I

106TH CONGRESS

1ST SESSION S. 422

IN THE HOUSE OF REPRESENTATIVES

APRIL 12, 1999

Referred to the Committee on Commerce

AN ACT

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,
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1 SECTION 1. ALASKA STATE JURISDICTION OVER SMALL HY2 DROELECTRIC PROJECTS.

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

4 seq.) is amended by adding at the end the following:

5 ‘‘SEC. 32. ALASKA STATE JURISDICTION OVER SMALL HY6 DROELECTRIC PROJECTS.

7 ‘‘(a) DISCONTINUANCE OF REGULATION BY THE

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

9 the Commission shall discontinue exercising licensing and

10 regulatory authority under this Part over qualifying

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

12 on which the Commission certifies that the State of Alaska

13 has in place a regulatory program for water-power devel14 opment that—

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

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

17 same extent provided by licensing and regulation by

18 the Commission under this Part and other applicable

19 Federal laws, including the Endangered Species Act

20 (16 U.S.C. 1531 et seq.) and the Fish and Wildlife

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

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

23 of—

24 ‘‘(A) energy conservation;
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1 ‘‘(B) the protection, mitigation of damage

2 to, and enhancement of, fish and wildlife (in3 cluding related spawning grounds and habitat);

4 ‘‘(C) the protection of recreational oppor5 tunities,

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

7 environmental quality,

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

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

10 irrigation, flood control, water supply, and navi11 gation; and

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

13 project works—

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

15 operation by a licensee at its own expense of

16 such lights and signals as may be directed by

17 the Secretary of the Department in which the

18 Coast Guard is operating, and such fishways as

19 may be prescribed by the Secretary of the Inte20 rior or the Secretary of Commerce, as appro21 priate;

22 ‘‘(B) the operation of any navigation facili23 ties which may be constructed as part of any

24 project to be controlled at all times by such rea-
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1 sonable rules and regulations as may be made

2 by the Secretary of the Army; and

3 ‘‘(C) conditions for the protection, mitiga4 tion, and enhancement of fish and wildlife

5 based on recommendations received pursuant to

6 the Fish and Wildlife Coordination Act (16

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

8 Fisheries Service, the United States Fish and

9 Wildlife Service, and State fish and wildlife

10 agencies.

11 ‘‘(b) DEFINITION OF ‘QUALIFYING PROJECT

12 WORKS’.—For purposes of this section, the term ‘quali13 fying project works’ means project works—

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

15 under this Part or exempted from licensing under

16 this Part or section 405 of the Public Utility Regu17 latory Policies Act of 1978 prior to the date of en18 actment of this section;

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

20 application, or an application for an exemption from

21 licensing has not been accepted for filing by the

22 Commission prior to the date of enactment of sub23 section (c) (unless such application is withdrawn at

24 the election of the applicant);
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1 ‘‘(3) that are part of a project that has a power

2 production capacity of 5,000 kilowatts or less;

3 ‘‘(4) that are located entirely within the bound4 aries of the State of Alaska; and

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

6 any Indian reservation, a conservation system unit

7 (as defined in section 102(4) of the Alaska National

8 Interest Lands Conservation Act (16 U.S.C.

9 3102(4))), or segment of a river designated for

10 study for addition to the Wild and Scenic Rivers

11 System.

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

13 of nonqualifying project works that would be a qualifying

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

15 licensed (or exempted from licensing) by the Commission

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

17 project may in its discretion elect to make the project sub18 ject to licensing and regulation by the State of Alaska

19 under this section.

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

21 respect to projects located in whole or in part on a reserva22 tion, a conservation system unit, or the public lands, a

23 State license or exemption from licensing shall be subject

24 to—
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1 ‘‘(1) the approval of the Secretary having juris2 diction over such lands; and

3 ‘‘(2) such conditions as the Secretary may pre4 scribe.

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

6 The Commission shall consult with the Secretary of the

7 Interior, the Secretary of Agriculture, and the Secretary

8 of Commerce before certifying the State of Alaska’s regu9 latory program.

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

11 this section shall preempt the application of Federal envi12 ronmental, natural resources, or cultural resources protec13 tion laws according to their terms.

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

15 of Alaska shall notify the Commission not later than 30

16 days after making any significant modification to its regu17 latory program. The Commission shall periodically review

18 the State’s program to ensure compliance with the provi19 sions of this section.

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

21 Notwithstanding subsection (a), the Commission shall re22 assert its licensing and regulatory authority under this

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

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

25 section.
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1 ‘‘(i) DETERMINATION BY THE COMMISSION.—

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

3 State of Alaska, the Commission shall within 30

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

5 regulatory program for water-power development to

6 determine whether it complies with the requirements

7 of subsection (a).

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

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

10 initiation, and the Commission shall within 30 days

11 thereafter issue a final order determining whether or

12 not the State of Alaska’s regulatory program for

13 water-power development complies with the require14 ments of subsection (a).

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

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

17 Alaska’s regulatory program for water-power devel18 opment shall be deemed to be in compliance with

19 subsection (a).’’.

Passed the Senate March 25, 1999.

Attest: GARY SISCO,

Secretary.