H. Rept. 115-458 - PROMOTING CLOSED-LOOP PUMPED STORAGE HYDROPOWER ACT115th Congress (2017-2018)
Committee Report
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115th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 115-458
======================================================================
PROMOTING CLOSED-LOOP PUMPED STORAGE HYDROPOWER ACT
_______
December 11, 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
[To accompany H.R. 2880]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 2880) to amend the Federal Power Act to promote
closed-loop pumped storage hydropower, 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.............................................. 3
Background and Need for Legislation.............................. 3
Committee Action................................................. 3
Committee Votes.................................................. 4
Oversight Findings and Recommendations........................... 4
New Budget Authority, Entitlement Authority, and Tax Expenditures 4
Congressional Budget Office Estimate............................. 4
Federal Mandates Statement....................................... 4
Statement of General Performance Goals and Objectives............ 4
Duplication of Federal Programs.................................. 4
Committee Cost Estimate.......................................... 4
Earmark, Limited Tax Benefits, and Limited Tariff Benefits....... 4
Disclosure of Directed Rule Makings.............................. 5
Advisory Committee Statement..................................... 5
Applicability to Legislative Branch.............................. 5
Section-by-Section Analysis of the Legislation................... 5
Changes in Existing Law Made by the Bill, as Reported............ 6
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 ``Promoting Closed-Loop Pumped Storage
Hydropower Act''.
SEC. 2. CLOSED-LOOP PUMPED STORAGE PROJECTS.
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. CLOSED-LOOP PUMPED STORAGE PROJECTS.
``(a) Expedited Licensing Process for Closed-loop Pumped Storage
Projects.--
``(1) In general.--As provided in this section, the
Commission may issue and amend licenses and preliminary
permits, as appropriate, for closed-loop pumped storage
projects.
``(2) Rule.--Not later than 180 days after the date of
enactment of this section, the Commission shall issue a rule
establishing an expedited process for issuing and amending
licenses and preliminary permits for closed-loop pumped storage
projects under this section.
``(3) Interagency task force.--In establishing the expedited
process under this section, the Commission shall convene an
interagency task force, with appropriate Federal and State
agencies and Indian tribes represented, to coordinate the
regulatory processes associated with the authorizations
required to construct and operate closed-loop pumped storage
projects.
``(4) Length of process.--The Commission shall ensure that
the expedited process under this section will result in final
decision on an application for a license by not later than 2
years after receipt of a completed application for such
license.
``(b) Dam Safety.--Before issuing any license for a closed-loop
pumped storage project, the Commission shall assess the safety of
existing dams and other structures related to the project (including
possible consequences associated with failure of such structures).
``(c) Exemptions From Other Requirements.--
``(1) In general.--In issuing or amending a license or
preliminary permit pursuant to the expedited process
established under this section, the Commission may grant an
exemption from any other requirement of this part with respect
to any part of the closed-loop pumped storage project (not
including any dam or other impoundment).
``(2) Consultation.--In granting an exemption under paragraph
(1), the Commission shall consult with the United States Fish
and Wildlife Service and the State agency exercising
administration over the fish and wildlife resources of the
State in which the closed-loop pumped storage project is or
will be located, in the manner provided by the Fish and
Wildlife Coordination Act (16 U.S.C. 661 et seq.).
``(3) Terms and conditions.--In granting an exemption under
paragraph (1), the Commission shall include in any such
exemption--
``(A) such terms and conditions as the Fish and
Wildlife Service, National Marine Fisheries Service,
and the State agency described in paragraph (2) each
determine are appropriate to prevent loss of, or damage
to, fish and wildlife resources and to otherwise carry
out the purposes of the Fish and Wildlife Coordination
Act; and
``(B) such terms and conditions as the Commission
deems appropriate to ensure that such closed-loop
pumped storage project continues to comply with the
provisions of this section and terms and conditions
included in any such exemption.
``(4) Fees.--The Commission, in addition to the requirements
of section 10(e), shall establish fees which shall be paid by
an applicant for a license for a closed-loop pumped storage
project that is required to meet terms and conditions set by
fish and wildlife agencies under paragraph (3). Such fees shall
be adequate to reimburse the fish and wildlife agencies
referred to in paragraph (3) for any reasonable costs incurred
in connection with any studies or other reviews carried out by
such agencies for purposes of compliance with this section. The
fees shall, subject to annual appropriations Acts, be
transferred to such agencies by the Commission for use solely
for purposes of carrying out such studies and shall remain
available until expended.
``(d) Transfers.--Notwithstanding section 5, and regardless of
whether the holder of a preliminary permit for a closed-loop pumped
storage project claimed municipal preference under section 7(a) when
obtaining the permit, the Commission may, to facilitate development of
a closed-loop pumped storage project--
``(1) add entities as joint permittees following issuance of
a preliminary permit; and
``(2) transfer a license in part to one or more nonmunicipal
entities as co-licensees with a municipality, if the
municipality retains majority ownership of the project for
which the license was issued.
``(e) Interagency Communications.--Interagency cooperation in the
preparation of environmental documents under the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.) with respect to an
application for a license for a closed-loop pumped storage project
submitted pursuant to this section, and interagency communications
relating to licensing process coordination pursuant to this section,
shall not--
``(1) be considered to be ex parte communications under
Commission rules; or
``(2) preclude an agency from participating in a licensing
proceeding under this part.
``(f) Developing Abandoned Mines for Pumped Storage.--
``(1) Workshop.--Not later than 6 months after the date of
enactment of this section, the Commission shall hold a workshop
to explore potential opportunities for development of closed-
loop pumped storage projects at abandoned mine sites.
``(2) Guidance.--Not later than 1 year after the date of
enactment of this section, the Commission shall issue guidance
to assist applicants for licenses or preliminary permits for
closed-loop pumped storage projects at abandoned mine sites.
``(g) Qualifying Criteria for Closed-loop Pumped Storage Projects.--
``(1) In general.--The Commission shall establish criteria
that a pumped storage project shall meet in order to qualify as
a closed-loop pumped storage project eligible for the expedited
process established under this section.
``(2) Inclusions.--In establishing the criteria under
paragraph (1), the Commission shall include criteria requiring
that the pumped storage project--
``(A) cause little to no change to existing surface
and groundwater flows and uses; and
``(B) is unlikely to adversely affect species listed
as a threatened species or endangered species under the
Endangered Species Act of 1973.''.
SEC. 3. OBLIGATION FOR PAYMENT OF ANNUAL CHARGES.
Section 10(e) of the Federal Power Act (16 U.S.C. 803(e)) is amended
by adding at the end the following:
``(5) Any obligation of a licensee for payment of annual charges
under this subsection shall commence when the construction of the
applicable facility commences.''.
Purpose and Summary
H.R. 2880 promotes closed-loop pumped storage hydropower
development by establishing an expedited licensing process that
will result in a final decision on an application in two years
or less. The legislation also requires Federal Energy
Regulatory Commission (FERC) to hold a workshop to explore
potential opportunities for development of closed-loop pumped
storage projects at abandoned mine sites.
Background and Need for Legislation
H.R. 2880, Promoting Closed-Loop Pumped Storage Hydropower
Act, was introduced by Representative Morgan Griffith (R-VA) on
June 12, 2017.
Committee Action
The Committee on Energy and Commerce has not held hearings
on the legislation.
On October 26, 2017, the Subcommittee on Energy met in open
markup session and forwarded H.R. 2880, without amendment, to
the full Committee by a voice vote. On December 6, 2017, the
full Committee on Energy and Commerce met in open markup
session and ordered H.R. 2880, 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. 2880 reported.
Oversight Findings and Recommendations
Pursuant to clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII, the Committee has not held hearings on this
legislation.
New Budget Authority, Entitlement Authority, and Tax Expenditures
Pursuant to clause 3(c)(2) of rule XIII, the Committee
finds that H.R. 2880 would result in no new or increased budget
authority, entitlement authority, or tax expenditures or
revenues.
Congressional Budget Office Estimate
Pursuant to clause 3(c)(3) of rule XIII, at the time this
report was filed, the cost estimate prepared by the Director of
the Congressional Budget Office pursuant to section 402 of the
Congressional Budget Act of 1974 was not available.
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 amend
the Federal Power Act to promote closed-loop pumped storage
hydropower.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of rule XIII, no provision of
H.R. 2880 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. At the time this report was
filed, the estimate was not available.
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. 2880 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. 2880:
Not later than 180 days after the date of
enactment of this section, the Commission shall issue a
rule establishing an expedited process for issuing and
amending licenses and preliminary permits for closed-
loop pumped storage projects.
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 the short title of ``Promoting
Closed-Loop Pumped Storage Hydropower Act.''
Section 2. Closed-loop pumped storage projects
Section 2 amends Part I of the Federal Power Act (FPA) by
adding a new section titled ``Sec 34. Closed-Loop Pumped
Storage Projects.''
FPA section 34(a) allows the Commission to issue and amend
licenses and preliminary permits for closed-loop pumped storage
projects and directs the Commission to issue a rule not later
than 180 days after the date of enactment of this section to
establish this expedited process. When establishing the
expedited process, the Commission shall convene an interagency
task force with appropriate Federal and State agencies and
Indian tribes to coordinate the regulatory process associated
with the authorizations required to construct and operate
closed-loop pumped storage projects. The expedited process
established by the Commission shall result in a final decision
on applications for a license within two years of receipt of a
completed license application.
FPA section 34(b) requires the Commission to assess the
safety of existing dams and other structures related to the
project before issuing any license for a closed-loop pumped
storage project.
FPA section 34(c) allows the Commission to grant an
exemption from any other requirement of Part I of the FPA with
respect to any portion of the closed-loop pumped storage
project when issuing or amending a license or preliminary
permit pursuant to the expedited process established under this
section. When granting an exemption, the Commission shall
consult with the United States Fish and Wildlife Service and
the relevant State agency in the manner provided by the Fish
and Wildlife Coordination Act. Additionally, when granting an
exemption, the Commission shall include in the exemption terms
and conditions that the Fish and Wildlife Service, National
Marine Fisheries Service, and the relevant State agency
determine are appropriate to prevent loss, or damage to, fish
and wildlife resources and to otherwise carry out the purposes
of the Fish and Wildlife Coordination Act, along with terms and
conditions that the Commission deems appropriate to ensure that
such closed-loop pumped storage project continues to comply
with the provisions of this section. The Commission shall
establish fees that shall be paid by an applicant for a license
for a closed-loop pumped storage project that shall be adequate
to reimburse the fish and wildlife agencies for any reasonable
costs incurred in connection with any studies or other reviews
carried out by such agencies in order to comply with this
section. The fees shall be subject to annual appropriation Acts
and shall be transferred to such agencies by the Commission for
use solely for purposes of carrying out such studies.
FPA section 34(d) specifies that the Commission may add
entities as joint permittees following issuance of a
preliminary permit and may transfer a license in part to one or
more nonmunicipal entities as co-licensees with a municipality,
if the municipality retains majority ownership of the project
for which the license was issued.
FPA section 34(e) directs that any interagency cooperation
in the preparation of environmental documents under the
National Environmental Policy Act of 1969 with respect to an
application for a license for a closed-loop pumped storage
project, and any interagency communications related to
licensing process coordination shall not be considered to be ex
parte communications under Commission rules and shall not
preclude an agency from participating in a licensing proceeding
under Part I of the FPA.
FPA section 34(f) directs the Commission to hold a
workshop, not later than six months after the date of enactment
of this section, to explore potential opportunities for
development of closed-loop pumped storage projects at abandoned
mine sites. Not later than one year after the date of enactment
of this section, the Commission shall issue guidance to assist
applicants for licenses or preliminary permits for closed-loop
pumped storage projects at abandoned mine sites.
FPA section 34(g) directs the Commission to establish
criteria that a pumped storage project must meet in order to
qualify as a closed-loop pumped storage project eligible for
the expedited process established under this section. The
Commission established criteria shall include criteria
requiring that the pumped storage project cause little to no
change to existing surface and groundwater flows and uses and
is unlikely to adversely affect species listed as a threatened
species or endangered species under the Endangered Species Act
of 1973.
Section 3. Obligation for payment of annual charges
This section amends section 10(e) of the FPA by adding a
requirement that any obligation or a licensee for payment of
annual charges under this subsection shall commence when the
construction of the applicable facility commences.
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 (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
FEDERAL POWER ACT
PART I
* * * * * * *
Sec. 10. All licenses issued under this Part shall be on the
following conditions:
(a)(1) That the project adopted, including the maps, plans,
and specifications, shall be such as in the judgment of the
Commission will be best adapted to a comprehensive plan for
improving or developing a waterway or waterways for the use or
benefit of interstate or foreign commerce, for the improvement
and utilization of waterpower development, for the adequate
protection, mitigation, and enhancement of fish and wildlife
(including related spawning grounds and habitat), and for other
beneficial public uses, including irrigation, flood control,
water supply, and recreational and other purposes referred to
in section 4(e); and if necessary in order to secure such plan
the Commission shall have authority to require the modification
of any project and of the plans and specifications of the
project works before approval.
(2) In order to ensure that the project adopted will be best
adapted to the comprehensive plan described in paragraph (1),
the Commission shall consider each of the following:
(A) The extent to which the project is consistent
with a comprehensive plan (where one exists) for
improving, developing, or conserving a waterway or
waterways affected by the project that is prepared by--
(i) an agency established pursuant to Federal
law that has the authority to prepare such a
plan; or
(ii) the State in which the facility is or
will be located.
(B) The recommendations of Federal and State agencies
exercising administration over flood control,
navigation, irrigation, recreation, cultural and other
relevant resources of the State in which the project is
located, and the recommendations (including fish and
wildlife recommendations) of Indian tribes affected by
the project.
(C) In the case of a State or municipal applicant, or
an applicant which is primarily engaged in the
generation or sale of electric power (other than
electric power solely from cogeneration facilities or
small power production facilities), the electricity
consumption efficiency improvement program of the
applicant, including its plans, performance and
capabilities for encouraging or assisting its customers
to conserve electricity cost-effectively, taking into
account the published policies, restrictions, and
requirements of relevant State regulatory authorities
applicable to such applicant.
(3) Upon receipt of an application for a license, the
Commission shall solicit recommendations from the agencies and
Indian tribes identified in subparagraphs (A) and (B) of
paragraph (2) for proposed terms and conditions for the
Commission's consideration for inclusion in the license.
(b) That except when emergency shall require for the
protection of navigation, life, health, or property, no
substantial alteration or addition not in conformity with the
approved plans shall be made to any dam or other project works
constructed hereunder of an installed capacity in excess of two
thousand horsepower without the prior approval of the
Commission; and any emergency alteration or addition so made
shall thereafter be subject to such modification and change as
the Commission may direct.
(c) That the licensee shall maintain the project works in a
condition or repair adequate for the purposes of navigation and
for the efficient operation of said works in the development
and transmission of power, shall make all necessary renewals
and replacements, shall establish and maintain adequate
depreciation reserves for such purposes, shall so maintain and
operate said works as not to impair navigation, and shall
conform to such rules and regulations as the Commission may
from time to time prescribe for the protection of life, health,
and property. Each licensee hereunder shall be liable for all
damages occasioned to the property of others by the
construction, maintenance, or operation of the project works or
of the works appurtenant or accessory thereto, constructed
under the license, and in no event shall the United States be
liable therefor.
(d) That after the first twenty years of operation, out of
surplus earned thereafter, if any, accumulated in excess of a
specified reasonable rate of return upon the net investment of
a licensee in any project or projects, under license, the
licensee shall establish and maintain amortization reserves,
which reserves shall, in the discretion of the Commission, be
held until the termination of the license or be applied from
time to time in reduction of the net investment. Such specified
rate of return and the proportion of such surplus earnings to
be paid into and held in such reserves shall be set forth in
the license. For any new license issued under section 15, the
amortization reserves under this subsection shall be maintained
on and after the effective date of such new license.
(e)(1) That the licensee shall pay to the United States
reasonable annual charges in an amount to be fixed by the
Commission for the purpose of reimbursing the United States for
the costs of the administration of this Part, including any
reasonable and necessary costs incurred by Federal and State
fish and wildlife agencies and other natural and cultural
resource agencies in connection with studies or other reviews
carried out by such agencies for purposes of administering
their responsibilities under this part; for recompensing it for
the use, occupancy, and enjoyment of its lands or other
property; and for the expropriation to the Government of
excessive profits until the respective States shall make
provision for preventing excessive profits or for the
expropriation thereof to themselves, or until the period of
amortization as herein provided is reached, and in fixing such
charges the Commission shall seek to avoid increasing the price
to the consumers of power by such charges, and any such charges
may be adjusted from time to time by the Commission as
conditions may require: Provided, That, subject to annual
appropriations Acts, the portion of such annual charges imposed
by the Commission under this subsection to cover the reasonable
and necessary costs of such agencies shall be available to such
agencies (in addition to other funds appropriated for such
purposes) solely for carrying out such studies and reviews and
shall remain available until expended: Provided, That when
licenses are issued involving the use of Government dams or
other structures owned by the United States or tribal lands
embraced within Indian reservations the Commission shall,
subject to the approval of the Secretary of the Interior in the
case of such dams or structures in reclamation projects and, in
the case of such tribal lands, subject to the approval of the
Indian tribe having jurisdiction of such lands as provided in
section 16 of the Act of June 18, 1934 (48 Stat. 984), fix a
reasonable annual charge for the use thereof, and such charges
may with like approval be readjusted by the Commission at the
end of twenty years after the project is available for service
and at periods of not less than ten years thereafter upon
notice and opportunity for hearing: Provided further, That
licenses for the development, transmission, or distribution of
power by States or municipalities shall be issued and enjoyed
without charge to the extent such power is sold to the public
without profit or is used by such State or municipality for
State or municipal purposes, except that as to projects
constructed or to be constructed by States or municipalities
primarily designed to provide or improve navigation, licenses
therefor shall be issued without charge; and that licenses for
the development, transmission, or distribution of power for
domestic, mining, or other beneficial use in projects of not
more than two thousand horsepower installed capacity may be
issued without charges, except on tribal lands within Indian
reservations; but in no case shall a license be issued free of
charge for the development and utilization of power created by
any Government dam and that the amount charged therefor in any
license shall be such as determined by the Commission :
Provided however, That no charge shall be assessed for the use
of any Government dam or structure by any licensee if, before
January 1, 1985, the Secretary of the Interior has entered into
a contract with such licensee that meets each of the following
requirements:
(A) The contract covers one or more projects for
which a license was issued by the Commission before
January 1, 1985.
(B) The contract contains provisions specifically
providing each of the following:
(i) A powerplant may be built by the licensee
utilizing irrigation facilities constructed by
the United States.
(ii) The powerplant shall remain in the
exclusive control, possession, and ownership of
the licensee concerned.
(iii) All revenue from the powerplant and
from the use, sale, or disposal of electric
energy from the powerplant shall be, and
remain, the property of such licensee.
(C) The contract is an amendatory, supplemental and
replacement contract between the United States and: (i)
the Quincy-Columbia Basin Irrigation District (Contract
No. 14-06-100-6418); (ii) the East Columbia Basin
Irrigation District (Contract No. 14-06-100-6419); or,
(iii) the South Columbia Basin Irrigation District
(Contract No. 14-06-100-6420).
This paragraph shall apply to any project covered by a contract
referred to in this paragraph only during the term of such
contract unless otherwise provided by subsequent Act of
Congress. In the event an overpayment of any charge due under
this section shall be made by a licensee, the Commission is
authorized to allow a credit for such overpayment when charges
are due for any subsequent period.
(2) In the case of licenses involving the use of Government
dams or other structures owned by the United States, the
charges fixed (or readjusted) by the Commission under paragraph
(1) for the use of such dams or structures shall not exceed 1
mill per kilowatt-hour for the first 40 gigawatt-hours of
energy a project produces in any year, 1\1/2\ mills per
kilowatt-hour for over 40 up to and including 80 gigawatt-hours
in any year, and 2 mills per kilowatt-hour for any energy the
project produces over 80 gigawatt-hours in any year. Except as
provided in subsection (f), such charge shall be the only
charge assessed by any agency of the United States for the use
of such dams or structures.
(3) The provisions of paragraph (2) shall apply with respect
to--
(A) all licenses issued after the date of the
enactment of this paragraph; and
(B) all licenses issued before such date which--
(i) did not fix a specific charge for the use
of the Government dam or structure involved;
and
(ii) did not specify that no charge would be
fixed for the use of such dam or structure.
(4) Every 5 years, the Commission shall review the
appropriateness of the annual charge limitations provided for
in this subsection and report to Congress concerning its
recommendations thereon.
(5) Any obligation of a licensee for payment of annual
charges under this subsection shall commence when the
construction of the applicable facility commences.
(f) That whenever any licensee hereunder is directly
benefited by the construction work of another licensee, a
permittee, or of the United States of a storage reservoir or
other headwater improvement, the Commission shall require as a
condition of the license that the licensee so benefited shall
reimburse the owner of such reservoir or other improvements for
such part of the annual charges for interest, maintenance, and
depreciation thereon as the Commission may deem equitable. The
proportion of such charges to be paid by any licensee shall be
determined by the Commission. The licensees or permittees
affected shall pay to the United States the cost of making such
determination as fixed by the Commission.
Whenever such reservoir or other improvement is constructed
by the United States the Commission shall assess similar
charges against any licensee directly benefited thereby, and
any amount so assessed shall be paid into the Treasury of the
United States, to be reserved and appropriated as a part of the
special fund for headwater improvements as provided in section
17 hereof.
Whenever any power project not under license is benefited by
the construction work of a licensee or permittee, the United
States or any agency thereof, the Commission, after notice to
the owner or owners of such unlicensed project, shall determine
and fix a reasonable and equitable annual charge to be paid to
the licensee or permittee on account of such benefits, or to
the United States if it be the owner of such headwater
improvement.
(g) Such other conditions not inconsistent with the
provisions of this Act as the Commission may require.
(h)(1) That combinations, agreements, arrangements, or
understandings, express or implied, to limit the output of
electrical energy, to restrain trade, or to fix, maintain, or
increase prices for electrical energy or service are hereby
prohibited.
(2) That conduct under the license that: (A) results in the
contravention of the policies expressed in the antitrust laws;
and (B) is not otherwise justified by the public interest
considering regulatory policies expressed in other applicable
law (including but not limited to those contained in Part II of
this Act) shall be prevented or adequately minimized by means
of conditions included in the license prior to its issuance. In
the event it is impossible to prevent or adequately minimize
the contravention, the Commission shall refuse to issue any
license to the applicant for the project and, in the case of an
existing project, shall take appropriate action to provide
thereafter for the operation and maintenance of the affected
project and for the issuing of a new license in accordance with
section 15 of this Part.
(i) In issuing licenses for a minor part only of a complete
project, or for a complete project of not more than two
thousand horsepower installed capacity, the Commission may in
its discretion waive such conditions, provisions, and
requirements of this Part, except the license period of fifty
years, as it may deem to be to the public interest to waive
under the circumstances: Provided, That the provision hereof
shall not apply annual charges for use of lands within Indian
reservations.
(j)(1) That in order to adequately and equitably protect,
mitigate damages to, and enhance, fish and wildlife (including
related spawning grounds and habitat) affected by the
development, operation, and management of the project, each
license issued under this Part shall include conditions for
such protection, mitigation, and enhancement. Subject to
paragraph (2), such conditions shall be based on
recommendations received pursuant to the Fish and Wildlife
Coordination Act (16 U.S.C. 661 et seq.) from the National
Marine Fisheries Service, the United States Fish and Wildlife
Service, and State fish and wildlife agencies.
(2) Whenever the Commission believes that any recommendation
referred to in paragraph (1) may be inconsistent with the
purposes and requirements of this Part or other applicable law,
the Commission and the agencies referred to in paragraph (1)
shall attempt to resolve any such inconsistency, giving due
weight to the recommendations, expertise, and statutory
responsibilities of such agencies. If, after such attempt, the
Commission does not adopt in whole or in part a recommendation
of any such agency, the Commission shall publish each of the
following findings (together with a statement of the basis for
each of the findings):
(A) A finding that adoption of such recommendation is
inconsistent with the purposes and requirements of this
Part or with other applicable provisions of law.
(B) A finding that the conditions selected by the
Commission comply with the requirements of paragraph
(1).
Subsection (i) shall not apply to the conditions required under
this subsection.
* * * * * * *
SEC. 34. CLOSED-LOOP PUMPED STORAGE PROJECTS.
(a) Expedited Licensing Process for Closed-loop Pumped
Storage Projects.--
(1) In general.--As provided in this section, the
Commission may issue and amend licenses and preliminary
permits, as appropriate, for closed-loop pumped storage
projects.
(2) Rule.--Not later than 180 days after the date of
enactment of this section, the Commission shall issue a
rule establishing an expedited process for issuing and
amending licenses and preliminary permits for closed-
loop pumped storage projects under this section.
(3) Interagency task force.--In establishing the
expedited process under this section, the Commission
shall convene an interagency task force, with
appropriate Federal and State agencies and Indian
tribes represented, to coordinate the regulatory
processes associated with the authorizations required
to construct and operate closed-loop pumped storage
projects.
(4) Length of process.--The Commission shall ensure
that the expedited process under this section will
result in final decision on an application for a
license by not later than 2 years after receipt of a
completed application for such license.
(b) Dam Safety.--Before issuing any license for a closed-loop
pumped storage project, the Commission shall assess the safety
of existing dams and other structures related to the project
(including possible consequences associated with failure of
such structures).
(c) Exemptions From Other Requirements.--
(1) In general.--In issuing or amending a license or
preliminary permit pursuant to the expedited process
established under this section, the Commission may
grant an exemption from any other requirement of this
part with respect to any part of the closed-loop pumped
storage project (not including any dam or other
impoundment).
(2) Consultation.--In granting an exemption under
paragraph (1), the Commission shall consult with the
United States Fish and Wildlife Service and the State
agency exercising administration over the fish and
wildlife resources of the State in which the closed-
loop pumped storage project is or will be located, in
the manner provided by the Fish and Wildlife
Coordination Act (16 U.S.C. 661 et seq.).
(3) Terms and conditions.--In granting an exemption
under paragraph (1), the Commission shall include in
any such exemption--
(A) such terms and conditions as the Fish and
Wildlife Service, National Marine Fisheries
Service, and the State agency described in
paragraph (2) each determine are appropriate to
prevent loss of, or damage to, fish and
wildlife resources and to otherwise carry out
the purposes of the Fish and Wildlife
Coordination Act; and
(B) such terms and conditions as the
Commission deems appropriate to ensure that
such closed-loop pumped storage project
continues to comply with the provisions of this
section and terms and conditions included in
any such exemption.
(4) Fees.--The Commission, in addition to the
requirements of section 10(e), shall establish fees
which shall be paid by an applicant for a license for a
closed-loop pumped storage project that is required to
meet terms and conditions set by fish and wildlife
agencies under paragraph (3). Such fees shall be
adequate to reimburse the fish and wildlife agencies
referred to in paragraph (3) for any reasonable costs
incurred in connection with any studies or other
reviews carried out by such agencies for purposes of
compliance with this section. The fees shall, subject
to annual appropriations Acts, be transferred to such
agencies by the Commission for use solely for purposes
of carrying out such studies and shall remain available
until expended.
(d) Transfers.--Notwithstanding section 5, and regardless of
whether the holder of a preliminary permit for a closed-loop
pumped storage project claimed municipal preference under
section 7(a) when obtaining the permit, the Commission may, to
facilitate development of a closed-loop pumped storage
project--
(1) add entities as joint permittees following
issuance of a preliminary permit; and
(2) transfer a license in part to one or more
nonmunicipal entities as co-licensees with a
municipality, if the municipality retains majority
ownership of the project for which the license was
issued.
(e) Interagency Communications.--Interagency cooperation in
the preparation of environmental documents under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) with
respect to an application for a license for a closed-loop
pumped storage project submitted pursuant to this section, and
interagency communications relating to licensing process
coordination pursuant to this section, shall not--
(1) be considered to be ex parte communications under
Commission rules; or
(2) preclude an agency from participating in a
licensing proceeding under this part.
(f) Developing Abandoned Mines for Pumped Storage.--
(1) Workshop.--Not later than 6 months after the date
of enactment of this section, the Commission shall hold
a workshop to explore potential opportunities for
development of closed-loop pumped storage projects at
abandoned mine sites.
(2) Guidance.--Not later than 1 year after the date
of enactment of this section, the Commission shall
issue guidance to assist applicants for licenses or
preliminary permits for closed-loop pumped storage
projects at abandoned mine sites.
(g) Qualifying Criteria for Closed-loop Pumped Storage
Projects.--
(1) In general.--The Commission shall establish
criteria that a pumped storage project shall meet in
order to qualify as a closed-loop pumped storage
project eligible for the expedited process established
under this section.
(2) Inclusions.--In establishing the criteria under
paragraph (1), the Commission shall include criteria
requiring that the pumped storage project--
(A) cause little to no change to existing
surface and groundwater flows and uses; and
(B) is unlikely to adversely affect species
listed as a threatened species or endangered
species under the Endangered Species Act of
1973.
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