project
upgrade.
``(3) Notice and initial determination on qualification.--Not
later than 30 days after receipt of an application under
paragraph (2), the Commission, in consultation with other
Federal agencies, States, and Indian tribes the Commission
determines appropriate, shall publish in the Federal Register a
notice containing--
``(A) notice of the application filed under paragraph
(2);
``(B) an initial determination as to whether the
proposed change to the project described in the
application for a license amendment is a qualifying
project upgrade; and
``(C) a request for public comment on the application
and the initial determination.
``(4) Public comment and consultation.--The Commission shall,
for a period of 45 days beginning on the date of publication of
a notice under paragraph (3)--
``(A) accept public comment regarding the application
and whether the proposed license amendment is for a
qualifying project upgrade; and
``(B) consult with each Federal, State, and local
government agency and Indian tribe considering an
aspect of an application for any authorization required
under Federal law with respect to the proposed license
amendment, as well as other interested agencies and
Indian tribes.
``(5) Final determination on qualification.--Not later than
15 days after the end of the public comment and consultation
period under paragraph (4), the Commission shall publish in the
Federal Register a final determination as to whether the
proposed license amendment is for a qualifying project upgrade.
``(6) Federal authorizations.--In establishing the schedule
for a proposed license amendment for a qualifying project
upgrade, the Commission shall require final disposition of all
authorizations required under Federal law with respect to an
application for such license amendment, other than final action
by the Commission, by not later than 120 days after the date on
which the Commission publishes a final determination under
paragraph (5) that the proposed license amendment is for a
qualifying project upgrade.
``(7) Commission action.--Not later than 150 days after the
date on which the Commission publishes a final determination
under paragraph (5) that a proposed license amendment is for a
qualifying project upgrade, the Commission shall take final
action on the license amendment application.
``(8) License amendment conditions.--Any condition or
prescription included in or applicable to a license amendment
for a qualifying project upgrade approved under this
subsection, including any condition, prescription, or other
requirement of a Federal authorization, shall be limited to
those that are--
``(A) necessary to protect public safety; or
``(B) reasonable, economically feasible, and
essential to prevent loss of or damage to, or to
mitigate adverse effects on, fish and wildlife
resources, water supply, and water quality that are
directly caused by the construction and operation of
the qualifying project upgrade, as compared to the
environmental baseline existing at the time the
Commission approves the application for the license
amendment.
``(9) Rulemaking.--Not later than 180 days after the date of
enactment of this section, the Commission shall, after notice
and opportunity for public comment, issue a rule to implement
this subsection.
``(10) Definitions.--For purposes of this subsection:
``(A) Qualifying project upgrade.--The term
`qualifying project upgrade' means a change to a
project licensed under this part that meets the
qualifying criteria, as determined by the Commission.
``(B) Qualifying criteria.--The term `qualifying
criteria' means, with respect to a project licensed
under this part, a change to the project that--
``(i) if carried out, would be unlikely to
adversely affect any species listed as
threatened or endangered under the Endangered
Species Act of 1973 or result in the
destruction or adverse modification of critical
habitat, as determined in consultation with the
Secretary of the Interior or Secretary of
Commerce, as appropriate, in accordance with
section 7 of the Endangered Species Act of
1973;
``(ii) is consistent with any applicable
comprehensive plan under section 10(a)(2);
``(iii) includes only changes to project
lands, waters, or operations that, in the
judgment of the Commission, would result in
only insignificant or minimal cumulative
adverse environmental effects;
``(iv) would be unlikely to adversely affect
water quality or water supply; and
``(v) proposes to implement--
``(I) capacity increases, efficiency
improvements, or other enhancements to
hydropower generation at the licensed
project;
``(II) environmental protection,
mitigation, or enhancement measures to
benefit fish and wildlife resources or
other natural and cultural resources;
or
``(III) improvements to public
recreation at the licensed project.
``(b) Amendment Approval Processes.--
``(1) Rule.--Not later than 1 year after the date of
enactment of this section, the Commission shall, after notice
and opportunity for public comment, issue a rule establishing
new standards and procedures for license amendment applications
under this part. In issuing such rule, the Commission shall
seek to develop the most efficient and expedient process,
consultation, and review requirements, commensurate with the
scope of different categories of proposed license amendments.
Such rule shall account for differences in environmental
effects across a wide range of categories of license amendment
applications.
``(2) Capacity.--In issuing a rule under this subsection, the
Commission shall take into consideration that a change in
generating or hydraulic capacity may indicate the potential
environmental effects of a proposed license amendment but is
not determinative of such effects.
``(3) Process options.--In issuing a rule under this
subsection, the Commission shall take into consideration the
range of process options available under the Commission's
regulations for license applications and adapt such options to
amendment applications, where appropriate.''.
SEC. 4. TECHNICAL AND CONFORMING AMENDMENTS.
(a) Licenses.--Section 4(e) of the Federal Power Act (16 U.S.C.
797(e)) is amended--
(1) by striking ``adequate protection and utilization of such
reservation'' and all that follows through ``That no license
affecting the navigable capacity'' and inserting ``adequate
protection and utilization of such reservation: Provided
further, That no license affecting the navigable capacity'';
and
(2) by striking ``deem'' and inserting ``determine''.
(b) Operation of Navigation Facilities.--Section 18 of the Federal
Power Act (16 U.S.C. 811) is amended by striking the second, third, and
fourth sentences.
Purpose and Summary
H.R. 3043, Hydropower Policy Modernization Act of 2017, was
introduced by Representative McMorris Rodgers (R-WA) on June
23, 2017. H.R. 3043 would modernize the regulatory permitting
process and encourage the expansion of hydropower generation by
improving administrative efficiency, accountability, and
transparency; promoting new hydropower infrastructure;
requiring balanced, timely decision making; and reducing
duplicative oversight.
Background and Need for Legislation
Hydropower is an essential component of an ``all of the
above'' energy strategy for the United States. In 2015,
hydropower accounted for about 6 percent of total U.S.
electricity generation and 46 percent of electricity generation
from renewables.\1\ There is tremendous opportunity to expand
hydropower production. Less than 3 percent of the dams in the
U.S.--approximately 2,200 dams--produce electricity. A recent
report by the Department of Energy (DOE) found that U.S.
hydropower production could grow by almost 50 percent from
current levels by 2050 from a combination of upgrading existing
hydropower facilities, adding generation capacity to existing
non-powered dams and canals, and developing new hydropower
facilities.\2\ The benefits of hydropower to the nation's
economy and energy security are numerous. The hydropower
industry employs a workforce of about 143,000, which, combined
with the affordable electricity produced by hydropower
projects, brings multiple economic benefits to the communities
in which they are located and those that they serve.\3\
Hydropower also contributes to flexible and reliable operations
of the electric grid with energy, capacity, and ancillary
services such as baseload power, peaking generation, load-
following, energy storage, and black-start capability.
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\1\U.S. Energy Information Administration, Hydropower Explained.
\2\U.S. Department of Energy, Hydropower Vision (2016). DOE found
that U.S. hydropower could grow from 101 gigawatts (GW) of combined
generating and storage capacity to nearly 150 GW by 2050, with more
than 50 percent of this growth realized by 2030.
\3\Testimony of Mr. Jeffrey Leahey, Deputy Executive Director,
National Hydropower Association, before the Subcommittee on Energy, May
3, 2017.
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The Federal Energy Regulatory Commission (FERC) exercises
jurisdiction over non-Federal hydropower projects. FERC is
authorized under Part I of the Federal Power Act (FPA) to
review applications for the construction of hydropower projects
and oversee their operation and safety. Licensing new
hydropower facilities and relicensing existing facilities
requires extensive consultation with multiple Federal, State,
and local government entities to balance a wide range of
issues, including potential impacts on environmental and
wildlife resources, recreation, aesthetics, cultural resources,
and land use. FERC regulates over 1,600 non-Federal hydropower
projects at over 2,500 dams, which together represents about 56
gigawatts of hydropower capacity, more than half of all the
hydropower capacity in the United States. Under the FPA, non-
Federal hydropower projects must be licensed by FERC if they
are located on a navigable waterway; occupy Federal land; use
surplus water from a Federal dam; or are located on non-
navigable waters over which Congress has jurisdiction under the
Commerce Clause, involve post-1935 construction, and affect
interstate or foreign commerce.
The FPA authorizes FERC to issue licenses for projects
within its jurisdiction, and exemptions for projects that would
be located at existing dams or within conduits that meet
specific qualifying criteria. Licenses are generally issued for
terms of between 30 and 50 years, and are renewable. Exemptions
are perpetual, and thus do not need to be reviewed. According
to FERC, Commission staff currently has a full workload
processing original license, relicense, and exemption
applications, as well as its compliance and dam safety work.
The relicensing workload, in particular, has started to
increase and will continue to remain high well into the 2030s.
Between FY 2017 and FY 2030, about 480 older projects, which
represent approximately 45 percent of FERC licensed projects,
will begin the relicensing process. Currently, FERC is
processing about 4,999 licensing and exemption-related filings
per year, which will substantially increase commensurate with
the increased relicensing workload.\4\
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\4\Testimony of Mr. John Katz, Deputy Associate General Counsel,
Office of the General Counsel, Federal Energy Regulatory Commission,
before the Subcommittee on Energy, May 3, 2007.
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The Committee on Energy and Commerce has examined the role
of Federal agencies, States, and Tribes in the Federal
hydropower licensing process. Testimony before the Committee
has shown that the duration, complexity, and regulatory
uncertainty of the licensing process creates significant
challenges and has the potential to delay or prevent
investments that would expand hydropower production.\5\
Upgrading the performance of existing dams and utilizing
current non-powered dams, canals, and conduits would enable
investments, which would address aging dams and improve overall
safety.\6\ The licensing process for a new hydropower
development project can last over a decade and costs tens of
millions of dollars, while natural gas-fired generating
capacity can be approved in considerably less time. Testimony
on behalf of the National Hydropower Association before the
Subcommittee on Energy stated:
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\5\See e.g. hearings entitled ``Modernizing Energy Infrastructure:
Challenges and Opportunities to Expanding Hydropower Generation'' held
on March 15, 2017; and ``Legislation Addressing Pipeline and Hydropower
Infrastructure Modernization'' held on May 3, 2017.
\6\Testimony of the American Society of Civil Engineers before the
Subcommittee on Energy, March 15, 2017.
While there is some variability with regard to size
and location, the regulatory approval processes for
simple cycle turbine or combined cycle plants are
generally 1-2 years--even in urban areas like New York
City. The FERC licensing process for hydro plants is
generally 8 years or more, including both licensing and
pre-filing activities. With regard to licensing costs,
a combined cycle plant is approximately $1 to $2
million; whereas, some studies alone can cost multiples
of that figure for a hydropower project. It is not
uncommon for a hydropower license applicant to spend
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$10 million or more on just the licensing process.
While FERC serves as the lead agency to coordinate
hydropower reviews and convene stakeholders to participate in
collaborative, transparent public proceedings, FERC lacks
authority to improve the hydropower licensing process by
helping to resolve disputes among agencies and enforce
scheduling deadlines. Testimony on behalf of FERC before the
Subcommittee on Energy stated that ``in many instances, it is
applicants, Federal and State agencies, and other stakeholders
that determine project success, and control whether the
regulatory process is short or long, simple or complex.''\7\
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\7\Testimony of Mr. John Katz, Deputy Associate General Counsel,
Office of the General Counsel, Federal Energy Regulatory Commission,
before the Subcommittee on Energy, May 3, 2017.
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In response to questions for the Subcommittee's hearing
record, FERC reported 26 separate cases where the Commission
has finished its environmental review and is currently waiting
for an action to be completed by another agency before FERC can
issue a decision on the project (Table 1).\8\ These situations
fall into two categories: (1) waiting for either the National
Marine Fisheries Service or U.S. Fish and Wildlife Service to
complete consultation under section 7(a) of the Endangered
Species Act and/or; (2) waiting for a State water quality
agency to issue water quality certification under section 401
of the Clean Water Act. In some instances, applications have
been stalled for more than a decade due to an agency's failure
to act.
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\8\Response to Questions for the Record, Testimony of Mr. John
Katz, Deputy Associate General Counsel, Office of the General Counsel,
Federal Energy Regulatory Commission, before the Subcommittee on
Energy, May 3, 2017.
The Committee has identified ways to modernize the
permitting process and encourage the expansion of hydropower
generation by improving administrative efficiency,
accountability and transparency; promoting new hydropower
infrastructure; requiring balanced, timely decision making, and
reducing duplicative oversight. H.R. 3043 brings certainty and
timeliness to the licensing process by enhancing consultation
with Federal, State, and local agencies and Indian tribes with
applicable Federal authorization responsibilities, and
requiring FERC to establish a process for setting a schedule
for the review and disposition of each Federal authorization.
H.R. 3043 streamlines and improves procedures to identify
scheduling issues, proposing conditions and prescriptions,
resolving disputes, and conducting trial-type hearings
regarding mandatory conditions and fishway prescriptions under
FPA sections 4(e) and 18, respectively. H.R. 3043 also contains
provisions to expedite the approval process for an amendment to
a license for qualifying hydropower project upgrade.
Committee Action
On May 3, 2017, the Subcommittee on Energy held a hearing
on a discussion draft entitled ``Hydropower Policy
Modernization Act of 2017.'' The Subcommittee received
testimony from:
Terry Turpin, Director, Office of Energy
Projects, Federal Energy Regulatory Commission;
John Katz, Deputy Associate General Counsel,
Office of the General Counsel, Federal Energy
Regulatory Commission;
Jeffrey Leahey, Deputy Executive Director,
National Hydropower Association;
Donald Santa, President and CEO, Interstate
Natural Gas Association of America;
Andy Black, President and CEO, Association
of Oil Pipe Lines;
Jeffrey Soth, Legislative and Political
Director, International Union of Operating Engineers;
Bob Irvin, President and CEO, American
Rivers; and
Jennifer Danis, Senior Staff Attorney,
Eastern Environmental Law Center.
On June 22, 2017, the Subcommittee on Energy met in open
markup session and forwarded the discussion draft, Hydropower
Policy Modernization Act of 2017, without amendment, to the
full Committee by a voice vote. The discussion draft was
substantially similar to H.R. 3043. On June 28, 2017, the full
Committee on Energy and Commerce met in open markup session and
ordered H.R. 3043, as amended, favorably reported to the House
by a voice vote.
Committee Votes
Clause 3(b) of rule XIII requires the Committee to list the
record votes on the motion to report legislation and amendments
thereto. There were no record votes taken in connection with
ordering H.R. 3043 reported.
Oversight Findings and Recommendations
Pursuant to clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII, the Committee held a hearing and made findings that
are reflected in this report.
New Budget Authority, Entitlement Authority, and Tax Expenditures
Pursuant to clause 3(c)(3) of rule XIII, the following is
the cost estimate provided by the Congressional Budget Office
pursuant to section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 21, 2017.
Hon. Greg Walden,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3043, the
Hydropower Policy Modernization Act of 2017.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Megan
Carroll.
Sincerely,
Mark P. Hadley
(For Keith Hall, Director).
Enclosure.
H.R. 3043--Hydropower Policy Modernization Act of 2017
The Federal Energy Regulatory Commission (FERC) regulates
nonfederal hydropower projects. Under the Federal Power Act the
agency reviews and approves licenses to construct and operate
such facilities in consultation with a variety of federal,
state, and local entities with regulatory responsibilities
across a broad range of issues.
H.R. 3043 would specify a variety of timeframes and
procedures for FERC and other affected agencies to follow in
carrying out regulatory functions related to nonfederal
hydropower projects. Based on information from FERC and other
affected federal agencies, CBO estimates that implementing the
bill would have no significant net effect on the federal
budget. The bill would not significantly affect the scope of
federal agencies' regulatory responsibilities, though CBO
expects that meeting the timeframes specified in the bill might
require additional funding, particularly for FERC. However,
because FERC recovers 100 percent of its costs through fees,
any change in that agency's costs (which are controlled through
annual appropriation acts) would be offset by an equal change
in fees that the commission charges, resulting in no net change
in federal spending.
Enacting H.R. 3043 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply. CBO
estimates that enacting H.R. 3043 would not increase net direct
spending or on-budget deficits in any of the four consecutive
10-year periods beginning in 2028.
H.R. 3043 would impose intergovernmental and private-sector
mandates, as defined in the Unfunded Mandates Reform Act
(UMRA). If FERC increases fees to offset the costs of
implementing the bill, the cost of an existing mandate to pay
those fees would increase for public and private entities.
Based on information from FERC about the potential costs of
implementing the bill, CBO estimates that any incremental
change in fees collected would be small. The bill would impose
another mandate on state, local, and tribal agencies by
requiring them to respond to FERC and acknowledge receipt of an
invitation to participate in the review of a federal
authorization for a hydropower project. Based on information
from FERC, CBO estimates that the cost of the notification
mandate would be small. In total, CBO estimates that the cost
of complying with all mandates in the bill would fall below the
annual thresholds established in UMRA for intergovernmental and
private-sector mandates ($78 million and $156 million in 2017,
respectively, adjusted annually for inflation).
The CBO staff contacts for this estimate are Megan Carroll
(for federal costs), Jon Sperl (for intergovernmental
mandates), and Amy Petz (for private-sector mandates). The
estimate was approved by H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Statement of General Performance Goals and Objectives
Pursuant to clause 3(c)(4) of rule XIII, the general
performance goal or objective of this legislation is to
modernize the regulatory permitting process and encourage the
expansion of hydropower generation by improving administrative
efficiency, accountability, and transparency; promoting new
hydropower infrastructure; requiring balanced, timely decision
making; and reducing duplicative oversight.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of rule XIII, no provision of
H.R. 3043 is known to be duplicative of another Federal
program, including any program that was included in a report to
Congress pursuant to section 21 of Public Law 111-139 or the
most recent Catalog of Federal Domestic Assistance.
Committee Cost Estimate
Pursuant to clause 3(d)(1) of rule XIII, the Committee
adopts as its own the cost estimate prepared by the Director of
the Congressional Budget Office pursuant to section 402 of the
Congressional Budget Act of 1974.
Earmark, Limited Tax Benefits, and Limited Tariff Benefits
Pursuant to clause 9(e), 9(f), and 9(g) of rule XXI, [the
Committee finds that H.R. 3043 contains no earmarks, limited
tax benefits, or limited tariff benefits.
Disclosure of Directed Rule Makings
Pursuant to section 3(i) of H.Res. 5, the following
directed rule makings are contained in H.R. 3043:
Section 3 provides that ``[n]ot later than 180
days after the date of enactment of this section the Commission
shall, in consultation with the appropriate Federal agencies,
issue a rule, after providing for notice and public comment,
establishing a process for setting a schedule following the
filing of an application . . . for a license for the review and
disposition of each Federal authorization.''
Section 3 provides that ``[n]ot later than 180
days after the date of enactment of this section, the
Commission shall, after notice and opportunity for public
comment, issue a rule to implement [new section 37(a),
regarding Qualifying Project Upgrades].
Section 3 provides that ``[n]ot later than 1 year
after the date of enactment of . . . section [27. License
Amendment Improvements], the Commission shall, after notice and
opportunity for public comment, issue a rule establishing new
standards and procedures for license amendment applications . .
. .''
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 1. Short title
This section provides that the Act may be cited as the
``Hydropower Policy Modernization Act of 2017.''
Section 2. Hydropower regulatory improvements
Section 2(a) expresses the sense of the Congress that
hydropower is a renewable resource for purposes of all Federal
programs; hydropower is an essential source of energy in the
United States; and that the United States should increase
substantially the capacity and generation of clean, renewable
hydropower that would improve environmental quality in the
United States.
Section 2(b) amends section 203 of the Energy Policy Act of
2005 to include hydropower in the definition of ``renewable
energy.''
Section 2(c) amends section 5 of the Federal Power Act
(FPA) by extending preliminary permit time periods to 4 years
and by allowing the Commission to extend the period of a
preliminary permit once for an additional 4 years. In the event
of extraordinary circumstances, the Commission may extend the
preliminary permit for an additional 4 years beyond the
extension described in paragraph 2(c)(1).
Section 2(d) amends section 13 of the FPA to allow the
Commission to extend the period for the commencement of
construction by up to 8 years.
Section 2(e) amends section 15(e) of the FPA to allow the
Commission to consider, among other things, project-related
investments to be made by the licensee under a new license, as
well as project-related investments made by a licensee over the
term of the existing license. To ensure that all of the
licensee's project-related investments are treated equally when
considering the license term length, this section requires the
Commission to give the ``same weight'' to these pre-licensing
and post-relicensing project-related investments.
The Committee is aware that the Commission recently issued
a notice of inquiry and invited public comment on what changes,
if any, the Commission should make to its existing policies for
establishing the length of license terms for non-federal
hydropower projects subject to the jurisdiction of the FPA.\9\
Among the several opportunities identified is the possibility
of the Commission establishing a ``default'' term of 50-years.
Because a 50-year term is the maximum allowed under the FPA,
any decision by the Commission to establish a default 50-year
license term would necessarily account for both pre- and post-
relicensing project investments to the fullest extent allowable
under the FPA, and therefore meet the requirements of Section
2(e) of this bill in an administratively efficient manner.
Moreover, the evaluation of both pre- and post-relicensing
project investments required under Section 2(e) will assist the
Commission in making the public interest determination required
under Section 15(a) of the FPA, as well as in its environmental
review.
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\9\See Establishing the Length of License Terms for Hydroelectric
Projects, 81 Fed. Reg. 85218 (Nov. 25, 2016).
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Section 2(f) amends FPA section 33 to require the Secretary
to make a determination regarding alternate conditions and
prescriptions. This section also strikes paragraphs 4 and 5 to
conform with new FPA Section 34(j).
Section 3. Hydropower Licensing and Process Improvements
Section 3(a) amends Part I of the FPA by adding at the end
the following: ``Section 34. Hydropower Licensing and Process
Improvements''; ``Section 35. Trial-Type Hearings''; ``Section
36. Licensing Study Improvements''; and, ``Section 37. License
Amendment Improvements.''
FPA section 34(a) provides a definition for the term
``Federal authorization.''
FPA section 34(b) directs the Commission to act as the lead
agency for the purposes of coordinating all applicable Federal
authorizations and for purposes of complying with the National
Environmental Policy Act of 1969. It instructs agencies and
Indian tribes considering an aspect of an application for
Federal authorization to coordinate with the Commission and to
comply with the Commission-established schedule. The Commission
shall identify, as early as practicable, any Federal or State
agency, local government, or Indian tribe that may consider an
aspect of an application for a Federal authorization. The
Commission shall notify any agency and Indian tribe of the
opportunity to participate in the process of reviewing an
aspect of an application for a Federal authorization. Each
agency and Indian tribe receiving a notice from the Commission
shall submit a response acknowledging receipt within 30 days of
receipt of such notice. Section 34(b) also sets forth
provisions directing Federal, State, and local government
agencies and Indian tribes to identify and resolve any issues
of concern as early as possible that may delay or prevent the
granting of a Federal authorization.
FPA section 34(c) directs the Commission to issue a rule,
after providing for notice and public comment, establishing a
process for setting a schedule following the filing of an
application under Part I of the FPA. The Commission shall
ensure that the schedule for each Federal authorization
includes deadlines for actions, is developed in consultation
with the applicant and any agency and Indian tribe, and
complies with applicable schedules established under Federal
and State law.
FPA section 34(d) instructs the Commission to publically
notice and transmit the final schedule to the applicant and
each identified agency and Indian tribe. Each agency and Indian
tribe receiving a schedule under this subsection shall
acknowledge receipt of such schedule in writing to the
Commission within 30 days.
FPA section 34(e) requires all applicants, other licensing
participants, and agencies and Indian tribes considering an
aspect of an application for a Federal authorization to meet
the deadlines set forth in the Commission's schedule.
FPA section 34(f) sets forth that the Commission, Federal,
State, and local government agencies, and Indian tribes may
allow an applicant seeking a Federal authorization to fund a
third-party contractor to assist in reviewing the application.
FPA section 34(g) instructs the Commission to consult with
and make a recommendation to agencies and Indian tribes
receiving a schedule on the scope of the environmental review
for the Federal authorization.
FPA section 34(h) requires a Federal, State, or local
government agency or Indian tribe that is unable to complete
its disposition of a Federal authorization by the deadline set
forth in the established schedule to file for an extension with
the Commission not later than 30 days prior to such deadline.
The Commission shall only grant an extension if the agency or
Indian tribe demonstrates that complying with the schedule
would prevent the agency or Indian tribe from complying with
applicable Federal or State law.
FPA section 34(i) directs the Commission to maintain a
complete consolidated record of all decisions made or actions
taken by the Commission, a Federal administrative agency or
officer, State or local government agency, and Indian tribe
with respect to any Federal authorization. Such record shall
constitute the record for judicial review under FPA section
313(b).
FPA section 34(j) directs any Federal or State agency that
is providing recommendations with respect to a license
proceeding to submit their recommendations, the rationale for
the recommendations, and supporting materials to the Commission
for inclusion in the consolidated record. This section also
specifies that, in a case where a Federal agency is making a
determination with respect to a covered measure, the head of
the Federal agency shall submit to the Commission for inclusion
in the consolidated record a written statement demonstrating
that the Federal agency gave equal consideration to the effects
of the covered measure.
FPA section 34(k) specifies that a Secretary may delegate
the authority to determine a condition to be necessary under
section 4(e), or to prescribe a fishway under section 18, to an
officer of the applicable department based, in part, on the
ability of the officer to evaluate the broad effects of such
condition or prescription on the applicable project, energy
supply, distribution, cost, use, flood control, navigation,
water supply, air quality, and other aspects of environmental
quality.
FPA section 34(l) clarifies that nothing in this section
shall be construed to affect any requirement of the Federal
Water Pollution Control Act, the Fish and Wildlife Coordination
Act, the Endangered Species Act of 1973, the Rivers and Harbors
Appropriation Act of 1899, and the National Historic
Preservation Act, with respect to an application for a license
under this act.
FPA section 35(a) provides a definition for the terms used
in the section.
FPA section 35(b) directs that an applicant for a license
and any party to a license proceeding shall be entitled to a
determination on the record, after opportunity for a trial-type
hearing of not more than 120 days, on any disputed issues of
material fact with respect to an applicable covered measure.
FPA section 35(c) requires a request for a trial-type
hearing to be submitted within 60 days after the date the
Secretary determines the condition to be necessary under
section 4(e) or prescribes the fishway under section 18, or the
date the Secretary exercises reserved authority under the
license to prescribe, submit, or revise any condition to a
license under section 4(e) or section 18.
FPA section 35(d) specifies that a license applicant or any
other party to a license proceeding shall not be considered to
have waived the right to raise any issue of fact or law in a
non-trial type proceeding when they elect not to request a
trial-type hearing under subsection (c). No issue may be raised
for the first time on rehearing or judicial review of the
license decision of the Commission.
FPA section 35(e) directs that all disputed issues of
material fact raised by a party in request for a trial type
hearing shall be determined in a single trial-type hearing
conducted by an Administrative Law Judge (ALJ) in accordance
with the Commission rules of practice and procedure under part
385 of title 18, Code of Federal Regulations, and within the
timeframe established by the Commission. The trial-type hearing
shall include the opportunity to undertake discovery and to
cross-examine witnesses as applicable.
FPA section 35(f) specifies that the ALJ may impose a stay
of a trial-type hearing for a period of not more than 120 days
to facilitate settlement negotiations.
FPA section 35(g) directs that the decision of the ALJ
shall contain findings of fact on all disputed issues of
material fact, conclusions of law necessary to make the
findings of fact, including rulings on materiality and the
admissibility of evidence, and reasons for the findings and
conclusions. The decision of the ALJ shall not contain
conclusions as to whether any condition or prescription should
be adopted, modified, or rejected, or any alternative condition
or prescription should be adopted, modified, or rejected. A
decision of an ALJ under this section shall not be subject to
further administrative review.
FPA section 35(h) requires the Secretary proposing a
covered measure to file with the Commission a final
determination to adopt, modify, or withdraw any condition or
prescription within 60 days after the date the ALJ issues the
decision. The final determination of the Secretary filed with
the Commission shall identify the reasons for the decision and
any considerations taken into account that were not part of, or
were inconsistent with, the findings of the ALJ and shall be
included in the consolidated record.
FPA section 35(i) allows for the Commission to enter into a
memorandum of understanding with the Secretary to facilitate
interagency coordination to resolve issues if the Commission
finds that a final determination of the Secretary is
inconsistent with the purposes of this part or other applicable
law.
FPA section 35(j) provides that the decision of the ALJ and
the record of determination of the Secretary shall be included
in the record of the applicable licensing proceeding and
subject to judicial review of the final licensing decision of
the Commission under FPA section 313(b).
FPA section 36(a) directs the Commission, in consultation
with applicable Federal and State agencies and interested
members of the public, to compile current and accepted best
practices in performing studies required in license
proceedings, compile a comprehensive collection of studies and
data accessible to the public that could be used to inform
license proceedings, and encourage license applicants,
agencies, and Indian tribes to develop and use a limited number
of open-source methodologies and tools applicable across a wide
array of projects.
FPA section 36(b) instructs the Commission and other
Federal, State, and local government agencies and Indian tribes
to use studies and data based on current, accepted science in
support of their actions. Any participant in a proceeding shall
demonstrate that a study requested is not duplicative of
current, existing studies that are applicable to the project.
FPA section 36(c) directs the Commission to establish a
program to develop comprehensive plans, at the request of
project applicants, on a watershed-wide scale, in consultation
with applicants, appropriate Federal agencies, affected States,
local governments, and Indian tribes, in basins or regions
where there are more than one application for a project.
FPA section 37(a) specifies that the Commission may approve
an application for an amendment to a license issued for a
qualifying project upgrade. An application for an amendment to
a project license shall include information sufficient to
demonstrate that the proposed change to the project is a
qualifying project upgrade. Not later than 30 days after
receipt of an application, the Commission, in consultation with
other Federal agencies, States, and Indian tribes the
Commission determines appropriate, shall publish a notice in
the Federal Register. The Commission shall, for a period of 45
days beginning on the date of publication of a notice, consult
with each Federal, State, and local government agency and
Indian tribe considering an aspect of an application for any
authorization, and shall accept public comment regarding the
application and whether the proposed license amendment is for a
qualifying project upgrade. Not later than 15 days after the
end of the public comment and consultation period, the
Commission shall publish in the Federal Register a final
determination as to whether the proposed license amendment is
for a qualifying project upgrade. In establishing the schedule
for a proposed license amendment for a qualifying project
upgrade, the Commission shall require final disposition of all
Federal authorization, other than final action by the
Commission, by no later than 120 days after the date on which
the Commission publishes a final determination that the
proposed license amendment is for a qualifying project upgrade.
Not later than 150 days after the Commission publishes a
final determination that a proposed license amendment is for a
qualifying project upgrade, the Commission shall take final
action on the license amendment application. Any condition or
prescription included in or applicable to a license amendment
for an approved qualifying project upgrade shall be limited to
those that are necessary to protect public safety, or are
reasonable, economically feasible, and essential to prevent
loss of or damage to, or to mitigate adverse effects on, fish
and wildlife resources, water supply, and water quality that
are directly caused by the construction and operation of the
qualifying project upgrade. Not later than 180 days after the
date of enactment of this section, the Commission shall issue a
rule, after providing for notice and public comment, to
implement this subsection. A qualifying project upgrade must
meet the qualifying criteria specified under this section.
FPA section 37(b) directs the Commission to issue a rule,
after providing for notice and public comment, establishing new
standards and procedures for license amendment applications
within 1 year after the date of enactment of this section. In
issuing a rule, the Commission shall take into consideration
that a change in generating or hydraulic capacity may indicate
the potential environmental effects of a proposed license
amendment but is not determinative of such effects.
Section 4. Technical and conforming amendments
Section 4 specifies technical and conforming amendments to
section 4(e) and section 18 of the FPA.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
ENERGY POLICY ACT OF 2005
* * * * * * *
TITLE II--RENEWABLE ENERGY
Subtitle A--General Provisions
* * * * * * *
SEC. 203. FEDERAL PURCHASE REQUIREMENT.
(a) Requirement.--The President, acting through the
Secretary, shall seek to ensure that, to the extent
economically feasible and technically practicable, of the total
amount of electric energy the Federal Government consumes
during any fiscal year, [the following amounts shall be
renewable energy:
[(1) Not less than 3 percent in fiscal years 2007
through 2009.
[(2) Not less than 5 percent in fiscal years 2010
through 2012.
[(3) Not less than 7.5 percent in fiscal year 2013
and each fiscal year thereafter.] not less than 15
percent in fiscal year 2017 and each fiscal year
thereafter shall be renewable energy.
(b) Definitions.--In this section:
(1) Biomass.--The term ``biomass'' means any lignin
waste material that is segregated from other waste
materials and is determined to be nonhazardous by the
Administrator of the Environmental Protection Agency
and any solid, nonhazardous, cellulosic material that
is derived from--
(A) any of the following forest-related
resources: mill residues, precommercial
thinnings, slash, and brush, or nonmerchantable
material;
(B) solid wood waste materials, including
waste pallets, crates, dunnage, manufacturing
and construction wood wastes (other than
pressure-treated, chemically-treated, or
painted wood wastes), and landscape or right-
of-way tree trimmings, but not including
municipal solid waste (garbage), gas derived
from the biodegradation of solid waste, or
paper that is commonly recycled;
(C) agriculture wastes, including orchard
tree crops, vineyard, grain, legumes, sugar,
and other crop by-products or residues, and
livestock waste nutrients; or
(D) a plant that is grown exclusively as a
fuel for the production of electricity.
[(2) Renewable energy.--The term ``renewable energy''
means electric energy generated from solar, wind,
biomass, landfill gas, ocean (including tidal, wave,
current, and thermal), geothermal, municipal solid
waste, or new hydroelectric generation capacity
achieved from increased efficiency or additions of new
capacity at an existing hydroelectric project.]
(2) Renewable energy.--The term ``renewable energy''
means electric energy generated from solar, wind,
biomass, landfill gas, ocean (including tidal, wave,
current, and thermal), geothermal, or municipal solid
waste, or from a hydropower project.
(c) Calculation.--For purposes of determining compliance with
the requirement of this section, the amount of renewable energy
shall be doubled if--
(1) the renewable energy is produced and used on-site
at a Federal facility;
(2) the renewable energy is produced on Federal lands
and used at a Federal facility; or
(3) the renewable energy is produced on Indian land
as defined in title XXVI of the Energy Policy Act of
1992 (25 U.S.C. 3501 et seq.) and used at a Federal
facility.
(d) Report.--Not later than April 15, 2007, and every 2 years
thereafter, the Secretary shall provide a report to Congress on
the progress of the Federal Government in meeting the goals
established by this section.
* * * * * * *
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FEDERAL POWER ACT
PART I
* * * * * * *
Sec. 4. The Commission is hereby authorized and empowered--
(a) 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 cost, 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) 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) 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) 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 parties thereto, the terms prescribed, and the moneys
received if any, on account thereof.
(e) 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] determine
necessary for the [adequate protection and utilization of such
reservation: Provided further, That no license affecting the
navigable capacity] adequate protection and utilization of such
reservation: 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 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. In deciding whether to issue any
license under this Part for any project, the Commission, in
addition to the power and development purposes for which
licenses are issued, shall give equal consideration to the
purposes of energy conservation, the protection, mitigation of
damage to, and enhancement of, fish and wildlife (including
related spawning grounds and habitat), the protection of
recreational opportunities, and the preservation of other
aspects of environmental quality.
(f) 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 county or counties in which the project or any
part thereof or the lands affected thereby are situated.
(g) 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.
Sec. 5. (a) 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] 4 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.
[(b) The Commission may extend the period of a preliminary
permit once for not more than 2 additional years beyond the 3
years permitted by subsection (a) if the Commission finds that
the permittee has carried out activities under such permit in
good faith and with reasonable diligence.]
(b) The Commission may--
(1) extend the period of a preliminary permit once
for not more than 4 additional years beyond the 4 years
permitted by subsection (a) if the Commission finds
that the permittee has carried out activities under
such permit in good faith and with reasonable
diligence; and
(2) if the period of a preliminary permit is extended
under paragraph (1), extend the period of such
preliminary permit once for not more than 4 additional
years beyond the extension period granted under
paragraph (1), if the Commission determines that there
are extraordinary circumstances that warrant such
additional extension.
(c) Each such permit shall set forth the conditions under
which priority shall be maintained.
(d) 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.
* * * * * * *
Sec. 13. That the licensee shall commence the construction of
the project works within the time fixed in the license, which
shall not be more than two years from the date thereof, shall
thereafter in good faith and with due diligence prosecute such
construction, and shall within the time fixed in the license
complete and put into operation such part of the ultimate
development as the Commission shall deem necessary to supply
the reasonable needs of the then available market, and shall
from time to time thereafter construct such portion of the
balance of such development as the Commission may direct, so as
to supply adequately the reasonable market demands until such
development shall have been completed. The periods for the
commencement of construction may be extended [once but not
longer than two additional years] for not more than 8
additional years, and the period for the completion of
construction carried on in good faith and with reasonable
diligence may be extended by the Commission when not
incompatible with the public interests. 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 commission, then, after due
notice given, the license shall, as to such project works or
part thereof, be terminated upon written order of the
Commission. In case the construction of the project works, or
of any specified part thereof, have been begun but not
completed within the time prescribed in the license, or as
extended by the commission, then the Attorney General, upon the
request of the Commission, shall institute proceedings in
equity in the district court of the United States for the
district in which any part of the project is situated for the
revocation of said license, the sale of the works constructed,
and such other equitable relief as the case may demand, as
provided for in section 26 hereof.
* * * * * * *
Sec. 15. (a)(1) That if the United States does not, at the
expiration of the existing license, exercise its right to take
over, maintain, and operate any project or projects of the
licensee, as provided in section 14 hereof, the commission is
authorized to issue a new license to the existing licensee upon
such terms and conditions as may be authorized or required
under the then existing laws and regulations, or to issue a new
license under said terms and conditions to a new licensee,
which license may cover any project or projects covered by the
existing license, and shall be issued on the condition that the
new licensee shall, before taking possession of such project or
projects, pay such amount, and assume such contracts as the
United States is required to do, in the manner specified in
Section 14 hereof: Provided, That in the event the United
States does not exercise the right to take over or does not
issue a license to a new licensee, or issue a new license to
the existing licensee, upon reasonable terms, then the
commission shall issue from year to year an annual license to
the then licensee under the terms and conditions of the
existing license until the property is taken over or a new
license is issued as aforesaid.
(2) Any new license issued under this section shall be issued
to the applicant having the final proposal which the Commission
determines is best adapted to serve the public interest, except
that in making this determination the Commission shall ensure
that insignificant differences with regard to subparagraphs (A)
through (G) of this paragraph between competing applications
are not determinative and shall not result in the transfer of a
project. In making a determination under this section (whether
or not more than one application is submitted for the project),
the Commission shall, in addition to the requirements of
section 10 of this Part, consider (and explain such
consideration in writing) each of the following:
(A) The plans and abilities of the applicant to
comply with (i) the articles, terms, and conditions of
any license issued to it and (ii) other applicable
provisions of this Part.
(B) The plans of the applicant to manage, operate,
and maintain the project safely.
(C) The plans and abilities of the applicant to
operate and maintain the project in a manner most
likely to provide efficient and reliable electric
service.
(D) The need of the applicant over the short and long
term for the electricity generated by the project or
projects to serve its customers, including, among other
relevant considerations, the reasonable costs and
reasonable availability of alternative sources of
power, taking into consideration conservation and other
relevant factors and taking into consideration the
effect on the provider (including its customers) of the
alternative source of power, the effect on the
applicant's operating and load characteristics, the
effect on communities served or to be served by the
project, and in the case of an applicant using power
for the applicant's own industrial facility and related
operations, the effect on the operation and efficiency
of such facility or related operations, its workers,
and the related community. In the case of an applicant
that is an Indian tribe applying for a license for a
project located on the tribal reservation, a statement
of the need of such tribe for electricity generated by
the project to foster the purposes of the reservation
may be included.
(E) The existing and planned transmission services of
the applicant, taking into consideration system
reliability, costs, and other applicable economic and
technical factors.
(F) Whether the plans of the applicant will be
achieved, to the greatest extent possible, in a cost
effective manner.
(G) Such other factors as the Commission may deem
relevant, except that the terms and conditions in the
license for the protection, mitigation, or enhancement
of fish and wildlife resources affected by the
development, operation, and management of the project
shall be determined in accordance with section 10, and
the plans of an applicant concerning fish and wildlife
shall not be subject to a comparative evaluation under
this subsection.
(3) In the case of an application by the existing licensee,
the Commission shall also take into consideration each of the
following:
(A) The existing licensee's record of compliance with
the terms and conditions of the existing license.
(B) The actions taken by the existing licensee
related to the project which affect the public.
(b)(1) Each existing licensee shall notify the Commission
whether the licensee intends to file an application for a new
license or not. Such notice shall be submitted at least 5 years
before the expiration of the existing license.
(2) At the time notice is provided under paragraph (1), the
existing licensee shall make each of the following reasonably
available to the public for inspection at the offices of such
licensee: current maps, drawings, data, and such other
information as the Commission shall, by rule, require regarding
the construction and operation of the license project. Such
information shall include, to the greatest extent practicable
pertinent energy conservation, recreation, fish and wildlife,
and other environmental information. Copies of the information
shall be made available at reasonable costs of reproduction.
Within 180 days after the enactment of the Electric Consumers
Protection Act of 1986, the Commission shall promulgate
regulations regarding the information to be provided under this
paragraph.
(3) Promptly following receipt of notice under paragraph (1),
the Commission shall provide public notice of whether an
existing licensee intends to file or not to file an application
for a new license. The Commission shall also promptly notify
the National Marine Fisheries Service and the United States
Fish and Wildlife Service, and the appropriate State fish and
wildlife agencies.
(4) The Commission shall require the applicant to identify
any Federal or Indian lands included in the project boundary,
together with a statement of the annual fees paid as required
by this Part for such lands, and to provide such additional
information as the Commission deems appropriate to carry out
the Commission's responsibilities under this section.
(c)(1) Each application for a new license pursuant to this
section shall be filed with the Commission at least 24 months
before the expiration of the term of the existing license. Each
applicant shall consult with the fish and wildlife agencies
referred to in subsection (b) and, as appropriate, conduct
studies with such agencies. Within 60 days after the statutory
deadline for the submission of applications, the Commission
shall issue a notice establishing expeditious procedures for
relicensing and a deadline for submission of final amendments,
if any, to the application.
(2) The time periods specified in this subsection and in
subsection (b) shall be adjusted, in a manner that achieves the
objectives of this section, by the Commission by rule or order
with respect to existing licensees who, by reason of the
expiration dates of their licenses, are unable to comply with a
specified time period.
(d)(1) In evaluating applications for new licenses pursuant
to this section, the Commission shall not consider whether an
applicant has adequate transmission facilities with regard to
the project.
(2) When the Commission issues a new license (pursuant to
this section) to an applicant which is not the existing
licensee of the project and finds that it is not feasible for
the new licensee to utilize the energy from such project
without provision by the existing licensee of reasonable
services, including transmission services, the Commission shall
give notice to the existing licensee and the new licensee to
immediately enter into negotiations for such services and the
costs demonstrated by the existing licensee as being related to
the provision of such services. It is the intent of the
Congress that such negotiations be carried out in good faith
and that a timely agreement be reached between the parties in
order to facilitate the transfer of the license by the date
established when the Commission issued the new license. If such
parties do not notify the Commission that within the time
established by the Commission in such notice (and if
appropriate, in the judgment of the Commission, one 45-day
extension thereof), a mutually satisfactory arrangement for
such services that is consistent with the provisions of this
Act has been executed, the Commission shall order the existing
licensee to file (pursuant to section 205 of this Act) with the
Commission a tariff, subject to refund, ensuring such services
beginning on the date of transfer of the project and including
just and reasonable rates and reasonable terms and conditions.
After notice and opportunity for a hearing, the Commission
shall issue a final order adopting or modifying such tariff for
such services at just and reasonable rates in accordance with
section 205 of this Act and in accordance with reasonable terms
and conditions. The Commission, in issuing such order, shall
ensure the services necessary for the full and efficient
utilization and benefits for the license term of the electric
energy from the project by the new licensee in accordance with
the license and this Part, except that in issuing such order
the Commission--
(A) shall not compel the existing licensee to enlarge
generating facilities, transmit electric energy other
than to the distribution system (providing service to
customers) of the new licensee identified as of the
date one day preceding the date of license award, or
require the acquisition of new facilities, including
the upgrading of existing facilities other than any
reasonable enhancement or improvement of existing
facilities controlled by the existing licensee
(including any acquisition related to such enhancement
or improvement) necessary to carry out the purposes of
this paragraph;
(B) shall not adversely affect the continuity and
reliability of service to the customers of the existing
licensee;
(C) shall not adversely affect the operational
integrity of the transmission and electric systems of
the existing licensee;
(D) shall not cause any reasonably quantifiable
increase in the jurisdictional rates of the existing
licensee; and
(E) shall not order any entity other than the
existing licensee to provide transmission or other
services.
Such order shall be for such period as the Commission deems
appropriate, not to exceed the term of the license. At any
time, the Commission, upon its own motion or upon a petition by
the existing or new licensee and after notice and opportunity
for a hearing, may modify, extend, or terminate such order.
[(e)] [Except] (e) License Term on Relicensing._
(1) In general._Except for an annual license, any
license issued by the Commission under this section
shall be for a term which the Commission determines to
be in the public interest but not less than 30 years,
nor more than 50 years, from the date on which the
license is issued.
(2) Consideration.--In determining the term of a
license under paragraph (1), the Commission shall
consider, among other things, project-related
investments to be made by the licensee under a new
license issued under this section, as well as project-
related investments made by a licencee over the term of
the existing license (including any terms under annual
licenses). In considering such investments, the
Commission shall give the same weight to--
(A) investments to be made by the licensee to
implement a new license issued under this
section, including--
(i) investments in redevelopment, new
construction, new capacity, efficiency,
modernization, rehabilitation, and
safety improvements; and
(ii) investments in environmental,
recreation, and other protection,
mitigation, or enhancement measures
that will be required or authorized by
the license; and
(B) investments made by the licensee over the
term of the existing license (including any
terms under annual licenses), beyond those
required by the existing license when issued,
that--
(i) resulted in, during the term of
the existing license--
(I) redevelopment, new
construction, new capacity,
efficiency, modernization,
rehabilitation, or safety
improvements; or
(II) environmental,
recreation, or other
protection, mitigation, or
enhancement measures; and
(ii) did not result in the extension
of the term of the existing license by
the Commission.
(f) In issuing any license under this section except an
annual license, the Commission, on its own motion or upon
application of any licensee, person, State, municipality, or
State commission, after notice to each State commission and
licensee affected, and after opportunity for hearing, whenever
it finds that in conformity with a comprehensive plan for
improving or developing a waterway or waterways for beneficial
public uses all or part of any licensed project should no
longer be used or adapted for use for power purposes, may
license all or part of the project works for nonpower use. A
license for nonpower use shall be issued to a new licensee only
on the condition that the new licensee shall, before taking
possession of the facilities encompassed thereunder, pay such
amount and assume such contracts as the United States is
required to do, in the manner specified in section 14 hereof.
Any license for nonpower use shall be a temporary license.
Whenever, in the judgment of the Commission, a State,
municipality, interstate agency, or another Federal agency is
authorized and willing to assume regulatory supervision of the
lands and facilities included under the nonpower license and
does so, the Commission shall thereupon terminate the license.
Consistent with the provisions of the Act of August 15, 1953
(67 Stat. 587; 16 U.S.C. 828-828c), every licensee for nonpower
use shall keep such accounts and file such annual and other
periodic or special reports concerning the removal, alteration,
nonpower use, or other disposition of any project works or
parts thereof covered by the nonpower use license as the
Commission may by rules and regulations or order prescribe as
necessary or appropriate.
* * * * * * *
Sec. 18. The Commission shall require the construction,
maintenance, and operation by a licensee at its own expense of
such lights and signals as may be directed by the Secretary of
the Department in which the Coast Guard is operating, and such
fishways as may be prescribed by the Secretary of Commerce.
[The license applicant and any party to the proceeding shall be
entitled to a determination on the record, after opportunity
for an agency trial-type hearing of no more than 90 days, on
any disputed issues of material fact with respect to such
fishways. All disputed issues of material fact raised by any
party shall be determined in a single trial-type hearing to be
conducted by the relevant resource agency in accordance with
the regulations promulgated under this subsection and within
the time frame established by the Commission for each license
proceeding. Within 90 days of the date of enactment of the
Energy Policy Act of 2005, the Secretaries of the Interior,
Commerce, and Agriculture shall establish jointly, by rule, the
procedures for such expedited trial-type hearing, including the
opportunity to undertake discovery and cross-examine witnesses,
in consultation with the Federal Energy Regulatory Commission.]
The operation of any navigation facilities which may be
constructed as a part of or in connection with any dam or
diversion structure built under the provisions of this Act,
whether at the expense of a licensee hereunder or of the United
States, shall at all times be controlled by such reasonable
rules and regulations in the interest of navigation, including
the control of the level of the pool caused by such dam or
diversion structure as may be made from time to time by the
Secretary of the Army, and for willful failure to comply with
any such rule or regulation such licensee shall be deemed
guilty of a misdemeanor, and upon conviction thereof shall be
punished as provided in section 316 hereof.
* * * * * * *
SEC. 33. ALTERNATIVE CONDITIONS AND PRESCRIPTIONS.
(a) Alternative Conditions.--(1) Whenever any person applies
for a license for any project works within any reservation of
the United States, and the Secretary of the department under
whose supervision such reservation falls (referred to in this
subsection as the ``Secretary'') [deems] determines a condition
to such license to be necessary under the first proviso of
section 4(e), the license applicant or any other party to the
license proceeding may propose an alternative condition.
(2) Notwithstanding the first proviso of section 4(e), the
Secretary shall accept the proposed alternative condition
referred to in paragraph (1), and the Commission shall include
in the license such alternative condition, if the Secretary
determines, based on substantial evidence provided by the
license applicant, any other party to the proceeding, or
otherwise available to the Secretary, 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 determined to be necessary by the Secretary--
(i) cost significantly less to implement; or
(ii) result in improved operation of the
project works for electricity production.
(3) In making a determination under paragraph (2), the
Secretary shall consider evidence provided for the record by
any party to a licensing proceeding, or otherwise available to
the Secretary, including any evidence provided by the
Commission, on the implementation costs or operational impacts
for electricity production of a proposed alternative.
[(4) The Secretary concerned shall submit into the public
record of the Commission proceeding with any condition under
section 4(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 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 to the
preservation of other aspects of environmental quality); based
on such information as may be available to the Secretary,
including information voluntarily provided in a timely manner
by the applicant and others. The Secretary shall also submit,
together with the aforementioned written statement, all
studies, data, and other factual information available to the
Secretary and relevant to the Secretary's decision.
[(5) If the Commission finds that the Secretary's final
condition would be inconsistent with the purposes of this part,
or other applicable law, the Commission may refer the dispute
to the Commission's Dispute Resolution Service. The Dispute
Resolution Service shall consult with the Secretary and the
Commission and issue a non-binding advisory within 90 days. The
Secretary may accept the Dispute Resolution Service advisory
unless the Secretary finds that the recommendation will not
adequately protect the reservation. The Secretary shall submit
the advisory and the Secretary's final written determination
into the record of the Commission's proceeding.]
(b) Alternative Prescriptions.--(1) Whenever the Secretary of
the Interior or the Secretary of Commerce prescribes a fishway
under section 18, 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 18, the Secretary of the Interior
or the Secretary of Commerce, as appropriate, shall accept and
prescribe, and the Commission shall require, the proposed
alternative referred to in paragraph (1), if the Secretary 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, that
such alternative--
(A) will be no less protective than the fishway
initially prescribed by the Secretary; and
(B) will either, as compared to the fishway initially
prescribed by the Secretary--
(i) cost significantly less to implement; or
(ii) result in improved operation of the
project works for electricity production.
(3) In making a determination under paragraph (2), the
Secretary shall consider evidence provided for the record by
any party to a licensing proceeding, or otherwise available to
the Secretary, including any evidence provided by the
Commission, on the implementation costs or operational impacts
for electricity production of a proposed alternative.
[(4) The Secretary concerned shall submit into the public
record of the Commission proceeding with any prescription under
section 18 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 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
to the preservation of other aspects of environmental quality);
based on such information as may be available to the Secretary,
including information voluntarily provided in a timely manner
by the applicant and others. The Secretary shall also submit,
together with the aforementioned written statement, all
studies, data, and other factual information available to the
Secretary and relevant to the Secretary's decision.
[(5) If the Commission finds that the Secretary's final
prescription would be inconsistent with the purposes of this
part, or other applicable law, the Commission may refer the
dispute to the Commission's Dispute Resolution Service. The
Dispute Resolution Service shall consult with the Secretary and
the Commission and issue a non-binding advisory within 90 days.
The Secretary may accept the Dispute Resolution Service
advisory unless the Secretary finds that the recommendation
will not adequately protect the fish resources. The Secretary
shall submit the advisory and the Secretary's final written
determination into the record of the Commission's proceeding.]
(c) Further Conditions.--This section applies to any further
conditions or prescriptions proposed or imposed pursuant to
section 4(e), 6, or 18.
SEC. 34. HYDROPOWER LICENSING AND PROCESS IMPROVEMENTS.
(a) Definition.--In this section, the term ``Federal
authorization''--
(1) means any authorization required under Federal
law with respect to an application for a license under
this part; and
(2) includes any permits, special use authorizations,
certifications, opinions, or other approvals as may be
required under Federal law to approve or implement the
license under this part.
(b) Designation as Lead Agency.--
(1) In general.--The Commission shall act as the lead
agency for the purposes of coordinating all applicable
Federal authorizations and for the purposes of
complying with the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.).
(2) Other agencies and indian tribes.--
(A) In general.--Each Federal, State, and
local government agency and Indian tribe
considering an aspect of an application for
Federal authorization shall coordinate with the
Commission and comply with the deadline
established in the schedule developed for the
license under this part in accordance with the
rule issued by the Commission under subsection
(c).
(B) Identification.--The Commission shall
identify, as early as practicable after it is
notified by the applicant for a license under
this part, any Federal or State agency, local
government, or Indian tribe that may consider
an aspect of an application for a Federal
authorization.
(C) Notification.--
(i) In general.--The Commission shall
notify any agency and Indian tribe
identified under subparagraph (B) of
the opportunity to participate in the
process of reviewing an aspect of an
application for a Federal
authorization.
(ii) Deadline.--Each agency and
Indian tribe receiving a notice under
clause (i) shall submit a response
acknowledging receipt of the notice to
the Commission within 30 days of
receipt of such notice and request.
(D) Issue identification and resolution.--
(i) Identification of issues.--
Federal, State, and local government
agencies and Indian tribes that may
consider an aspect of an application
for Federal authorization shall
identify, as early as possible, and
share with the Commission and the
applicant, any issues of concern
identified during the pendency of the
Commission's action under this part
relating to any Federal authorization
that may delay or prevent the granting
of such authorization, including any
issues that may prevent the agency or
Indian tribe from meeting the schedule
established for the license under this
part in accordance with the rule issued
by the Commission under subsection (c).
(ii) Issue resolution.--The
Commission may forward any issue of
concern identified under clause (i) to
the heads of the relevant State and
Federal agencies (including, in the
case of an issue of concern identified
by a State or local government agency
or Indian tribe, the Federal agency
overseeing the delegated authority, or
the Secretary of the Interior with
regard to an issue of concern
identified by an Indian tribe, as
applicable) for resolution. If the
Commission forwards an issue of concern
to the head of a relevant agency, the
Commission and the relevant agency
shall enter into a memorandum of
understanding to facilitate interagency
coordination and resolution of such
issues of concern, as appropriate.
(c) Schedule.--
(1) Commission rulemaking to establish process to set
schedule.--Not later than 180 days after the date of
enactment of this section the Commission shall, in
consultation with the appropriate Federal agencies,
issue a rule, after providing for notice and public
comment, establishing a process for setting a schedule
following the filing of an application under this part
for a license for the review and disposition of each
Federal authorization.
(2) Elements of scheduling rule.--In issuing a rule
under this subsection, the Commission shall ensure that
the schedule for each Federal authorization--
(A) includes deadlines for actions by--
(i) any Federal or State agency,
local government, or Indian tribe that
may consider an aspect of an
application for the Federal
authorization;
(ii) the applicant;
(iii) the Commission; and
(iv) other participants in any
applicable proceeding;
(B) is developed in consultation with the
applicant and any agency and Indian tribe that
submits a response under subsection
(b)(2)(C)(ii);
(C) provides an opportunity for any Federal
or State agency, local government, or Indian
tribe that may consider an aspect of an
application for the applicable Federal
authorization to identify and resolve issues of
concern, as provided in subsection (b)(2)(D);
(D) complies with applicable schedules
established under Federal and State law;
(E) ensures expeditious completion of all
proceedings required under Federal and State
law, to the extent practicable; and
(F) facilitates completion of Federal and
State agency studies, reviews, and any other
procedures required prior to, or concurrent
with, the preparation of the Commission's
environmental document required under the
National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.).
(d) Transmission of Final Schedule.--
(1) In general.--For each application for a license
under this part, the Commission shall establish a
schedule in accordance with the rule issued by the
Commission under subsection (c). The Commission shall
publicly notice and transmit the final schedule to the
applicant and each agency and Indian tribe identified
under subsection (b)(2)(B).
(2) Response.--Each agency and Indian tribe receiving
a schedule under this subsection shall acknowledge
receipt of such schedule in writing to the Commission
within 30 days.
(e) Adherence to Schedule.--All applicants, other licensing
participants, and agencies and Indian tribes considering an
aspect of an application for a Federal authorization shall meet
the deadlines set forth in the schedule established pursuant to
subsection (d)(1).
(f) Application Processing.--The Commission, Federal, State,
and local government agencies, and Indian tribes may allow an
applicant seeking a Federal authorization to fund a third-party
contractor selected by such an agency or tribe to assist in
reviewing the application. All costs of an agency or tribe
incurred pursuant to direct funding by the applicant, including
all costs associated with the third party contractor, shall not
be considered costs of the United States for the administration
of this part under section 10(e).
(g) Commission Recommendation on Scope of Environmental
Review.--For the purposes of coordinating Federal
authorizations for each license under this part, the Commission
shall consult with and make a recommendation to agencies and
Indian tribes receiving a schedule under subsection (d) on the
scope of the environmental review for all Federal
authorizations for such license. Each Federal and State agency
and Indian tribe shall give due consideration and may give
deference to the Commission's recommendations, to the extent
appropriate under Federal law.
(h) Extension of Deadline.--
(1) Application.--A Federal, State, or local
government agency or Indian tribe that is unable to
complete its disposition of a Federal authorization by
the deadline set forth in the schedule established
under subsection (d)(1) shall, not later than 30 days
prior to such deadline, file for an extension with the
Commission.
(2) Extension.--The Commission shall only grant an
extension filed for under paragraph (1) if the agency
or Indian tribe demonstrates, based on the record
maintained under subsection (i), that complying with
the schedule established under subsection (d)(1) would
prevent the agency or tribe from complying with
applicable Federal or State law. If the Commission
grants the extension, the Commission shall set a
reasonable schedule and deadline, that is not later
than 90 days after the deadline set forth in the
schedule established under subsection (d)(1), for the
agency or tribe to complete its disposition of the
Federal authorization.
(i) Consolidated Record.--The Commission shall, with the
cooperation of Federal, State, and local government agencies
and Indian tribes, maintain a complete consolidated record of
all decisions made or actions taken by the Commission or by a
Federal administrative agency or officer (or State or local
government agency or officer or Indian tribe acting under
delegated Federal authority) with respect to any Federal
authorization. Such record shall constitute the record for
judicial review under section 313(b).
(j) Submission of License Recommendations, Conditions, and
Prescriptions.--
(1) Submission of recommendations.--Any Federal or
State agency that is providing recommendations with
respect to a license proceeding under this part shall
submit to the Commission for inclusion in the
consolidated record relating to the license proceeding
maintained under subsection (i)--
(A) the recommendations;
(B) the rationale for the recommendations;
and
(C) any supporting materials relating to the
recommendations.
(2) Written statement.--In a case in which a Federal
agency is making a determination with respect to a
covered measure (as defined in section 35(a)), the head
of the Federal agency shall submit to the Commission
for inclusion in the consolidated record, in addition
to the information required under paragraph (1), a
written statement demonstrating that the Federal agency
gave equal consideration to the effects of the covered
measure on--
(A) energy supply, distribution, cost, and
use;
(B) flood control;
(C) navigation;
(D) water supply; and
(E) air quality and the preservation of other
aspects of environmental quality.
(3) Information from other agencies.--In preparing a
written statement under paragraph (2), the head of a
Federal agency may make use of information produced or
made available by other agencies with relevant
expertise in the factors described in subparagraphs (A)
through (E) of that paragraph.
(k) Delegation.--A Secretary may delegate the authority to
determine a condition to be necessary under section 4(e), or to
prescribe a fishway under section 18, to an officer of the
applicable department based, in part, on the ability of the
officer to evaluate the broad effects of such condition or
prescription on--
(1) the applicable project; and
(2) the factors described in subparagraphs (A)
through (E) of subsection (j)(2).
(l) No Effect on Other Laws.--Nothing in this section shall
be construed to affect any requirement of the Federal Water
Pollution Control Act, the Fish and Wildlife Coordination Act,
the Endangered Species Act of 1973, section 14 of the Act of
March 3, 1899 (commonly known as the Rivers and Harbors
Appropriation Act of 1899), and those provisions in subtitle
III of title 54, United States Code commonly known as the
National Historic Preservation Act, with respect to an
application for a license under this part.
SEC. 35. TRIAL-TYPE HEARINGS.
(a) Definition of Covered Measure.--In this section, the term
``covered measure'' means--
(1) a condition determined to be necessary under
section 4(e), including an alternative condition
proposed under section 33(a);
(2) fishways prescribed under section 18, including
an alternative prescription proposed under section
33(b); or
(3) any action by the Secretary to exercise reserved
authority under the license to prescribe, submit, or
revise any condition to a license under the first
proviso of section 4(e) or fishway prescribed under
section 18.
(b) Authorization of Trial-type Hearing.--An applicant for a
license under this part (including an applicant for a license
under section 15) and any party to a license proceeding shall
be entitled to a determination on the record, after opportunity
for a trial-type hearing of not more than 120 days, on any
disputed issues of material fact with respect to an applicable
covered measure.
(c) Deadline for Request.--A request for a trial-type hearing
under this section shall be submitted not later than 60 days
after the date on which, as applicable--
(1) the Secretary determines the condition to be
necessary under section 4(e) or prescribes the fishway
under section 18; or
(2) the Secretary exercises reserved authority under
the license to prescribe, submit, or revise any
condition to a license under the first proviso of
section 4(e) or fishway prescribed under section 18, as
appropriate.
(d) No Requirement to Exhaust.--By electing not to request a
trial-type hearing under subsection (c), a license applicant
and any other party to a license proceeding shall not be
considered to have waived the right of the applicant or other
party to raise any issue of fact or law in a non-trial-type
proceeding, but no issue may be raised for the first time on
rehearing or judicial review of the license decision of the
Commission.
(e) Administrative Law Judge.--
(1) In general.--All disputed issues of material fact
raised by a party in a request for a trial-type hearing
submitted under subsection (c) shall be determined in a
single trial-type hearing to be conducted by an
Administrative Law Judge within the Office of
Administrative Law Judges and Dispute Resolution of the
Commission, in accordance with the Commission rules of
practice and procedure under part 385 of title 18, Code
of Federal Regulations (or successor regulations), and
within the timeframe established by the Commission for
each license proceeding (including a proceeding for a
license under section 15) under section 34(d).
(2) Requirement.--The trial-type hearing shall
include the opportunity--
(A) to undertake discovery; and
(B) to cross-examine witnesses, as
applicable.
(f) Stay.--The Administrative Law Judge may impose a stay of
a trial-type hearing under this section for a period of not
more than 120 days to facilitate settlement negotiations
relating to resolving the disputed issues of material fact with
respect to the covered measure.
(g) Decision of the Administrative Law Judge.--
(1) Contents.--The decision of the Administrative Law
Judge shall contain--
(A) findings of fact on all disputed issues
of material fact;
(B) conclusions of law necessary to make the
findings of fact, including rulings on
materiality and the admissibility of evidence;
and
(C) reasons for the findings and conclusions.
(2) Limitation.--The decision of the Administrative
Law Judge shall not contain conclusions as to whether--
(A) any condition or prescription should be
adopted, modified, or rejected; or
(B) any alternative condition or prescription
should be adopted, modified, or rejected.
(3) Finality.--A decision of an Administrative Law
Judge under this section with respect to a disputed
issue of material fact shall not be subject to further
administrative review.
(4) Service.--The Administrative Law Judge shall
serve the decision on each party to the hearing and
forward the complete record of the hearing to the
Commission and the Secretary that proposed the original
condition or prescription.
(h) Secretarial Determination.--
(1) In general.--Not later than 60 days after the
date on which the Administrative Law Judge issues the
decision under subsection (g) and in accordance with
any applicable schedule established by the Commission
under section 34(d), the Secretary proposing a covered
measure shall file with the Commission a final
determination to adopt, modify, or withdraw any
condition or prescription that was the subject of a
hearing under this section, based on the decision of
the Administrative Law Judge.
(2) Record of determination.--The final determination
of the Secretary filed with the Commission shall
identify the reasons for the decision and any
considerations taken into account that were not part
of, or were inconsistent with, the findings of the
Administrative Law Judge and shall be included in the
consolidated record maintained under section 34(i).
(i) Resolution of Matters.--Notwithstanding sections 4(e) and
18, if the Commission finds that a final determination under
(h)(1) of the Secretary is inconsistent with the purposes of
this part or other applicable law, the Commission may enter
into a memorandum of understanding with the Secretary to
facilitate interagency coordination and resolve the matter.
(j) Judicial Review.--The decision of the Administrative Law
Judge and the record of determination of the Secretary shall be
included in the record of the applicable licensing proceeding
and subject to judicial review of the final licensing decision
of the Commission under section 313(b).
SEC. 36. LICENSING STUDY IMPROVEMENTS.
(a) In General.--To facilitate the timely and efficient
completion of the license proceedings under this part, the
Commission shall, in consultation with applicable Federal and
State agencies and interested members of the public--
(1) compile current and accepted best practices in
performing studies required in such license
proceedings, including methodologies and the design of
studies to assess the full range of environmental
impacts of a project that reflect the most recent peer-
reviewed science;
(2) compile a comprehensive collection of studies and
data accessible to the public that could be used to
inform license proceedings under this part; and
(3) encourage license applicants, agencies, and
Indian tribes to develop and use, for the purpose of
fostering timely and efficient consideration of license
applications, a limited number of open-source
methodologies and tools applicable across a wide array
of projects, including water balance models and
streamflow analyses.
(b) Use of Studies.--To the extent practicable, the
Commission and other Federal, State, and local government
agencies and Indian tribes considering an aspect of an
application for Federal authorization (as defined in section
34) shall use studies and data based on current, accepted
science in support of their actions. Any participant in a
proceeding with respect to such a Federal authorization shall
demonstrate that a study requested by the participant is not
duplicative of current, existing studies that are applicable to
the project.
(c) Intra-watershed Review.--The Commission shall establish a
program to develop comprehensive plans, at the request of
project applicants, on a watershed-wide scale, in consultation
with the applicants, appropriate Federal agencies, and affected
States, local governments, and Indian tribes, in watersheds
with respect to which there are more than one application for a
project. Upon such a request, the Commission, in consultation
with the applicants, such Federal agencies, and affected
States, local governments, and Indian tribes, may conduct or
commission watershed-wide environmental studies, with the
participation of at least 2 applicants. Any study conducted
under this subsection shall apply only to a project with
respect to which the applicants participate.
SEC. 37. LICENSE AMENDMENT IMPROVEMENTS.
(a) Qualifying Project Upgrades.--
(1) In general.--As provided in this section, the
Commission may approve an application under this
section for an amendment to a license issued under this
part for a qualifying project upgrade.
(2) Application.--A licensee filing an application
for an amendment to a project license, for which the
licensee is seeking approval as a qualified project
upgrade under this section, shall include in such
application information sufficient to demonstrate that
the proposed change to the project described in the
application is a qualifying project upgrade.
(3) Notice and initial determination on
qualification.--Not later than 30 days after receipt of
an application under paragraph (2), the Commission, in
consultation with other Federal agencies, States, and
Indian tribes the Commission determines appropriate,
shall publish in the Federal Register a notice
containing--
(A) notice of the application filed under
paragraph (2);
(B) an initial determination as to whether
the proposed change to the project described in
the application for a license amendment is a
qualifying project upgrade; and
(C) a request for public comment on the
application and the initial determination.
(4) Public comment and consultation.--The Commission
shall, for a period of 45 days beginning on the date of
publication of a notice under paragraph (3)--
(A) accept public comment regarding the
application and whether the proposed license
amendment is for a qualifying project upgrade;
and
(B) consult with each Federal, State, and
local government agency and Indian tribe
considering an aspect of an application for any
authorization required under Federal law with
respect to the proposed license amendment, as
well as other interested agencies and Indian
tribes.
(5) Final determination on qualification.--Not later
than 15 days after the end of the public comment and
consultation period under paragraph (4), the Commission
shall publish in the Federal Register a final
determination as to whether the proposed license
amendment is for a qualifying project upgrade.
(6) Federal authorizations.--In establishing the
schedule for a proposed license amendment for a
qualifying project upgrade, the Commission shall
require final disposition of all authorizations
required under Federal law with respect to an
application for such license amendment, other than
final action by the Commission, by not later than 120
days after the date on which the Commission publishes a
final determination under paragraph (5) that the
proposed license amendment is for a qualifying project
upgrade.
(7) Commission action.--Not later than 150 days after
the date on which the Commission publishes a final
determination under paragraph (5) that a proposed
license amendment is for a qualifying project upgrade,
the Commission shall take final action on the license
amendment application.
(8) License amendment conditions.--Any condition or
prescription included in or applicable to a license
amendment for a qualifying project upgrade approved
under this subsection, including any condition,
prescription, or other requirement of a Federal
authorization, shall be limited to those that are--
(A) necessary to protect public safety; or
(B) reasonable, economically feasible, and
essential to prevent loss of or damage to, or
to mitigate adverse effects on, fish and
wildlife resources, water supply, and water
quality that are directly caused by the
construction and operation of the qualifying
project upgrade, as compared to the
environmental baseline existing at the time the
Commission approves the application for the
license amendment.
(9) Rulemaking.--Not later than 180 days after the
date of enactment of this section, the Commission
shall, after notice and opportunity for public comment,
issue a rule to implement this subsection.
(10) Definitions.--For purposes of this subsection:
(A) Qualifying project upgrade.--The term
``qualifying project upgrade'' means a change
to a project licensed under this part that
meets the qualifying criteria, as determined by
the Commission.
(B) Qualifying criteria.--The term
``qualifying criteria'' means, with respect to
a project licensed under this part, a change to
the project that--
(i) if carried out, would be unlikely
to adversely affect any species listed
as threatened or endangered under the
Endangered Species Act of 1973 or
result in the destruction or adverse
modification of critical habitat, as
determined in consultation with the
Secretary of the Interior or Secretary
of Commerce, as appropriate, in
accordance with section 7 of the
Endangered Species Act of 1973;
(ii) is consistent with any
applicable comprehensive plan under
section 10(a)(2);
(iii) includes only changes to
project lands, waters, or operations
that, in the judgment of the
Commission, would result in only
insignificant or minimal cumulative
adverse environmental effects;
(iv) would be unlikely to adversely
affect water quality or water supply;
and
(v) proposes to implement--
(I) capacity increases,
efficiency improvements, or
other enhancements to
hydropower generation at the
licensed project;
(II) environmental
protection, mitigation, or
enhancement measures to benefit
fish and wildlife resources or
other natural and cultural
resources; or
(III) improvements to public
recreation at the licensed
project.
(b) Amendment Approval Processes.--
(1) Rule.--Not later than 1 year after the date of
enactment of this section, the Commission shall, after
notice and opportunity for public comment, issue a rule
establishing new standards and procedures for license
amendment applications under this part. In issuing such
rule, the Commission shall seek to develop the most
efficient and expedient process, consultation, and
review requirements, commensurate with the scope of
different categories of proposed license amendments.
Such rule shall account for differences in
environmental effects across a wide range of categories
of license amendment applications.
(2) Capacity.--In issuing a rule under this
subsection, the Commission shall take into
consideration that a change in generating or hydraulic
capacity may indicate the potential environmental
effects of a proposed license amendment but is not
determinative of such effects.
(3) Process options.--In issuing a rule under this
subsection, the Commission shall take into
consideration the range of process options available
under the Commission's regulations for license
applications and adapt such options to amendment
applications, where appropriate.
* * * * * * *
DISSENTING VIEWS
Hydropower projects deliver affordable power to many
communities across the country. We want these projects and
facilities to continue to operate. However, this bill
designates power generation as the primary determinant on
whether to grant or extend a license to operate a hydropower
project. It places private profits over the public interest.
And, by significantly limiting the extent to which relevant
federal agencies, other than FERC, participate in the licensing
process, this bill moves us back in time, not forward.
Contrary to the claims of its supporters, H.R. 3043 will
not modernize or improve the hydropower licensing process. It
injects considerable uncertainty into the hydropower regulatory
process by inserting the Federal Energy Regulatory Commission
(FERC) into areas where it has no expertise or statutory
authority. But, there is no justification for allowing
hydropower facilities to use public water resources to generate
power and profits without mitigating the negative impacts of
their facilities on others who rely on our rivers and without
complying with modern environmental laws. Such a situation
contradicts Congress' clear intent to protect natural and
cultural resources, as articulated in the 1986 amendments to
the Federal Power Act (FPA) and in numerous laws enacted since
the federal government granted the first hydropower licenses in
the 1920s.
H.R. 3043 makes changes to the hydropower licensing process
that adversely affect states, tribes, and the administration of
numerous environmental statutes by the federal resource
agencies in the Departments of Interior, Commerce, and
Agriculture. Yet, in spite of repeated requests by Democratic
members, the Committee did not invite state, tribal, or federal
resource agency witnesses to its general oversight hearing on
hydropower licensing or to the legislative hearing on this
bill. The Committee received letters from numerous entities
expressing concerns that the legislation could undermine their
efforts to execute their responsibilities under the Clean Water
Act. These entities include the Western Governors Association,
the Environmental Council of the States, the Association of
Clean Water Administrators, the Association of State Wetland
Managers, and the states of Maryland, Vermont, and California.
The Southern States Energy Board adopted a resolution in
September opposing provisions of the bill that curtail state
authority. The Committee also received letters from several
tribal nations--the Yakama, the Puyallup, and the Skokomish--
expressing their serious concerns about the impacts of this
bill on tribal land and water rights. The unbalanced nature of
the bill reflects the lack of input by and the absence of the
Majority's concern for the views of these parties.
H.R. 3043 is targeted more toward relicensing older,
existing hydropower facilities than new hydropower projects. As
John Katz, the Deputy Associate General Counsel of FERC
testified, many of the projects entering the relicensing
process were last licensed prior to the enactment of modern
environmental laws and to the Electric Consumers Protection Act
(ECPA) in 1986. ECPA amended the FPA to ensure that FERC fully
considers all beneficial public uses of water and protection of
fish and wildlife. The imposition of conditions and
prescriptions on these existing projects often sets up a
confrontation between the hydropower operator that wishes to
renew a license with as few imposed conditions as possible and
federal resource agencies, states, tribes, recreation, and
environmental advocates who seek to protect water quality,
fisheries, recreation, drinking water supply, and other private
and public uses of water.
H.R. 3043 WOULD ESTABLISH A SEVERELY FLAWED SCHEDULE AND APPLICATION
PROCESS
H.R. 3043 directs FERC to issue a rule that will govern
schedule-setting for the evaluation and disposition of each
hydropower license or relicense application. Certainly, a
schedule that clearly lays out the responsibilities and
deadlines of each party in the licensing process can be a
valuable tool to facilitate identification and resolution of
issues associated with a specific hydropower project. However,
the schedule process under this bill favors the license
applicant and does not provide assurance that federal agencies,
states, and tribes will have sufficient time to fulfill their
obligations under the statutes they administer. As a result,
the process will not yield a completed license application that
complies with all applicable environmental laws.
FERC itself disputes claims that the bill will streamline
the licensing process. Mr. Katz stated: ``I am concerned that
proposed new FPA section 34 could increase the complexity and
length of the licensing process, while giving the Commission
the added responsibility of policing other entities' compliance
with statutory deadlines, without giving the Commission the
authority to enforce the schedule that it establishes.''\1\
---------------------------------------------------------------------------
\1\House Committee on Energy and Commerce, Testimony of John Katz,
Deputy Associate General Counsel, Office of the General Counsel,
Federal Energy Regulatory Commission, Hearing on Legislation Addressing
Pipeline and Hydropower Infrastructure Modernization, 115th Cong. (May
3, 2017).
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The newly proposed section 34 licensing process is built on
two false assumptions. First, it assumes that the only major
source of delay in these deliberations is inaction by federal
agencies, states, and tribes. Section 34 directs FERC to
establish a defined schedule that states, tribes and agencies
must follow, yet applies no similar schedule discipline to
hydropower applicants. Second, the bill wrongly assumes that
all applicants have an incentive to move the licensing process
to completion in the shortest time possible. But, in the case
of a relicensing, there are often strong incentives for the
applicant to delay the process for obtaining a new longterm
license. The operator of a facility that was last licensed
prior to 1986 received a license before FERC was required to
include mandatory conditions and prescriptions developed by
federal resource agencies to protect federal reservations and
natural resources. In a number of cases, new conditions and
prescriptions are likely to be imposed to address a variety of
environmental mitigation issues. These conditions will require
investments (e.g. fishways) or changes in operations (e.g.
adjustments in water flow regimes) among other possibilities
thereby imposing costs on the licensee.
Furthermore, during the period when the license application
is pending, FERC provides the applicant with an open-ended,
annual license under the existing terms that renews
automatically until the new license is granted. This means, the
applicant continues to sell power and operate its facility
indefinitely under the older, more profitable conditions,
creating a clear financial incentive for delaying any license
process. H.R. 3043 includes provisions to discourage delays by
federal agencies, states, and tribes. However, the lack of
uniform incentive to all parties to adhere to an agreed
schedule is unlikely to produce a completed application that
complies with the requirements of all the relevant, current
federal laws.
H.R. 3043 also does not address a major cause of delay in
the licensing and relicensing process: an applicant's failure
to provide all the information necessary for federal resource
agencies, states, and tribes to make timely decisions. Disputes
over the studies and information required to fulfill the
obligations of all regulatory parties in the license process
are often a source of delay. Although Mr. Katz testified that
FERC has an obligation to ensure compliance with statutes
administered by federal resource agencies\2\ the Commission has
frequently dismissed requests by resource agencies and states
for studies to enable them to issue legally defensible
decisions or permits under their statutory authorities.\3\
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\2\Testimony of John Katz, supra, at note 1.
\3\House Committee on Energy and Commerce, Responses submitted by
David Steindorf, California Stewardship Director, American Whitewater,
to the questions for the record, Hearing on Modernizing Energy
Infrastructure: Challenges and Opportunities to Expanding Hydropower
Generation, 115th Cong. (Mar. 12, 2017). Mr. Steindorf stated that in
his experience FERC orders studies to fulfill its own responsibilities.
It is FERC's policy not to defer to what other agencies need to carry
out their authorities. As an example, he cited a FERC order in which
FERC wrote: ``[I]t is up to the Commission to determine whether a
particular study is necessary for the Commission to fully understand
the effects of licensing or relicensing a project, and we are not
obligated to require a study to support another agency's decision
making.'' (FERC Order Denying Rehearing. 151 FERC para.61,240, p. 9);
House Committee on Energy and Commerce, Response Submitted by William
Robert Irvin, President and Chief Executive Officer, American Rivers,
Inc., to questions for the record, Hearing on Legislation Addressing
Pipeline and Hydropower Infrastructure Modernization, 115th Cong. (May
3, 2017). Mr. Irvin provided examples from nine projects in nine states
in which FERC denied study requests made by states or federal resource
agencies needed to support their decisions under their statues.
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There is no point in setting a strict schedule for making
decisions until an application is truly complete and ready to
be evaluated.
H.R. 3043 INSTITUTES NEW, BURDENSOME, AND BIASED TRIAL-TYPE HEARING
PROCEDURES
Trial-type hearings were instituted by the amendments to
the Federal Power Act included in the Energy Policy Act of 2005
(P.L. 109-58). Congress made these changes in response to
utilities' request that they have an opportunity to challenge
the factual basis for conditions proposed by federal resource
agencies prior to the issuance of the license. These provisions
were opposed at the time by a wide array of environmental,
tribal and state organizations that also have direct interests
in the management of water and other natural resources within
the affected watershed.
Despite these concessions, the industry is still not
satisfied. Once again, industry has requested and receives
special treatment in the form of a greatly expanded, biased
provision on trial-type hearings in H.R. 3043. This provision
provides the industry with everything it believes it needs to
secure decisions in its favor. Industry picks the venue, sets
the rules, and secures additional points in the licensing
process to challenge conditions that federal resource agencies
or FERC seeks to impose on a license to protect public
interests.
Under the new provision, hearings on conditions proposed by
federal resource agencies will no longer be conducted by an
Administrative Law Judge (ALJ) in the respective agency that
proposed the condition. Instead, all trial-type hearings will
be conducted before an ALJ at FERC. The industry perceives FERC
to be more receptive to its concerns than the ALJs at the
respective resource agencies. However, it is the ALJs at the
resource agencies that have the relevant experience and
knowledge of the laws, resources, and information on natural
resource issues to evaluate the issues raised in these
hearings.
This provision remains in spite of testimony opposing this
change by Mr. Katz, who asserted that this change would not
reduce the substantial expense associated with trial-type
hearings. He also noted that moving the trials to FERC was
likely to result in additional delay in the license process and
would divert resources from processing applications to dealing
with hearings. In fact, Mr. Katz recommended that Congress: ``.
. . consider eliminating trial-type hearings, thereby returning
to the agencies the responsibility of supporting their
conditions with substantial record evidence.''\4\
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\4\Testimony of Deputy AGC Katz, supra, at note 1.
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In stark contrast to FERC's recommendation, the trial-type
hearing provision in H.R. 3043 changes more than just the venue
of the hearings. It also expands the scope of trial-type
hearings beyond conditions imposed by resource agencies.
Furthermore, the provision eliminates the restriction in
current law to a single trial-type hearing on the issues of
fact associated with a proposed condition. Under the provision
in H.R. 3043, a utility could request multiple hearings on a
condition and any respective alternative conditions that the
resource agencies reject. This expansion of trial-type hearings
would be extremely expensive and burdensome, and cause further
licensing process delays.
Since being enacted in 2005, the experience with this
provision has been mixed. It has encouraged settlement of
disputes on conditions and prescriptions between licensees and
agencies, but it has also diverted resources, lengthened the
licensing process, and may have resulted in less resource
protection than Congress intended in ECPA. There is no
justification for further empowering industry in the license
process to undermine environmental protection. We should follow
the advice offered by Mr. Katz--either leave current law
unchanged or repeal the provision on trial-type hearings
altogether.
H.R. 3043 is an unbalanced bill that is far more likely to
generate new controversy and lawsuits than to facilitate a
timely and efficient hydropower licensing process. It will
deliver neither the faster outcomes nor the improved
environmental performance we need. It will encourage more
confrontation among competing water users. Rivers belong to all
of us. Water is required by every living thing and it is
required for every private and public activity in which we
engage. The hydropower licensing process can and should be more
efficient, but the industry should not be permitted to operate
without conditions to mitigate adverse impacts.
For the reasons stated above, we dissent from the views
contained in the Committee's report.
Frank Pallone, Jr.,
Ranking Member.
Bobby L. Rush,
Ranking Member,
Subcommittee on Energy.
[all]
