29–010 

Calendar No. 69 

113TH CONGRESS REPORT " ! SENATE 1st Session 113–36 

HYDROPOWER REGULATORY EFFICIENCY 

JUNE 3, 2013.—Ordered to be printed 

Mr. WYDEN, from the Committee on Energy and Natural 

Resources, submitted the following 

R E P O R T 

[To accompany S. 545] 

The Committee on Energy and Natural Resources, to which was 

referred the bill (S. 545) to improve hydropower, and for other purposes, having considered the same, reports favorably thereon with 

an amendment and recommends that the bill, as amended, do pass. 

The amendment is as follows: 

Strike out all after the enacting clause and insert in lieu thereof 

the following: 

SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

(a) SHORT TITLE.—This Act may be cited as the ‘‘Hydropower Regulatory Efficiency Act of 2013’’. 

(b) TABLE OF CONTENTS.—The table of contents of this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Findings. 

Sec. 3. Promoting small hydroelectric power projects. 

Sec. 4. Promoting conduit hydropower projects. 

Sec. 5. FERC authority to extend preliminary permit periods. 

Sec. 6. Promoting hydropower development at nonpowered dams and closed loop 

pumped storage projects. 

Sec. 7. DOE study of pumped storage and potential hydropower from conduits. 

SEC. 2. FINDINGS. 

Congress finds that— 

(1) the hydropower industry currently employs approximately 300,000 workers across the United States; 

(2) hydropower is the largest source of clean, renewable electricity in the 

United States; 

(3) as of the date of enactment of this Act, hydropower resources, including 

pumped storage facilities, provide— 

(A) nearly 7 percent of the electricity generated in the United States; and 

(B) approximately 100,000 megawatts of electric capacity in the United 

States; 


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(4) only 3 percent of the 80,000 dams in the United States generate electricity, so there is substantial potential for adding hydropower generation to 

nonpowered dams; and 

(5) according to one study, by utilizing currently untapped resources, the 

United States could add approximately 60,000 megawatts of new hydropower 

capacity by 2025, which could create 700,000 new jobs over the next 13 years. 

SEC. 3. PROMOTING SMALL HYDROELECTRIC POWER PROJECTS. 

Subsection (d) of section 405 of the Public Utility Regulatory Policies Act of 1978 

(16 U.S.C. 2705) is amended by striking ‘‘5,000’’ and inserting ‘‘10,000’’. 

SEC. 4. PROMOTING CONDUIT HYDROPOWER PROJECTS. 

(a) APPLICABILITY OF, AND EXEMPTION FROM, LICENSING REQUIREMENTS.—Section 

30 of the Federal Power Act (16 U.S.C. 823a) is amended— 

(1) by striking subsections (a) and (b) and inserting the following: 

‘‘(a)(1) A qualifying conduit hydropower facility shall not be required to be licensed 

under this part. 

‘‘(2)(A) Any person, State, or municipality proposing to construct a qualifying conduit hydropower facility shall file with the Commission a notice of intent to construct such facility. The notice shall include sufficient information to demonstrate 

that the facility meets the qualifying criteria. 

‘‘(B) Not later than 15 days after receipt of a notice of intent filed under subparagraph (A), the Commission shall— 

‘‘(i) make an initial determination as to whether the facility meets the qualifying criteria; and 

‘‘(ii) if the Commission makes an initial determination, pursuant to clause (i), 

that the facility meets the qualifying criteria, publish public notice of the notice 

of intent filed under subparagraph (A). 

‘‘(C) If, not later than 45 days after the date of publication of the public notice 

described in subparagraph (B)(ii)— 

‘‘(i) an entity contests whether the facility meets the qualifying criteria, the 

Commission shall promptly issue a written determination as to whether the facility meets such criteria; or 

‘‘(ii) no entity contests whether the facility meets the qualifying criteria, the 

facility shall be deemed to meet such criteria. 

‘‘(3) For purposes of this section: 

‘‘(A) 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. 

‘‘(B) The term ‘qualifying conduit hydropower facility’ means a facility (not including any dam or other impoundment) that is determined or deemed under 

paragraph (2)(C) to meet the qualifying criteria. 

‘‘(C) The term ‘qualifying criteria’ means, with respect to a facility— 

‘‘(i) the facility is constructed, operated, or maintained for the generation 

of electric power and uses for such generation only the hydroelectric potential of a non-federally owned conduit; 

‘‘(ii) the facility has an installed capacity that does not exceed 5 

megawatts; and 

‘‘(iii) on or before the date of enactment of the Hydropower Regulatory Efficiency Act of 2013, the facility is not licensed under, or exempted from the 

license requirements contained in, this part. 

‘‘(b) Subject to subsection (c), the Commission may grant an exemption in whole 

or in part from the requirements of this part, including any license requirements 

contained in this part, to any facility (not including any dam or other impoundment) 

constructed, operated, or maintained for the generation of electric power which the 

Commission determines, by rule or order— 

‘‘(1) utilizes for such generation only the hydroelectric potential of a conduit; 

and 

‘‘(2) has an installed capacity that does not exceed 40 megawatts.’’; 

(2) in subsection (c), by striking ‘‘subsection (a)’’ and inserting ‘‘subsection 

(b)’’; and 

(3) in subsection (d), by striking ‘‘subsection (a)’’ and inserting ‘‘subsection 

(b)’’. 

(b) CONFORMING AMENDMENT.—Subsection (d) of section 405 of the Public Utility 

Regulatory Policies Act of 1978 (16 U.S.C. 2705), as amended, is further amended 

by striking ‘‘subsection (a) of such section 30’’ and inserting ‘‘subsection (b) of such 

section 30’’. 


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SEC. 5. FERC AUTHORITY TO EXTEND PRELIMINARY PERMIT PERIODS. 

Section 5 of the Federal Power Act (16 U.S.C. 798) is amended— 

(1) by designating the first, second, and third sentences as subsections (a), (c), 

and (d), respectively; and 

(2) by inserting after subsection (a) (as so designated) the following: 

‘‘(b) The Commission may extend the period of a preliminary permit once for not 

more than 2 additional years beyond the 3 years permitted by subsection (a) if the 

Commission finds that the permittee has carried out activities under such permit 

in good faith and with reasonable diligence.’’. 

SEC. 6. PROMOTING HYDROPOWER DEVELOPMENT AT NONPOWERED DAMS AND CLOSED 

LOOP PUMPED STORAGE PROJECTS. 

(a) IN GENERAL.—To improve the regulatory process and reduce delays and costs 

for hydropower development at nonpowered dams and closed loop pumped storage 

projects, the Federal Energy Regulatory Commission (referred to in this section as 

the ‘‘Commission’’) shall investigate the feasibility of the issuance of a license for 

hydropower development at nonpowered dams and closed loop pumped storage 

projects in a 2-year period (referred to in this section as a ‘‘2-year process’’). Such 

a 2-year process shall include any prefiling licensing process of the Commission. 

(b) WORKSHOPS AND PILOTS.—The Commission shall— 

(1) not later than 60 days after the date of enactment of this Act, hold an 

initial workshop to solicit public comment and recommendations on how to implement a 2-year process; 

(2) develop criteria for identifying projects featuring hydropower development 

at nonpowered dams and closed loop pumped storage projects that may be appropriate for licensing within a 2-year process; 

(3) not later than 180 days after the date of enactment of this Act, develop 

and implement pilot projects to test a 2-year process, if practicable; and 

(4) not later than 3 years after the date of implementation of the final pilot 

project testing a 2-year process, hold a final workshop to solicit public comment 

on the effectiveness of each tested 2-year process. 

(c) MEMORANDUM OF UNDERSTANDING.—The Commission shall, to the extent practicable, enter into a memorandum of understanding with any applicable Federal or 

State agency to implement a pilot project described in subsection (b). 

(d) REPORTS.— 

(1) PILOT PROJECTS NOT IMPLEMENTED.—If the Commission determines that 

no pilot project described in subsection (b) is practicable because no 2-year process is practicable, not later than 240 days after the date of enactment of this 

Act, the Commission shall submit to the Committee on Energy and Commerce 

of the House of Representatives and the Committee on Energy and Natural Resources of the Senate a report that— 

(A) describes the public comments received as part of the initial workshop 

held under subsection (b)(1); and 

(B) identifies the process, legal, environmental, economic, and other 

issues that justify the determination of the Commission that no 2-year process is practicable, with recommendations on how Congress may address or 

remedy the identified issues. 

(2) PILOT PROJECTS IMPLEMENTED.—If the Commission develops and implements pilot projects involving a 2-year process, not later than 60 days after the 

date of completion of the final workshop held under subsection (b)(4), the Commission shall submit to the Committee on Energy and Commerce of the House 

of Representatives and the Committee on Energy and Natural Resources of the 

Senate a report that— 

(A) describes the outcomes of the pilot projects; 

(B) describes the public comments from the final workshop on the effectiveness of each tested 2-year process; and 

(C)(i) outlines how the Commission will adopt policies under existing law 

(including regulations) that result in a 2-year process for appropriate 

projects; 

(ii) outlines how the Commission will issue new regulations to adopt a 2- 

year process for appropriate projects; or 

(iii) identifies the process, legal, environmental, economic, and other 

issues that justify a determination of the Commission that no 2-year process is practicable, with recommendations on how Congress may address or 

remedy the identified issues. 

SEC. 7. DOE STUDY OF PUMPED STORAGE AND POTENTIAL HYDROPOWER FROM CONDUITS. 

(a) IN GENERAL.—The Secretary of Energy shall conduct a study— 

(1)(A) of the technical flexibility that existing pumped storage facilities can 

provide to support intermittent renewable electric energy generation, including 


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the potential for such existing facilities to be upgraded or retrofitted with advanced commercially available technology; and 

(B) of the technical potential of existing pumped storage facilities and new advanced pumped storage facilities, to provide grid reliability benefits; and 

(2)(A) to identify the range of opportunities for hydropower that may be obtained from conduits (as defined by the Secretary) in the United States; and 

(B) through case studies, to assess amounts of potential energy generation 

from such conduit hydropower projects. 

(b) REPORT.—Not later than 1 year after the date of enactment of this Act, the 

Secretary of Energy shall submit to the Committee on Energy and Commerce of the 

House of Representatives and the Committee on Energy and Natural Resources of 

the Senate a report that describes the results of the study conducted under subsection (a), including any recommendations. 

PURPOSE

The purpose of S. 545 is to promote hydropower development in 

the United States by statutorily exempting qualifying conduit hydropower facilities from licensing and regulation under the Federal 

Power Act, expanding existing exemptions for certain other conduit 

hydropower facilities and small hydroelectric power projects, and 

requiring the Federal Energy Regulatory Commission (FERC) to 

study ways to improve the licensing of hydropower development at 

nonpowered dams and closed loop pumped storage projects. 

BACKGROUND AND NEED

Hydropower is the largest source of clean, renewable electricity 

in the United States. Today, we have 100,000 megawatts of hydroelectric capacity, providing about 7 percent of the nation’s electricity needs, and avoiding approximately 200 million metric tons 

of carbon emissions each year. Last Congress, DOE testified before 

the Committee on Energy and Natural Resources that the nation 

could realize an additional 300 gigawatts of hydropower through efficiency and capacity upgrades at existing facilities, powering nonpowered dams, new small hydro development, and pumped storage 

hydropower. In addition, there is an unknown amount of potential 

power that can be generated from existing conduits such as irrigation canals, and pumped storage facilities can help integrate intermittent renewable resources. 

FERC’s current licensing process takes five years or more. A 

shorter process, if feasible, would be much less burdensome and 

costly for a low-impact project such as installing hydro at an existing non-hydro dam. With only three percent of existing dams in the 

United States currently generating power, there is great potential 

for adding hydropower generation to existing non-powered dams. 

Improving and shortening the licensing process will help ensure 

that additional hydropower can be developed while maintaining environmental protections and the opportunity for public input into 

the licensing process. According to a study completed by the National Hydropower Association, the U.S. could add approximately 

60,000 megawatts (MW) of new hydropower capacity at existing 

dams by 2025. 

LEGISLATIVE HISTORY

S. 545 was introduced by Senator Murkowski on March 13, 2013. 

Senators Wyden, Risch, Cantwell, Crapo, Murray, Begich, Bennet, 

Coons, Udall of Colorado, Feinstein, and Casey are cosponsors. The 


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House of Representatives passed similar legislation, H.R. 267, on 

February 13, 2013, by a vote of 422 to 0. 

The Committee on Energy and Natural Resources held a hearing 

on both S. 545 and H.R. 267 on April 23, 2013. The Committee 

adopted an amendment in the nature of a substitute to S. 545 to 

conform S. 545 to H.R. 267, and ordered S. 545, as amended, and 

H.R. 267 favorably reported on May 8, 2012. 

The Committee considered similar legislation, S. 629, in the 

112th Congress. S. 629 was also introduced by Senator Murkowski. 

The Committee held a hearing on S. 629 on March 31, 2011. S. 

Hrg. 112–26. The Committee ordered the bill reported favorably, 

with an amendment, on May 18, 2011. S. Rept. 112–19. 

COMMITTEE RECOMMENDATION

The Committee on Energy and Natural Resources, in an open 

business session on May 8, 2013, by voice vote of a quorum 

present, recommends that the Senate pass S. 545, if amended as 

described herein. 

COMMITTEE AMENDMENT

During its consideration of S. 545, the Committee adopted an 

amendment in the nature of a substitute to conform S. 545 to the 

text of H.R. 267. The amendment is described in the section-by-section analysis. 

SECTION-BY-SECTION ANALYSIS

Section 1 provides a short title and a table of contents. 

Section 2 sets forth findings. 

Section 3 amends section 405 of the Public Utility Regulatory 

Policies Act of 1978 to increase rated capacity of small hydropower 

projects eligible for the licensing exemption from 5 MW to 10 MW. 

Section 4 amends the small conduit hydropower exemption in 

section 30 of the Federal Power Act to create a new statutory exemption for certain qualifying small conduit facilities from the licensing and regulatory requirements of the Federal Power Act and 

to expand the scope of the existing exemption in section 30. 

Subsection (a)(1) amends section 30(a) of the Federal Power Act 

to provide a statutory exemption for qualifying conduit hydropower 

facilities from the licensing requirements of the Federal Power Act. 

As amended, section 30(a)(3) defines a ‘‘qualifying conduit hydropower facility’’ as a project that: (1) uses a non-Federally owned 

conduit; (2) has an installed capacity of 5 MW or less; and (3) does 

not currently have a license or exemption. 

Section 30(a)(2) of the Federal Power Act, as amended, provides 

that an entity proposing to construct a qualifying conduit hydropower facility is required to file a notice of intent with FERC that 

includes sufficient information to demonstrate that the facility 

meets the qualifying criteria. If FERC makes an initial determination that the proposed project meets the criteria, it shall publish 

a public notice of the notice of intent to construct the project. If no 

entity contests that the project meets the criteria within 45 days, 

the project is deemed to meet the criteria. If an entity contests 

whether the project meets the criteria, FERC is required to 


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promptly issue a written determination as to whether the facility 

meets the criteria. 

Subsection 4(a) of the bill also amends section 30(b) of the Federal Power Act, which currently authorizes FERC to grant exemptions for small conduit hydropower facilities with installed capacity 

of up to 15 MW (40 MW in the case of State or local government 

facilities used solely for municipal water supply purposes), to increase the scope of the exemption from 15 MW to 40 MW. Small 

conduit hydropower facilities granted an exemption by FERC under 

the amended section 30(b) will still be subject to state and federal 

fish and wildlife terms and conditions pursuant to section 30(c) of 

the Federal Power Act. Small conduit hydropower facilities statutorily exempt from Federal Power Act licensing under section 30(a), 

as amended, will not be subject to fish and wildlife terms and conditions pursuant to section 30(c). 

Paragraphs (2) and (3) of subsection 4(a) of the bill make conforming amendments to section subsections (c) and (d) of section 30 

of the Federal Power Act. 

Section 4(b) of the bill makes a conforming amendment to section 

405 of the Public Utility Regulatory Policies Act of 1978 (16 U.S.C. 

2705). 

Section 5 amends section 5 of the Federal Power Act to provide 

FERC with the authority to extend preliminary permit periods for 

up to 2 years, for a total of 5 years if FERC finds that the permittee has carried out activities under the permit in good faith and 

with reasonable diligence. 

Section 6 promotes hydropower development at non-powered 

dams and closed-loop pumped storage projects by directing FERC 

to examine through a pilot process the feasibility of establishing a 

2-year licensing process for hydropower development at non-powered dams and closed-loop pumped storage projects. The results of 

the program shall be reported to Congress. 

Section 7 directs the Secretary of Energy to complete a study of: 

(1) the technical flexibility and potential of certain new and existing pumped storage facilities to support intermittent renewable 

generation and provide grid reliability benefits; and (2) the range 

of opportunities for hydropower from conduits in the United States. 

COST AND BUDGETARY CONSIDERATIONS

The following estimate of costs of this measure has been provided 

by the Congressional Budget Office: 

S. 545—Hydropower Regulatory Efficiency Act of 2013 

Under the Federal Power Act, the Federal Energy Regulatory 

Commission (FERC) issues licenses and regulates hydroelectric facilities, regardless of size. S. 545 would amend current law to allow 

FERC to extend certain permits related to hydroelectric facilities 

and exempt small hydroelectric facilities with a generating capacity 

of 10 megawatts or less from FERC’s licensing requirements. In addition, the bill would direct the Secretary of Energy to study the 

feasibility of generating hydroelectric power using water flowing 

through conduits or at facilities that store water. Finally, the bill 

would authorize FERC to carry out pilot projects to demonstrate 

the potential of generating hydroelectric power at nonpowered 

dams and water-storage facilities. 


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Based on information from FERC and the Department of Energy 

(DOE), CBO estimates that implementing S. 545 would have no 

significant net impact on the federal budget. CBO anticipates that 

the proposed changes to FERC’s permitting and licensing requirements would reduce the commission’s workload. We also estimate 

that FERC would spend about $1 million on pilot projects authorized under the bill, assuming appropriation of the necessary 

amounts. However, because FERC recovers 100 percent of its costs 

through user fees, any change in the agency’s costs (which are controlled through annual appropriation acts) would be offset by an 

equal change in fees that the commission charges, resulting in no 

net change in federal spending. Finally, CBO estimates that any 

increased costs to DOE to prepare the study that would be required 

under S. 545 would be negligible because the proposed study is 

similar to ongoing efforts to analyze the potential for developing 

hydropower resources. Enacting S. 545 would not affect direct 

spending or revenues; therefore, pay-as-you-go procedures do not 

apply. 

S. 545 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. 

CBO has issued two cost estimates for legislation that are similar to S. 545. On January 13, 2013, CBO transmitted a cost estimate for H.R. 267, the Hydropower Regulatory Efficiency Act of 

2013, as ordered reported by the House Committee on Energy and 

Commerce on January 22, 2013. On May 14, 2013, CBO transmitted a cost estimate for H.R. 267 as ordered reported by the Senate Committee on Energy and Natural Resources. All three pieces 

of legislation are similar, and our cost estimates are the same. 

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

for Budget Analysis. 

CONGRESSIONALLY DIRECTED SPENDING

S. 545, as ordered reported, does not contain any congressionally 

directed spending items, limited tax benefits, or limited tariff benefits as defined in rule XLIV of the Standing Rules of the Senate. 

REGULATORY IMPACT EVALUATION

In compliance with paragraph 11(b) of rule XXVI of the Standing 

Rules of the Senate, the Committee makes the following evaluation 

of the regulatory impact which would be incurred in carrying out 

S. 545. 

The bill is not a regulatory measure in the sense of imposing 

Government-established standards or significant economic responsibilities on private individuals and businesses. 

No personal information would be collected in administering the 

program. Therefore, there would be no impact on personal privacy. 

Little, if any, additional paperwork would result from the enactment of H.R. 267 as ordered reported. 


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EXECUTIVE COMMUNICATIONS

The testimony provided by the Federal Energy Regulatory Commission at the April 23, 2013, Full Committee hearing on S. 545 

follows. 

TESTIMONY OF JEFF C. WRIGHT, DIRECTOR, OFFICE OF EN- ERGY PROJECTS, FEDERAL ENERGY REGULATORY COMMIS- SION

Chairman Wyden, Ranking Member Murkowski, and 

Members of the Committee: 

My name is Jeff Wright and I am the Director of the Office of Energy Projects at the Federal Energy Regulatory 

Commission (Commission or FERC). I appreciate the opportunity to appear before you to discuss the following legislation: S. 545, ‘‘Hydropower Improvement Act of 2013’’ 

and H.R. 267, ‘‘Hydropower Regulatory Efficiency Act of 

2013.’’ As a member of the Commission’s staff, the views 

I express in this testimony are my own, and not those of 

the Commission or of any individual Commissioner. 

I. BACKGROUND

The Commission regulates over 1,600 hydropower 

projects at over 2,500 dams pursuant to Part I of the Federal Power Act (FPA). Together, these projects represent 

54 gigawatts of hydropower capacity, more than half of all 

the hydropower in the United States. Hydropower is an essential part of the Nation’s energy mix and offers the benefits of an emission-free, renewable, domestic energy source 

with public and private capacity together totaling about 

seven percent of U.S. electricity generation. 

Under the FPA, non-federal hydropower projects must 

be licensed by the Commission if they: (1) are located on 

a navigable waterway; (2) occupy federal lands; (3) use 

surplus water from a federal dam; or (4) are located on 

non-navigable waters over which Congress has jurisdiction 

under the Commerce Clause, involve post-1935 construction, and affect interstate or foreign commerce. 

The FPA authorizes the Commission to issue either licenses or exemptions for projects within its jurisdiction. Licenses are generally issued for terms of between 30 and 50 

years, are renewable, and carry with them the right to exercise federal eminent domain to obtain property necessary 

for the construction, operation, and maintenance of a 

project. Exemptions are perpetual, and thus do not need to 

be renewed, but do not permit the use of eminent domain. 

Congress has established two types of exemptions. First, 

section 30 of the FPA allows the Commission to issue exemptions for projects that use, for generation, the hydroelectric potential of manmade conduits that are operated 

for the distribution of water for agricultural, municipal, or 

industrial consumption, and not primarily for the generation of electricity. Conduit projects must be located on nonfederal lands, and have a maximum capacity of 15 

megawatts (40 megawatts if the exemptee is a state or 


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local government entity). Second, in section 405(d) of the 

Public Utility Regulatory Policies Act, Congress authorized 

the Commission to grant exemptions for small hydroelectric power projects having an installed capacity of 

5,000 kilowatts or less. To qualify for this type of exemption, a project must be located at an existing dam that 

does not require construction or the enlargement of an impoundment, or must use the hydropower potential of a natural water feature, such as a waterfall. Both types of exemptions are subject to mandatory fish and wildlife conditions provided by federal and state resource agencies. 

The Commission has established three licensing processes, with the intent of allowing parties to select the process that is best suited to individual proceedings. The integrated licensing process (ILP) frontloads issue identification and environmental study to the period before an application is filed, and is thus well-suited to complex cases 

with substantial issues. The alternative licensing process 

(ALP) allows participants significant flexibility to tailor licensing procedures in a manner that may work well for 

unique cases. The traditional licensing process (TLP), in 

which environmental and other work can occur after the 

application is filed, appears to work best for less controversial matters. The TLP may be the process that is best-suited for many simple cases involving exemptions or small, 

low impact licenses. Commission staff has also developed 

a pilot licensing process for marine and hydrokinetic 

projects in which, with the assistance of federal and state 

resource agencies, a project can be licensed in as little as 

six months. 

It is extremely important to note that project developers 

and other stakeholders, not the Commission, in most instances play the leading role in determining project success and whether the regulatory process will be short or 

long, simple or complex. The first key issue is site selection 

and proposed project operation. For example, the processing of applications tends to be expedited when applicants propose projects that: (1) are located at an existing 

dam where hydropower facilities do not currently exist, (2) 

would result in little change to water flow and use, (3) are 

unlikely to affect threatened and endangered species and 

are unlikely to need fish passage facilities, and (4) involve 

lands and facilities that are already owned by the applicant. To the extent that a proposed project, even one of 

small size, raises concerns about water use and other environmental issues, it may be difficult for the Commission to 

quickly process an application. 

Another, and related, factor is the extent to which 

project developers reach out to affected stakeholders. If a 

developer contacts concerned citizens, local, state, and federal agencies, Indian tribes, and environmental organizations, and works with them to develop consensus as to 

what information is needed to understand the impacts of 

a project and what environmental measures may be appropriate, and to develop support for the project, the applicaVerDate Mar 15 2010 05:26 Jun 06, 2013 Jkt 029010 PO 00000 Frm 00009 Fmt 6659 Sfmt 6969 E:\HR\OC\SR036.XXX SR036

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tion and review process is likely to be simpler and quicker. 

Where a project comes as a surprise to affected entities or 

where a developer does not respond to expressed concerns, 

the Commission’s job becomes much more difficult. 

A final, and again related, matter is the development of 

the full record that the Commission needs to act on an application. A potential applicant needs to work with Commission staff and with federal and state resource agencies 

and other stakeholders to determine what information is 

needed to support an application, and to provide the Commission with a complete application. Where Commission 

staff or other stakeholders must ask an applicant to provide information that is missing from an application, the 

regulatory process slows down. 

The other entities with roles in the licensing and exemption process regarding small hydropower projects are also 

key to its success. The quickest, most efficient process can 

be achieved only where federal and state agencies, as well 

as other stakeholders, devote the resources early on to 

help project review move ahead, and where they display 

the flexibility to look at the merits of individual projects 

and the willingness to shorten the process in appropriate 

cases. Commission staff is dedicated to making the regulatory process as short and cost-effective as possible. We 

can only do that where applicants, resource agencies, and 

other stakeholders serve as willing partners in the process. 

II. COMMISSION EFFORTS REGARDING SMALL AND INNOVATIVE

PROJECTS

The majority of the hydropower projects regulated by the 

Commission are small projects, with about 70 percent having an installed capacity of 5 megawatts (MW) or less. In 

recent years, the Commission has seen a greatly increased 

interest in small hydropower projects at existing dams, in 

innovative marine and hydrokinetic projects, and in 

pumped storage projects, particularly closed-loop pumped 

storage, which does not involve regular water withdrawals 

from rivers or other water sources. The Commission has 

responded by implementing a number of measures to facilitate efficient review of project proposals. In 2007, in 

order to provide personalized, responsive service to entities 

seeking to develop small hydropower projects, Commission 

staff established a dedicated phone line and email address 

for inquiries on small hydropower, developed a brochure to 

provide guidance to potential developers of small, low impact hydropower projects, and put these resources and a 

list of frequently-asked questions on the Commission’s 

website. 

In light of the continued growing interest in such development, the Commission held a technical conference on 

December 2, 2009, at its Washington, D.C. headquarters to 

explore issues related to licensing, and exempting from licensing, small non-federal hydropower projects in the U.S. 

The technical conference generated discussion on recommendations that could improve the process for authorVerDate Mar 15 2010 05:26 Jun 06, 2013 Jkt 029010 PO 00000 Frm 00010 Fmt 6659 Sfmt 6969 E:\HR\OC\SR036.XXX SR036

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izing small hydropower projects. In addition to insights received from the panelists and attendees at the technical 

conference, written comments were solicited and over 40 

comment letters were received from industry representatives; federal, state, and local agencies; private citizens; 

and nongovernmental organizations. At the Commission’s 

April 15, 2010 meeting, staff reported on the conference 

and the comments received, and presented an action plan 

to assist and expedite the review of small hydropower proposals. The action plan adopted the following immediate 

changes: (1) adding new web-based resources to the Commission’s website (www.ferc.gov) to make it easier for applicants to understand and complete the licensing process; 

(2) updating or creating Memoranda of Understanding 

(MOUs) with other agencies to improve coordination; (3) 

continuing to maintain our small hydropower contact list 

on our web site to answer applicant questions; and (4) educating potential small hydropower developers through a 

new education and outreach program. The Commission 

has, under its small hydro initiative, held numerous outreach meetings with small hydropower developers and interested stakeholders, and implemented web based tools, 

such as application templates and application checklists, 

which potential applicants can use to prepare their applications. The small hydro website further contains guidance 

and sample letters that applicants can use to obtain waivers from fish and wildlife agencies for part of the prefiling 

consultation process. The Commission staff has also relaxed some of the standards, under Section 4.39 of its regulations, for exhibits and drawings for exemption applications. For those applicants that have filed complete and 

adequate applications, and for which the Commission has 

determined that impacts are minimal, the Commission has 

reduced the public notice period from 60 days to 30 days 

and the reply period from 45 days to 15 days. A number 

of conduit and small hydro exemptions have been approved 

in as short as two months and original licenses in as short 

as 6 months from the date that an application has been 

deemed complete. 

Since the April 15, 2010 Commission meeting, we have 

updated our MOU with the U.S. Army Corps of Engineers 

(March 2011) and entered into an MOU with the U.S. 

Coast Guard (March 2013); launched a small hydro program website (August 2010); participated in small hydro 

workshops across the U.S.; conducted webinars on our 

small hydro website (November 2010, December 2010, 

June 2011, and January 2012); and updated our small 

hydro brochure. Upcoming outreach efforts will include 

participating on a small hydro panel at the National Hydropower Association’s annual conference in Washington, 

D.C., working with the state of Colorado on providing state 

guidance documents on our small hydro licensing process; 

and updating our small hydro licensing web site in response to user input. As a result of these efforts, consultation has improved, applications are more complete, and apVerDate Mar 15 2010 05:26 Jun 06, 2013 Jkt 029010 PO 00000 Frm 00011 Fmt 6659 Sfmt 6969 E:\HR\OC\SR036.XXX SR036

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plication processing times have been reduced. With this 

background, I will turn to the draft legislation. 

III. HYDROPOWER IMPROVEMENT ACT OF 2013 (S. 545) AND HY- DROPOWER REGULATORY EFFICIENCY ACT OF 2013 (H.R. 267)

The Hydropower Improvement Act of 2013 and the Hydropower Regulatory Efficiency Act of 2013 have the commendable goal of increasing hydropower production in the 

United States. I strongly support this goal, and offer comments on specific sections of the draft legislation. 

A. Section 5 of S. 545 and Section 6 of H.R. 267 

Section 5 of S. 545 and Section 6 of H.R. 267 would require the Commission to investigate the feasibility of implementing a two-year licensing process, in particular, 

with respect to hydropower development at existing, nonpowered dams, and for closed-loop pumped storage 

projects. 

I support the goal of an expedited licensing process. Indeed, as I have discussed, it is Commission staff’s goal to 

act on all license applications as quickly as possible, and 

the Commission has established processes that allow for 

great flexibility and efficiency. I am thus not certain 

whether an additional licensing process is necessary. During the last few years, we have been able to issue some licenses in a matter of a few months, where the project proponent had selected a site wisely, stakeholders had agreed 

on information needs, and state and federal agencies performed their responsibilities quickly. Moreover, the Commission operates under significant constraints imposed by 

the FPA, and by other legislation affecting the licensing 

process—the Clean Water Act, Coastal Zone Management 

Act, Endangered Species Act, and National Historic Preservation Act among them. In the absence of the ability to 

waive sections of the FPA and other acts, or to set enforceable schedules in licensing proceedings, it is not clear that 

the Commission, under its existing authorities, can mandate a shortened process. 

B. Section 6 of S. 545 and Section 4 of H.R. 267 

Section 6 of S. 545 and Section 4 of H.R. 267 would establish various measures to promote conduit hydropower 

projects. This goal is consistent with Commission policy 

and has been a major focus of Commission staff’s effort in 

the last few years. These sections would amend section 30 

of the FPA to establish a procedure whereby conduit 

projects with an installed capacity of 5 MW or less would 

not be required to be licensed, provided the applicant 

makes a showing that the project qualifies as a conduit 

project. These sections would also allow the Commission to 

grant conduit exemptions on federal lands and would permit the Commission to issue conduit exemptions for those 

projects with an installed capacity of up to 40 MW. This 

proposed upper limit would apply to non-municipal, as 

well as municipal applicants. I support these provisions, 


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which should serve to increase the amount of electric generation derived from conduits. 

C. Section 7 of S. 545 and Section 3 of H.R. 267 

Section 7 of S. 545 and Section 3 of H.R. 267 would 

amend Section 405(d) of the Public Utility Regulatory Policies Act of 1978 to increase the installed capacity of a 

project to which the Commission could grant a small hydropower exemption from 5,000 to 10,000 kilowatts. This 

change would promote the development of small hydropower at the nation’s existing non-powered dams by allowing a larger pool of small, low-impact projects to qualify for 

small hydropower exemptions. Such exemptions are attractive to developers in that the exemptions are perpetual, 

and thus the developer need not expend the cost and effort 

to renew the authorization as is the case with licenses. I, 

therefore, support this provision. 

D. Section 8 of S. 545 and Section 5 of H.R. 267 

Section 8 of S. 545 and Section 5 of H.R. 267 would 

amend the FPA to authorize the Commission to extend the 

term of a preliminary permit issued under FPA Section 5 

once for up to two years. Preliminary permits grant the 

permittee a ‘‘first-to-file’’ preference with respect to license 

applications for projects being studied under a permit. 

Commission staff has heard anecdotally that developers 

are concerned that the need for environmental studies in 

some instances makes it difficult to complete a license application within the current maximum three-year term of 

a permit, with the result that a developer which has invested substantial time and money studying a project may 

face the possibility of losing its project based on competition from other entities—particularly those with statutorily-granted municipal preference—if it needs to seek a 

subsequent permit. I therefore support the proposed FPA 

amendment, which could ameliorate this problem. It might 

be worth considering, as an alternative, authorizing the 

Commission to issue permits for terms of up to five years, 

which could avoid the need for developers to go through 

the process of seeking an extension. 

E. Section 9 of S. 545 and Section 7 of H.R. 267 

Section 9 of S. 545 and Section 7 of H.R. 267 would require the Department of Energy to study the flexibility 

and reliability that pumped storage facilities can provide 

and the opportunities and potential generation from conduits. While I cannot speak for the Department of Energy, 

I support this research. 

IV. CONCLUSION

There is a great deal of potential for the development of 

additional hydropower projects throughout the country, including small projects and marine and hydrokinetic 

projects. Working within the authority given it by Congress, the Commission continues to adapt its existing, 


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flexible procedures to facilitate the review and, where appropriate, the approval of such projects. Commission staff 

remains committed to exploring with project developers, its 

sister federal agencies, Indian tribes, the states, local government, and other stakeholders every avenue for the responsible development of our nation’s hydropower potential. The legislation under consideration will, as I have testified, assist in realizing that potential. 

This concludes my remarks. I would be pleased to answer any questions you may have. 

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by the bill S. 

545, as ordered reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is 

printed in italic, existing law in which no change is proposed is 

shown in roman): 

PUBLIC UTILITY REGULATORY POLICIES ACT OF 1978 

(Public Law 95–617, as amended) 

AN ACT To suspend until the close of June 30, 1980, the duty on certain 

doxorubicin hydrochloride antibiotics. 

* * * * * * * 

TITLE IV—SMALL HYDROELECTRIC POWER 

PROJECTS 

* * * * * * * 

SEC. 405. SIMPLIFIED AND EXPEDITIOUS LICENSING PROCEDURES. 

(a) ESTABLISHMENT OF PROGRAM.—The Commission shall establish, in such manner as the Commission deems appropriate, consistent with the applicable provisions of law, a program to use simple and expeditious licensing procedures under the Federal Power 

Act for small hydroelectric power projects in connection with existing dams. 

* * * * * * * 

(d) EXEMPTIONS FROM LICENSING REQUIREMENTS IN CERTAIN

CASES.—The Commission may in its discretion (by rule or order) 

grant an exemption in whole or in part from the requirements (including the licensing requirements) of part I of the Federal Power 

Act to small hydroelectric power projects having a proposed installed capacity of ø5,000¿ 10,000 kilowatts or less, on a case-bycase basis or on the basis of classes or categories of projects, subject 

to the same limitations (to ensure protection for fish and wildlife 

as well as other environmental concerns) as those which are set 

forth in subsections (c) and (d) of section 30 of the Federal Power 

Act with respect to determinations made and exemptions granted 

under øsubsection (a) of such section 30¿ subsection (b) of such section 30; and subsections (c) and (d) of such section 30 shall apply 

with respect to actions taken and exemptions granted under this 

subsection. Except as specifically provided in this subsection, the 


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granting of an exemption to a project under this subsection shall 

in no case have the effect of waiving or limiting the application (to 

such project) of the second sentence of subsection (b) of this section. 

* * * * * * * 

FEDERAL POWER ACT 

(The Act of June 10, 1920; 41 Stat. 1063, Chapter 685) 

* * * * * * * 

PART I 

* * * * * * * 

SEC. 5. (a) Each preliminary permit issued under this Part shall 

be for the sole purpose of maintaining priority of application for a 

license under the terms of this Act for such period or periods, not 

exceeding a total of three years, as in the discretion of the Commission may be necessary for making examinations and surveys, for 

preparing maps, plans, specifications, and estimates, and for making financial arrangements. 

(b) The Commission may extend the period of a preliminary permit once for not more than 2 additional years beyond the 3 years 

permitted by subsection (a) if the Commission finds that the permittee has carried out activities under such permit in good faith 

and with reasonable diligence. 

(c) Each such permit shall set forth the conditions under which 

priority shall be maintained. 

(d) Such permits shall not be transferable, and may be canceled 

by order of the Commission upon failure of permittees to comply 

with the conditions thereof or for other good cause shown after notice and opportunity for hearing. 

* * * * * * * 

SEC. 30. ø(a) Except as provided in subsection (b) or (c), the Commission may grant an exemption in whole or in part from the requirements of this part, including any license requirements contained in this part, to any facility (not including any dam or other 

impoundment) constructed, operated, or maintained for the generation of electric power which the Commission determines, by rule or 

order— 

ø(1) is located on non-Federal lands, and 

ø(2) utilizes for such generation only the hydroelectric potential of a manmade conduit, which is operated for the distribution of water for agricultural, municipal, or industrial consumption and not primarily for the generation of electricity. 

ø(b) The Commission may not grant any exemption under subsection (a) to any facility the installed capacity of which exceeds 15 

megawatts (40 megawatts in the case of a facility constructed, operated, and maintained by an agency or instrumentality of a State 

or local government solely for water supply for municipal purposes.¿ 

(a)(1) A qualifying conduit hydropower facility shall not be required to be licensed under this part. 

(2)(A) Any person, State, or municipality proposing to construct a 

qualifying conduit hydropower facility shall file with the CommisVerDate Mar 15 2010 05:26 Jun 06, 2013 Jkt 029010 PO 00000 Frm 00015 Fmt 6659 Sfmt 6603 E:\HR\OC\SR036.XXX SR036

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sion a notice of intent to construct such facility. The notice shall include sufficient information to demonstrate that the facility meets 

the qualifying criteria. 

(B) Not later than 15 days after receipt of a notice of intent filed 

under subparagraph (A), the Commission shall— 

(i) make an initial determination as to whether the facility 

meets the qualifying criteria; and 

(ii) if the Commission makes an initial determination, pursuant to clause (i), that the facility meets the qualifying criteria, 

publish public notice of the notice of intent filed under subparagraph (A). 

(C) If, not later than 45 days after the date of publication of the 

public notice described in subparagraph (B)(ii)— 

(i) an entity contests whether the facility meets the qualifying 

criteria, the Commission shall promptly issue a written determination as to whether the facility meets such criteria; or 

(ii) no entity contests whether the facility meets the qualifying 

criteria, the facility shall be deemed to meet such criteria. 

(3) For purposes of this section: 

(A) 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. 

(B) The term ‘‘qualifying conduit hydropower facility’’ means 

a facility (not including any dam or other impoundment) that 

is determined or deemed under paragraph (2)(C) to meet the 

qualifying criteria. 

(C) The term ‘‘qualifying criteria’’ means, with respect to a facility— 

(i) the facility is constructed, operated, or maintained for 

the generation of electric power and uses for such generation only the hydroelectric potential of a non-federally 

owned conduit; 

(ii) the facility has an installed capacity that does not exceed 5 megawatts; and 

(iii) on or before the date of enactment of the Hydropower 

Regulatory Efficiency Act of 2013, the facility is not licensed under, or exempted from the license requirements 

contained in, this part. 

(b) Subject to subsection (c), the Commission may grant an exemption in whole or in part from the requirements of this part, including any license requirements contained in this part, to any facility (not including any dam or other impoundment) constructed, 

operated, or maintained for the generation of electric power which 

the Commission determines, by rule or order— 

(1) utilizes for such generation only the hydroelectric potential 

of a conduit; and 

(2) has an installed capacity that does not exceed 40 

megawatts. 

(c) In making the determination under øsubsection (a)¿ subsection (b) of this section the Commission shall consult with the 

United States Fish and Wildlife Service, National Marine Fisheries 

Service, and the State agency exercising administration over the 

fish and wildlife resources of the State in which the facility is or 


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will be located, in the manner provided by the Fish and Wildlife 

Coordination Act (16 U.S.C. 661, et seq.), and shall include in any 

such exemption— 

(1) such terms and conditions as the Fish and Wildlife Service, National Marine Fisheries Service, and the State agency 

each determine are appropriate to prevent loss of, or damage 

to, such resources and to otherwise carry out the purposes of 

such Act, and 

(2) such terms and conditions as the Commission deems appropriate to insure that such facility continues to comply with 

the provisions of this section and terms and conditions included in any such exemption. 

(d) Any violation of a term or condition of any exemption granted 

under øsubsection (a)¿ subsection b of this section shall be treated 

as a violation of a rule or order of the Commission under this chapter. 

* * * * * * * 

Æ 


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