II

106TH CONGRESS

1ST SESSION S. 422

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

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:

7 ‘‘SEC. 32. ALASKA STATE JURISDICTION OVER SMALL HY8 DROELECTRIC PROJECTS.

9 ‘‘(a) DISCONTINUANCE OF REGULATION BY THE

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

11 the Commission shall discontinue exercising licensing and
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1 regulatory authority under this Part over qualifying

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

3 on which the Commission certifies that the State of Alaska

4 has in place a regulatory program for water-power devel5 opment that—

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

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

8 same extent provided by licensing and regulation by

9 the Commission under this Part and other applicable

10 Federal laws, including the Endangered Species Act

11 (16 U.S.C. 1531 et seq.) and the Fish and Wildlife

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

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

14 of—

15 ‘‘(A) energy conservation;

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

17 to, and enhancement of, fish and wildlife (in18 cluding related spawning grounds and habitat);

19 ‘‘(C) the protection of recreational oppor20 tunities,

21 ‘‘(D) the preservation of other aspects of

22 environmental quality,

23 ‘‘(E) the interests of Alaska Natives, and
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1 ‘‘(F) other beneficial public uses, including

2 irrigation, flood control, water supply, and navi3 gation; and

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

5 project works—

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

7 operation by a licensee at its own expense of

8 such lights and signals as may be directed by

9 the Secretary of the Department in which the

10 Coast Guard is operating, and such fishways as

11 may be prescribed by the Secretary of the Inte12 rior or the Secretary of Commerce, as appro13 priate;

14 ‘‘(B) the operation of any navigation facili15 ties which may be constructed as part of any

16 project to be controlled at all times by such rea17 sonable rules and regulations as may be made

18 by the Secretary of the Army; and

19 ‘‘(C) conditions for the protection, mitiga20 tion, and enhancement of fish and wildlife

21 based on recommendations received pursuant to

22 the Fish and Wildlife Coordination Act (16

23 U.S.C. 661 et seq.) from the National Marine

24 Fisheries Service, the United States Fish and
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1 Wildlife Service, and State fish and wildlife

2 agencies.

3 ‘‘(b) DEFINITION OF ‘QUALIFYING PROJECT

4 WORKS’.—For purposes of this section, the term ‘qualify5 ing project works’ means project works—

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

7 under this Part or exempted from licensing under

8 this Part or section 405 of the Public Utility Regu9 latory Policies Act of 1978 prior to the date of en10 actment of this section;

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

12 application, or an application for an exemption from

13 licensing has not been accepted for filing by the

14 Commission prior to the date of enactment of sub15 section (c) (unless such application is withdrawn at

16 the election of the applicant);

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

18 production capacity of 5,000 kilowatts or less;

19 ‘‘(4) that are located entirely within the bound20 aries of the State of Alaska; and

21 ‘‘(5) that are located in whole or in part on any

22 Indian reservation, a conservation system unit (as

23 defined in section 102(4) of the Alaska National In24 terest Lands Conservation Act (16 U.S.C.

25 3102(4))), or segment of a river designated for
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1 study for addition to the Wild and Scenic Rivers

2 System.

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

4 of nonqualifying project works that would be a qualifying

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

6 licensed (or exempted from licensing) by the Commission

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

8 project may in its discretion elect to make the project sub9 ject to licensing and regulation by the State of Alaska

10 under this section.

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

12 respect to projects located in whole or in part on a reserva13 tion, a conservation system unit, or the public lands, a

14 State license or exemption from licensing shall be subject

15 to—

16 ‘‘(1) the approval of the Secretary having juris17 diction over such lands; and

18 ‘‘(2) such conditions as the Secretary may pre19 scribe.

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

21 The Commission shall consult with the Secretary of the

22 Interior, the Secretary of Agriculture, and the Secretary

23 of Commerce before certifying the State of Alaska’s regu24 latory program.
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1 ‘‘(f) APPLICATION OF FEDERAL LAWS.—Nothing in

2 this section shall preempt the application of Federal envi3 ronmental, natural resources, or cultural resources protec4 tion laws according to their terms.

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

6 of Alaska shall notify the Commission not later than 30

7 days after making any significant modification to its regu8 latory program. The Commission shall periodically review

9 the State’s program to ensure compliance with the provi10 sions of this section.

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

12 Notwithstanding subsection (a), the Commission shall re13 assert its licensing and regulatory authority under this

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

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

16 section.

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

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

19 State of Alaska, the Commission shall within 30

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

21 regulatory program for water-power development to

22 determine whether it complies with the requirements

23 of subsection (a).

24 ‘‘(2) The Commission’s review required by

25 paragraph (1) shall be completed within one year of
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1 initiation, and the Commission shall within 30 days

2 thereafter issue a final order determining whether or

3 not the State of Alaska’s regulatory program for

4 water-power development complies with the require5 ments of subsection (a).

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

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

8 Alaska’s regulatory program for water-power devel9 opment shall be deemed to be in compliance with

10 subsection (a).’’.

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