99–006 

112TH CONGRESS REPT. 112–219 " ! HOUSE OF REPRESENTATIVES 1st Session Part 1 

SMALL-SCALE HYDROPOWER ENHANCEMENT ACT OF 2011 

SEPTEMBER 23, 2011.—Ordered to be printed 

Mr. HASTINGS of Washington, from the Committee on Natural 

Resources, submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 795] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Natural Resources, to whom was referred the 

bill (H.R. 795) to expand small-scale hydropower, having considered the same, report favorably thereon with an amendment and 

recommend that the bill as amended do pass. 

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 ‘‘Small-Scale Hydropower Enhancement Act of 2011’’. 

SEC. 2. DEFINITIONS. 

In this Act: 

(1) CONDUIT.—The term ‘‘conduit’’ means any tunnel, canal, pipeline, aqueduct, flume, ditch, or similar manmade water conveyance that is operated for 

the distribution of water for agricultural, municipal, or industrial consumption 

and not primarily for the generation of electricity. 

(2) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of the Interior. 

SEC. 3. APPLICABILITY OF LAW. 

Notwithstanding any other provision of law, a hydroelectric project that uses only 

a non-federally owned conduit to generate electric power that does not exceed 1.5 

megawatts and that, on or before the date of enactment of this Act, is not licensed 

under, or exempted from the license requirements contained in, part I of the Federal 

Power Act (16 U.S.C. 792 et seq.) shall not be required to be licensed under part 

I of such Act. 

SEC. 4. INCLUSION OF CERTAIN FACILITIES IN REPORT AND STUDY. 

The Secretary shall— 

(1) not later than 6 months after the date of enactment of this Act, revise and 

update the study and report required under section 1834 of the Energy Policy 

Act of 2005 (Public Law 109–58) to include facilities that would result in less 

than 1 megawatt of capacity; 


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(2) to the maximum extent practicable, consult with non-Federal and noncontracting interests in implementing this section; 

(3) implement this section on a nonreimbursable basis; and 

(4) include in the report revised and updated under paragraph (1), information regarding the availability and importance of using materials and equipment produced and manufactured in the United States in the type of facilities 

referred to in that report. 

PURPOSE OF THE BILL

The purpose of H.R. 795, as ordered reported, is to expand smallscale hydropower. 

BACKGROUND AND NEED FOR LEGISLATION

Faced with aging infrastructure costs, static or declining federal 

and state budgets and mounting energy and environmental costs 

for pumping water, irrigation districts and water utilities seek to 

generate revenue from new hydropower production at canals, 

ditches, pipes, laterals and other water delivery devices (collectively known as ‘‘conduits’’). Although small in nature, this ‘‘lowhead’’ hydropower has the potential to add significant amounts of 

renewable electricity on a cumulative scale and generate local revenue as a way to decrease dependence on federal appropriations. In 

Colorado alone, conduit development could lead to 1,400 megawatts 

of production (equivalent to Glen Canyon dam’s hydropower capacity). At a time when some irrigation districts are using diesel fuel 

to pump water, emissions-free hydropower would also have a direct 

environmental benefit by replacing that fossil fuel source. 

While there are thousands of miles of canals and water pipelines 

in the western United States available for potential hydropower development, and with technological advances making small turbines 

more cost-effective, water utilities and other potential hydropower 

developers indicate that unnecessary federal regulations and lack 

of creativity and vision at the Department of the Interior have stifled conduit hydropower production. 

Under federal law, any non-federal conduit hydropower project 

must have a Federal Energy Regulatory Commission (FERC) license or an ‘‘exemption’’ from that license, no matter the size of the 

project and the lack of environmental impact. Specifically, FERC 

must carry out its license/exemption responsibilities under Section 

30 of the Federal Power Act, which requires the agency to consult 

with the U.S. Fish and Wildlife Service as it relates to the Fish and 

Wildlife Coordination Act. This requirement has proven time-consuming and costly to the point where project costs have increased 

100 percent. This requirement makes little sense because conduits 

are already off-river on previously disturbed ground and have no 

impact on the environment. Some opponents of the legislation point 

out that FERC has improved this process to reduce costs and time, 

however the expensive time delays are much longer than FERC’s 

review time. Most of the time and cost is spent by applicants before 

FERC review. In reality, this makes the real time barrier at least 

two to four times larger than the formal review period. As a result, 

Section 3 of H.R. 795 exempts any non-federal conduit hydropower 

project that generates 1.5 megawatts or less from the FERC licensing/exemption process. 

This bill does nothing to harm the environment. For example, 

non-federal conduit hydropower development covered in this bill is 


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already categorically excluded from the National Environmental 

Policy Act process under FERC regulations. In addition, the legislation does not preclude reviews resulting from Endangered Species 

Act, Clean Water Act or other environmental statutes. The legislation simply seeks to end unnecessary paperwork while keeping environmental protections in place. 

Section 4, which is jurisdictional to the Natural Resources Committee, directs the Bureau of Reclamation to re-examine its facilities for conduit hydropower development using its authority in Section 1834 of the Energy Policy Act of 2005 (Public Law 109–58). 

The agency failed to include these facilities in its initial assessment, but is now using existing funding to examine conduit hydropower development. There are concerns among water utilities and 

other developers that the agency will not pursue an aggressive 

study and will fail to solicit private input. H.R. 795 requires the 

Bureau of Reclamation to finish the report within six months of bill 

enactment and encourages non-federal participation in the study. 

COMMITTEE ACTION

H.R. 795 was introduced on February 18, 2011, by Congressman 

Adrian Smith (R–NE). The bill was referred primarily to the Committee on Energy and Commerce. The bill was referred additionally 

to the Committee on Natural Resources, and within that Committee to the Subcommittee on Water and Power. The bill was also 

referred to the Committee on Transportation and Infrastructure. 

On June 23, 2011, the Subcommittee on Water and Power held a 

hearing on the bill. On July 20, 2011, the Full Resources Committee met to consider the bill. The Subcommittee on Water and 

Power was discharged by unanimous consent. Congressman John 

Garamendi (D–CA) offered an amendment; the amendment was 

adopted by unanimous consent. The bill, as amended, was ordered 

favorably reported to the House of Representatives by unanimous 

consent. 

COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of rule XIII 

of the Rules of the House of Representatives, the Committee on 

Natural Resources’ oversight findings and recommendations are reflected in the body of this report. 

COMPLIANCE WITH HOUSE RULE XIII

1. Cost of Legislation. Clause 3(d)(1) of rule XIII of the Rules of 

the House of Representatives requires an estimate and a comparison by the Committee of the costs which would be incurred in carrying out this bill. However, clause 3(d)(2)(B) of that rule provides 

that this requirement does not apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974. Under clause 

3(c)(3) of rule XIII of the Rules of the House of Representatives and 

section 403 of the Congressional Budget Act of 1974, the Committee has received the following cost estimate for this bill from the 

Director of the Congressional Budget Office: 


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H.R. 795—Small-Scale Hydropower Enhancement Act of 2011 

Under the Federal Power Act, the Federal Energy Regulatory 

Commission (FERC) issues licenses and regulates hydroelectric facilities, regardless of size. H.R. 795 would exempt certain small hydroelectric facilities with less than 1.5 megawatts of generating capacity from FERC’s licensing requirements. In addition, the bill 

would require the Department of the Interior (DOI) to report on 

the potential for generating more electricity from small hydroelectric facilities on federal lands. 

CBO estimates that implementing H.R. 795 would have no significant impact on the federal budget. Exempting small hydroelectric facilities from federal licensing requirements would reduce 

FERC’s workload. However, because FERC recovers 100 percent of 

its costs through user fees, any reduction in administrative 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. Based on information 

from DOI, CBO also estimates that meeting expanded reporting requirements under H.R. 795 would not significantly affect the department’s costs. Furthermore, any such costs would be subject to 

the availability of appropriated funds. 

Enacting H.R. 795 would not affect direct spending or revenues; 

therefore, pay-as-you-go procedures do not apply. H.R. 795 contains 

no intergovernmental or private-sector mandates as defined in the 

Unfunded Mandates Reform Act and would impose no costs on 

state, local, or tribal governments. 

The CBO staff contact for this estimate is Megan Carroll. The estimate was approved by Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 

2. Section 308(a) of Congressional Budget Act. As required by 

clause 3(c)(2) of rule XIII of the Rules of the House of Representatives and section 308(a) of the Congressional Budget Act of 1974, 

this bill does not contain any new budget authority, spending authority, credit authority, or an increase or decrease in revenues or 

tax expenditures. CBO estimates that implementing H.R. 795 

would have no significant impact on the federal budget. 

3. General Performance Goals and Objectives. This bill does not 

authorize funding and therefore, clause 3(c)(4) of rule XIII of the 

Rules of the House of Representatives does not apply. 

EARMARK STATEMENT

This bill does not contain any Congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined under clause 9(e), 

9(f), and 9(g) of rule XXI of the Rules of the House of Representatives. 

COMPLIANCE WITH PUBLIC LAW 104–4

This bill contains no unfunded mandates. 


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PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

This bill is not intended to preempt any State, local or tribal law. 

CHANGES IN EXISTING LAW

If enacted, this bill would make no changes in existing law. 


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(6) 

DISSENTING VIEWS 

H.R. 795 would exempt non-federally owned in-conduit hydropower projects with the capacity of 1.5-megawatt or less from any 

Federal Energy Regulatory Commission (FERC) oversight. This includes an exemption from the FERC process for conduit exemptions. Section 4 of H.R. 795 directs the Secretary of the Interior to 

perform a study that looks at hydropower capabilities of 1-megawatt or less. Because of the jurisdictional constraints, only section 

4 of the legislation is referred to the Natural Resources Committee. 

We support the general intent of Section 4, but have concerns with 

the remainder of the bill. 

Since 2001, FERC has issued 50 conduit exemptions. From 2006– 

2010, 13 conduit exemptions were completed in less than a year. 

Of the 11 conduit exemptions that were issued in 2011, orders regarding the nine conduit exemptions that presented no substantive 

issues were issued on average 40 days after the comment deadline 

established in the public notice. 

Proponents for the legislation will argue that the FERC conduit 

exemption process is tedious, costly, and time consuming. It is unclear, however, why an exemption from the FERC process for 

in-conduit hydropower is necessary when a conduit exemption is 

already in place and when it appears that the process is approving 

projects in as little as two months. Removing FERC oversight also 

removes any ability for environmental mitigation, if any is 

necessary. 

EDWARD J. MARKEY, 

Ranking Member. 

Æ 


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