H. Rept. 115-461 - PROMOTING HYDROPOWER DEVELOPMENT AT EXISTING NONPOWERED DAMS ACT115th Congress (2017-2018)
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115th Congress } { Rept. 115-461
HOUSE OF REPRESENTATIVES
1st Session } { Part 1
======================================================================
PROMOTING HYDROPOWER DEVELOPMENT AT EXISTING NONPOWERED DAMS ACT
_______
December 12, 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. 2872]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 2872) to amend the Federal Power Act to promote
hydropower development at existing nonpowered dams, 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.................................................. 3
Oversight Findings and Recommendations........................... 4
New Budget Authority, Entitlement Authority, and Tax Expenditures 4
Congressional Budget Office Estimate............................. 4
Federal Mandates Statement....................................... 5
Statement of General Performance Goals and Objectives............ 5
Duplication of Federal Programs.................................. 5
Committee Cost Estimate.......................................... 5
Earmark, Limited Tax Benefits, and Limited Tariff Benefits....... 5
Disclosure of Directed Rule Makings.............................. 6
Advisory Committee Statement..................................... 6
Applicability to Legislative Branch.............................. 6
Section-by-Section Analysis of the Legislation................... 6
Changes in Existing Law Made by the Bill, as Reported............ 7
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 Hydropower Development at
Existing Nonpowered Dams Act''.
SEC. 2. PROMOTING HYDROPOWER DEVELOPMENT AT EXISTING NONPOWERED DAMS.
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. PROMOTING HYDROPOWER DEVELOPMENT AT EXISTING NONPOWERED
DAMS.
``(a) Expedited Licensing Process for Non-Federal Hydropower Projects
at Existing Nonpowered Dams.--
``(1) In general.--As provided in this section, the
Commission may issue and amend licenses and preliminary
permits, as appropriate, for any facility the Commission
determines is a qualifying facility.
``(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 qualifying facilities
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 a qualifying facility.
``(4) Length of process.--The Commission shall ensure that
the expedited process under this section will result in a final
decision on an application for a license by not later than 2
years after receipt of a completed application for the license.
``(b) Dam Safety.--
``(1) Assessment.--Before issuing any license for a
qualifying facility, the Commission shall assess the safety of
existing non-Federal dams and other non-Federal structures
related to the qualifying facility (including possible
consequences associated with failure of such structures).
``(2) Requirements.--In issuing any license for a qualifying
facility, the Commission shall ensure that the Commission's dam
safety requirements apply to such qualifying facility, and the
associated qualifying nonpowered dam, over the term of such
license.
``(c) 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 qualifying facility under 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.
``(d) Identification of Nonpowered Dams for Hydropower Development.--
``(1) In general.--Not later than 12 months after the date of
enactment of this section, the Commission, with the Secretary
of the Army, the Secretary of the Interior, and the Secretary
of Agriculture, shall jointly develop a list of existing
nonpowered Federal dams that the Commission and the Secretaries
agree have the greatest potential for non-Federal hydropower
development.
``(2) Considerations.--In developing the list under paragraph
(1), the Commission and the Secretaries may consider the
following:
``(A) The compatibility of hydropower generation with
existing purposes of the dam.
``(B) The proximity of the dam to existing
transmission resources.
``(C) The existence of studies to characterize
environmental, cultural, and historic resources
relating to the dam.
``(D) The effects of hydropower development on
release or flow operations of the dam.
``(3) Availability.--The Commission shall--
``(A) provide the list developed under paragraph (1)
to--
``(i) the Committee on Energy and Commerce,
the Committee on Transportation and
Infrastructure, and the Committee on Natural
Resources, of the House of Representatives; and
``(ii) the Committee on Environment and
Public Works, and the Committee on Energy and
Natural Resources, of the Senate; and
``(B) make such list available to the public.
``(e) Definitions.--For purposes of this section:
``(1) Qualifying criteria.--The term `qualifying criteria'
means, with respect to a facility--
``(A) as of the date of enactment of this section,
the facility is not licensed under, or exempted from
the license requirements contained in, this part;
``(B) the facility will be associated with a
qualifying nonpowered dam;
``(C) the facility will be constructed, operated, and
maintained for the generation of electric power;
``(D) the facility will use for such generation any
withdrawals, diversions, releases, or flows from the
associated qualifying nonpowered dam, including its
associated impoundment or other infrastructure; and
``(E) the operation of the facility will not result
in any material change to the storage, release, or flow
operations of the associated qualifying nonpowered dam.
``(2) Qualifying facility.--The term `qualifying facility'
means a facility that is determined under this section to meet
the qualifying criteria.
``(3) Qualifying nonpowered dam.--The term `qualifying
nonpowered dam' means any dam, dike, embankment, or other
barrier--
``(A) the construction of which was completed on or
before the date of enactment of this section;
``(B) that is or was operated for the control,
release, or distribution of water for agricultural,
municipal, navigational, industrial, commercial,
environmental, recreational, aesthetic, drinking water,
or flood control purposes; and
``(C) that, as of the date of enactment of this
section, is not generating electricity with hydropower
generating works that are licensed under, or exempted
from the license requirements contained in, this
part.''.
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. 2872 promotes hydropower development at existing
nonpowered dams 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 the Federal Energy
Regulatory Commission (FERC), the U.S. Army Corps of Engineers
(USACE), and the Department of Interior (DOI), to develop a
list of existing nonpowered Federal dams that have the greatest
potential for non-Federal hydropower development.
Background and Need for Legislation
H.R. 2872, Promoting Hydropower Development at Existing
Nonpowered Dams Act of 2017, was introduced by Representative
Larry Bucshon (R-IN) 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. 2872, 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. 2872, 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. 2872 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. 2872 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, 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, December 8, 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. 2872, the
Promoting Hydropower Development at Existing Nonpowered Dams
Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Megan
Carroll.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 2872--Promoting Hydropower Development at Existing Nonpowered Dams
Act
H.R. 2872 would direct the Federal Energy Regulatory
Commission (FERC), within 180 days of enactment, to establish
an expedited process for issuing permits and licenses for
hydropower projects at existing nonfederal dams that do not
have hydroelectric facilities. In developing those procedures,
the bill would require FERC to consult with other federal and
local agencies involved in regulating projects that would
qualify for expedited permitting and licensing on the basis of
criteria specified by the bill. H.R. 2872 also would require
FERC and other federal agencies to develop a list of federal
dams with significant potential for developing hydropower and
which currently have no hydroelectric facilities.
Establishing and implementing the proposed expedited
regulatory process could increase FERC's annual workload. Using
information from FERC about the historical costs of similar
efforts, however, CBO estimates that any increase in the
agency's administrative costs would be relatively small.
Further, because FERC recovers 100 percent of its costs through
user fees, any change in its administrative costs (which are
subject to appropriation) would be offset by an equal change in
the fees that the commission charges. Hence, CBO expects that
implementing H.R. 2872 would not have a significant net effect
on the federal budget.
Enacting H.R. 2872 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting H.R. 2872 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
H.R. 2872 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 licensees.
Using information from FERC about the potential costs of
implementing the bill, CBO estimates that any incremental
change in fees collected would be small and would total far
less than the thresholds established in UMRA for
intergovernmental and private-sector mandates ($78 million and
$156 million, respectively, in 2017).
The CBO staff contacts for this estimate are Megan Carroll
(for federal costs) and Jon Sperl (for 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 promote
hydropower development at existing nonpowered dams.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of rule XIII, no provision of
H.R. 2872 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. 2872 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. 2872:
Section 2: 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 qualifying facilities.
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
Hydropower Development at Existing Nonpowered Dams Act.''
Section 2. Promoting hydropower development at existing nonpowered dams
Section 2 amends Part I of the Federal Power Act (FPA) by
adding a new section titled ``Sec 34. Promoting Hydropower
Development at Existing Nonpowered Dams.''
FPA section 34(a) allows the Commission to issue and amend
licenses and preliminary permits for any facility the
Commission determines is a qualifying facility 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 a qualifying
facility. 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 non-Federal dams and other non-Federal
structures related to the qualifying facility before issuing
any license for a qualifying facility. When issuing any license
for a qualifying facility, the Commission shall ensure that the
Commission's dam safety requirements apply to such qualifying
facility, and the associated qualifying nonpowered dam, over
the term of such license.
FPA section 34(c) 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 qualifying facility, 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 this
part.
FPA section 34(d) directs the Commission, with the
Secretary of the Army, the Secretary of the Interior, and the
Secretary of Agriculture to jointly develop a list of existing
nonpowered Federal dams that the Commission and the Secretaries
agree have the greatest potential for non-Federal hydropower
development, and shall do so not later than 12 months after the
date of enactment this section. In developing this list, the
Commission and Secretaries may consider the compatibility of
hydropower generation with existing purposes of the dam, the
proximity of the dam to existing transmission resources, the
existence of studies to characterize environmental, cultural,
and historic resources relating to the dam, and the effects of
hydropower development on release or flow operations of the
dam. The Commission shall provide this developed list to
specified Congressional Committees and shall make such list
available to the public.
FPA section 34(e) states that the term ``qualifying
criteria'' with respect to a facility means the facility is not
licensed or exempted from license requirements contained in
Part I of the FPA, the facility will be associated with a
qualifying nonpowered dam, the facility will be used for the
generation of electric power, the facility will use the
withdrawals, diversions, releases, or flows from the associated
qualifying nonpowered dam for such generation, and the
operation of the facility will not result in any material
change to the storage, release, or flow operations of the
associated qualifying nonpowered dam. The term ``qualifying
facility'' means a facility that is determined under this
section to meet the qualifying criteria. The term ``qualifying
nonpowered dam'' means any dam, dike, embankment, or barrier,
the construction of which was completed prior to the date of
enactment of this section; that is or was operated for the
control, release, or distribution of water for agricultural,
municipal, navigational, industrial, commercial, environmental,
recreational, aesthetic, drinking water, or flood control
purposes; and that as the date of enactment of this section, is
not generating electricity with hydropower generating works
that are licensed under or exempted from the license
requirements contained in Part I of the FPA.
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. PROMOTING HYDROPOWER DEVELOPMENT AT EXISTING NONPOWERED DAMS.
(a) Expedited Licensing Process for Non-Federal Hydropower
Projects at Existing Nonpowered Dams.--
(1) In general.--As provided in this section, the
Commission may issue and amend licenses and preliminary
permits, as appropriate, for any facility the
Commission determines is a qualifying facility.
(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
qualifying facilities 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 a qualifying facility.
(4) Length of process.--The Commission shall ensure
that the expedited process under this section will
result in a final decision on an application for a
license by not later than 2 years after receipt of a
completed application for the license.
(b) Dam Safety.--
(1) Assessment.--Before issuing any license for a
qualifying facility, the Commission shall assess the
safety of existing non-Federal dams and other non-
Federal structures related to the qualifying facility
(including possible consequences associated with
failure of such structures).
(2) Requirements.--In issuing any license for a
qualifying facility, the Commission shall ensure that
the Commission's dam safety requirements apply to such
qualifying facility, and the associated qualifying
nonpowered dam, over the term of such license.
(c) 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 qualifying
facility under 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.
(d) Identification of Nonpowered Dams for Hydropower
Development.--
(1) In general.--Not later than 12 months after the
date of enactment of this section, the Commission, with
the Secretary of the Army, the Secretary of the
Interior, and the Secretary of Agriculture, shall
jointly develop a list of existing nonpowered Federal
dams that the Commission and the Secretaries agree have
the greatest potential for non-Federal hydropower
development.
(2) Considerations.--In developing the list under
paragraph (1), the Commission and the Secretaries may
consider the following:
(A) The compatibility of hydropower
generation with existing purposes of the dam.
(B) The proximity of the dam to existing
transmission resources.
(C) The existence of studies to characterize
environmental, cultural, and historic resources
relating to the dam.
(D) The effects of hydropower development on
release or flow operations of the dam.
(3) Availability.--The Commission shall--
(A) provide the list developed under
paragraph (1) to--
(i) the Committee on Energy and
Commerce, the Committee on
Transportation and Infrastructure, and
the Committee on Natural Resources, of
the House of Representatives; and
(ii) the Committee on Environment and
Public Works, and the Committee on
Energy and Natural Resources, of the
Senate; and
(B) make such list available to the public.
(e) Definitions.--For purposes of this section:
(1) Qualifying criteria.--The term ``qualifying
criteria'' means, with respect to a facility--
(A) as of the date of enactment of this
section, the facility is not licensed under, or
exempted from the license requirements
contained in, this part;
(B) the facility will be associated with a
qualifying nonpowered dam;
(C) the facility will be constructed,
operated, and maintained for the generation of
electric power;
(D) the facility will use for such generation
any withdrawals, diversions, releases, or flows
from the associated qualifying nonpowered dam,
including its associated impoundment or other
infrastructure; and
(E) the operation of the facility will not
result in any material change to the storage,
release, or flow operations of the associated
qualifying nonpowered dam.
(2) Qualifying facility.--The term ``qualifying
facility'' means a facility that is determined under
this section to meet the qualifying criteria.
(3) Qualifying nonpowered dam.--The term ``qualifying
nonpowered dam'' means any dam, dike, embankment, or
other barrier--
(A) the construction of which was completed
on or before the date of enactment of this
section;
(B) that is or was operated for the control,
release, or distribution of water for
agricultural, municipal, navigational,
industrial, commercial, environmental,
recreational, aesthetic, drinking water, or
flood control purposes; and
(C) that, as of the date of enactment of this
section, is not generating electricity with
hydropower generating works that are licensed
under, or exempted from the license
requirements contained in, this part.
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