II

Calendar No. 65

106TH CONGRESS

1ST SESSION S. 422

[Report No. 106–28]

To provide for Alaska state jurisdiction over small hydroelectric projects.

IN THE SENATE OF THE UNITED STATES

FEBRUARY 11, 1999

Mr. MURKOWSKI introduced the following bill; which was read twice and

referred to the Committee on Energy and Natural Resources

MARCH 19, 1999

Reported by Mr. MURKOWSKI, with an amendment

[Insert the part printed in italic]

A BILL

To provide for Alaska state jurisdiction over small

hydroelectric projects.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. ALASKA STATE JURISDICTION OVER SMALL HY4 DROELECTRIC PROJECTS.

5 Part I of the Federal Power Act (16 U.S.C. 792 et

6 seq.) is amended by adding at the end the following:
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S 422 RS

1 ‘‘SEC. 32. ALASKA STATE JURISDICTION OVER SMALL HY2 DROELECTRIC PROJECTS.

3 ‘‘(a) DISCONTINUANCE OF REGULATION BY THE

4 COMMISSION.—Notwithstanding sections 4(e) and 23(b),

5 the Commission shall discontinue exercising licensing and

6 regulatory authority under this Part over qualifying

7 project works in the State of Alaska, effective on the date

8 on which the Commission certifies that the State of Alaska

9 has in place a regulatory program for water-power devel10 opment that—

11 ‘‘(1) protects the public interest, the purposes

12 listed in paragraph (2), and the environment to the

13 same extent provided by licensing and regulation by

14 the Commission under this Part and other applicable

15 Federal laws, including the Endangered Species Act

16 (16 U.S.C. 1531 et seq.) and the Fish and Wildlife

17 Coordination Act (16 U.S.C. 661 et seq.);

18 ‘‘(2) gives equal consideration to the purposes

19 of—

20 ‘‘(A) energy conservation;

21 ‘‘(B) the protection, mitigation of damage

22 to, and enhancement of, fish and wildlife (in23 cluding related spawning grounds and habitat);

24 ‘‘(C) the protection of recreational oppor25 tunities,
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1 ‘‘(D) the preservation of other aspects of

2 environmental quality,

3 ‘‘(E) the interests of Alaska Natives, and

4 ‘‘(F) other beneficial public uses, including

5 irrigation, flood control, water supply, and navi6 gation; and

7 ‘‘(3) requires, as a condition of a license for any

8 project works—

9 ‘‘(A) the construction, maintenance, and

10 operation by a licensee at its own expense of

11 such lights and signals as may be directed by

12 the Secretary of the Department in which the

13 Coast Guard is operating, and such fishways as

14 may be prescribed by the Secretary of the Inte15 rior or the Secretary of Commerce, as appro16 priate;

17 ‘‘(B) the operation of any navigation facili18 ties which may be constructed as part of any

19 project to be controlled at all times by such rea20 sonable rules and regulations as may be made

21 by the Secretary of the Army; and

22 ‘‘(C) conditions for the protection, mitiga23 tion, and enhancement of fish and wildlife

24 based on recommendations received pursuant to

25 the Fish and Wildlife Coordination Act (16
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1 U.S.C. 661 et seq.) from the National Marine

2 Fisheries Service, the United States Fish and

3 Wildlife Service, and State fish and wildlife

4 agencies.

5 ‘‘(b) DEFINITION OF ‘QUALIFYING PROJECT

6 WORKS’.—For purposes of this section, the term ‘quali7 fying project works’ means project works—

8 ‘‘(1) that are not part of a project licensed

9 under this Part or exempted from licensing under

10 this Part or section 405 of the Public Utility Regu11 latory Policies Act of 1978 prior to the date of en12 actment of this section;

13 ‘‘(2) for which a preliminary permit, a license

14 application, or an application for an exemption from

15 licensing has not been accepted for filing by the

16 Commission prior to the date of enactment of sub17 section (c) (unless such application is withdrawn at

18 the election of the applicant);

19 ‘‘(3) that are part of a project that has a power

20 production capacity of 5,000 kilowatts or less;

21 ‘‘(4) that are located entirely within the bound22 aries of the State of Alaska; and

23 ‘‘(5) that are not located in whole or in part on

24 any Indian reservation, a conservation system unit

25 (as defined in section 102(4) of the Alaska National
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1 Interest Lands Conservation Act (16 U.S.C.

2 3102(4))), or segment of a river designated for

3 study for addition to the Wild and Scenic Rivers

4 System.

5 ‘‘(c) ELECTION OF STATE LICENSING.—In the case

6 of nonqualifying project works that would be a qualifying

7 project works but for the fact that the project has been

8 licensed (or exempted from licensing) by the Commission

9 prior to the enactment of this section, the licensee of such

10 project may in its discretion elect to make the project sub11 ject to licensing and regulation by the State of Alaska

12 under this section.

13 ‘‘(d) PROJECT WORKS ON FEDERAL LANDS.—With

14 respect to projects located in whole or in part on a reserva15 tion, a conservation system unit, or the public lands, a

16 State license or exemption from licensing shall be subject

17 to—

18 ‘‘(1) the approval of the Secretary having juris19 diction over such lands; and

20 ‘‘(2) such conditions as the Secretary may pre21 scribe.

22 ‘‘(e) CONSULTATION WITH AFFECTED AGENCIES.—

23 The Commission shall consult with the Secretary of the

24 Interior, the Secretary of Agriculture, and the Secretary
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1 of Commerce before certifying the State of Alaska’s regu2 latory program.

3 ‘‘(f) APPLICATION OF FEDERAL LAWS.—Nothing in

4 this section shall preempt the application of Federal envi5 ronmental, natural resources, or cultural resources protec6 tion laws according to their terms.

7 ‘‘(g) OVERSIGHT BY THE COMMISSION.—The State

8 of Alaska shall notify the Commission not later than 30

9 days after making any significant modification to its regu10 latory program. The Commission shall periodically review

11 the State’s program to ensure compliance with the provi12 sions of this section.

13 ‘‘(h) RESUMPTION OF COMMISSION AUTHORITY.—

14 Notwithstanding subsection (a), the Commission shall re15 assert its licensing and regulatory authority under this

16 Part if the Commission finds that the State of Alaska has

17 not complied with one or more of the requirements of this

18 section.

19 ‘‘(i) DETERMINATION BY THE COMMISSION.—

20 ‘‘(1) Upon application by the Governor of the

21 State of Alaska, the Commission shall within 30

22 days commence a review of the State of Alaska’s

23 regulatory program for water-power development to

24 determine whether it complies with the requirements

25 of subsection (a).
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1 ‘‘(2) The Commission’s review required by

2 paragraph (1) shall be completed within one year of

3 initiation, and the Commission shall within 30 days

4 thereafter issue a final order determining whether or

5 not the State of Alaska’s regulatory program for

6 water-power development complies with the require7 ments of subsection (a).

8 ‘‘(3) If the Commission fails to issue a final

9 order in accordance with paragraph (2), the State of

10 Alaska’s regulatory program for water-power devel11 opment shall be deemed to be in compliance with

12 subsection (a).’’.

Æ
Calendar No. 65

106TH CONGRESS

1ST SESSION S. 422

[Report No. 106–28]

A BILL

To provide for Alaska state jurisdiction over small

hydroelectric projects.

MARCH 19, 1999

Reported with an amendment