II 

Calendar No. 663 

115TH CONGRESS 

2D SESSION H. R. 1967 

[Report No. 115–377] 

IN THE SENATE OF THE UNITED STATES 

JUNE 28, 2017 

Received; read twice and referred to the Committee on Energy and Natural 

Resources 

NOVEMBER 26, 2018 

Reported by Ms. MURKOWSKI, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

AN ACT 

To amend the Reclamation Project Act of 1939 to authorize 

pumped storage hydropower development utilizing multiple Bureau of Reclamation reservoirs. 

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Bureau of Reclamation 

5 Pumped Storage Hydropower Development Act’’. 


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1 SEC. 2. AUTHORITY FOR PUMPED STORAGE HYDROPOWER 

2 DEVELOPMENT UTILIZING MULTIPLE BU3 REAU OF RECLAMATION RESERVOIRS. 

4 Section 9(c)(1) of the Reclamation Project Act of 

5 1939 (43 U.S.C. 485h(c)(1)) is amended by inserting 

6 ‘‘and pumped storage hydropower development exclusively 

7 utilizing Bureau of Reclamation reservoirs’’ after ‘‘includ8 ing small conduit hydropower development’’. 

9 SECTION 1. SHORT TITLE. 

10 This Act may be cited as the ‘‘Bureau of Reclamation 

11 Pumped Storage Hydropower Development Act’’. 

12 SEC. 2. AUTHORITY FOR PUMPED STORAGE HYDROPOWER 

13 DEVELOPMENT USING MULTIPLE BUREAU OF 

14 RECLAMATION RESERVOIRS. 

15 Section 9(c) of the Reclamation Project Act of 1939 

16 (43 U.S.C. 485h(c)) is amended— 

17 (1) in paragraph (1), in the fourth sentence, by 

18 striking ‘‘, including small conduit hydropower devel19 opment’’ and inserting ‘‘and reserve to the Secretary 

20 the exclusive authority to develop small conduit hy21 dropower using Bureau of Reclamation facilities and 

22 pumped storage hydropower exclusively using Bureau 

23 of Reclamation reservoirs’’; and 

24 (2) in paragraph (8), by striking ‘‘has been filed 

25 with the Federal Energy Regulatory Commission as 

26 of August 9, 2013’’ and inserting ‘‘was filed with the 


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1 Federal Energy Regulatory Commission before August 

2 9, 2013, and is still pending’’. 

3 SEC. 3. LIMITATIONS ON ISSUANCE OF CERTAIN LEASES OF 

4 POWER PRIVILEGE. 

5 (a) DEFINITIONS.—In this section: 

6 (1) COMMISSION.—The term ‘‘Commission’’ 

7 means the Federal Energy Regulatory Commission. 

8 (2) DIRECTOR.—The term ‘‘Director’’ means the 

9 Director of the Office of Hearings and Appeals. 

10 (3) OFFICE OF HEARINGS AND APPEALS.—The 

11 term ‘‘Office of Hearings and Appeals’’ means the Of12 fice of Hearings and Appeals of the Department of the 

13 Interior. 

14 (4) PARTY.—The term ‘‘party’’, with respect to 

15 a study plan agreement, means each of the following 

16 parties to the study plan agreement: 

17 (A) The proposed lessee. 

18 (B) The Tribes. 

19 (5) PROJECT.—The term ‘‘project’’ means a pro20 posed pumped storage facility that— 

21 (A) would use multiple Bureau of Reclama22 tion reservoirs; and 

23 (B) as of June 1, 2017, was subject to a 

24 preliminary permit issued by the Commission 


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1 pursuant to section 4(f) of the Federal Power Act 

2 (16 U.S.C. 797(f)). 

3 (6) PROPOSED LESSEE.—The term ‘‘proposed 

4 lessee’’ means the proposed lessee of a project. 

5 (7) SECRETARY.—The term ‘‘Secretary’’ means 

6 the Secretary of the Interior. 

7 (8) STUDY PLAN.—The term ‘‘study plan’’ means 

8 the plan described in subsection (d)(1). 

9 (9) STUDY PLAN AGREEMENT.—The term ‘‘study 

10 plan agreement’’ means an agreement entered into 

11 under subsection (b)(1) and described in subsection 

12 (c). 

13 (10) TRIBES.—The term ‘‘Tribes’’ means— 

14 (A) the Confederated Tribes of the Colville 

15 Reservation; and 

16 (B) the Spokane Tribe of Indians of the 

17 Spokane Reservation. 

18 (b) REQUIREMENT FOR ISSUANCE OF LEASES OF

19 POWER PRIVILEGE.—The Secretary shall not issue a lease 

20 of power privilege pursuant to section 9(c)(1) of the Rec21 lamation Project Act of 1939 (43 U.S.C. 485h(c)(1)) (as 

22 amended by section 2) for a project unless— 

23 (1) the proposed lessee and the Tribes have en24 tered into a study plan agreement; or 


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1 (2) the Secretary or the Director, as applicable, 

2 makes a final determination for— 

3 (A) a study plan agreement under sub4 section (c)(2); or 

5 (B) a study plan under subsection (d). 

6 (c) STUDY PLAN AGREEMENT REQUIREMENTS.— 

7 (1) IN GENERAL.—A study plan agreement 

8 shall— 

9 (A) establish the deadlines for the proposed 

10 lessee to formally respond in writing to com11 ments and study requests about the project pre12 viously submitted to the Commission; 

13 (B) allow for the parties to submit addi14 tional comments and study requests if any as15 pect of the project, as proposed, differs from an 

16 aspect of the project, as described in a 

17 preapplication document provided to the Com18 mission; 

19 (C) except as expressly agreed to by the par20 ties or as provided in paragraph (2) or sub21 section (d), require that the proposed lessee con22 duct each study described in— 

23 (i) a study request about the project 

24 previously submitted to the Commission; or 


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1 (ii) any additional study request sub2 mitted in accordance with the study plan 

3 agreement; 

4 (D) require that the proposed lessee study 

5 any potential adverse economic effects of the 

6 project on the Tribes, including effects on— 

7 (i) annual payments to the Confed8 erated Tribes of the Colville Reservation 

9 under section 5(b) of the Confederated 

10 Tribes of the Colville Reservation Grand 

11 Coulee Dam Settlement Act (Public Law 

12 103–436; 108 Stat. 4579); and 

13 (ii) annual payments to the Spokane 

14 Tribe of Indians of the Spokane Reservation 

15 authorized after the date of enactment of 

16 this Act, the amount of which derives from 

17 the annual payments described in clause (i); 

18 (E) establish a protocol for communication 

19 and consultation between the parties; 

20 (F) provide mechanisms for resolving dis21 putes between the parties regarding implementa22 tion and enforcement of the study plan agree23 ment; and 

24 (G) contain other provisions determined to 

25 be appropriate by the parties. 


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1 (2) DISPUTES.— 

2 (A) IN GENERAL.—If the parties cannot 

3 agree to the terms of a study plan agreement or 

4 implementation of those terms, the parties shall 

5 submit to the Director, for final determination 

6 on the terms or implementation of the study 

7 plan agreement, notice of the dispute, consistent 

8 with paragraph (1)(F), to the extent the parties 

9 have agreed to a study plan agreement. 

10 (B) INCLUSION.—A dispute covered by sub11 paragraph (A) may include the view of a pro12 posed lessee that an additional study request sub13 mitted in accordance with paragraph (1)(B) is 

14 not reasonably calculated to assist the Secretary 

15 in evaluating the potential impacts of the 

16 project. 

17 (C) TIMING.—The Director shall issue a de18 termination regarding a dispute under subpara19 graph (A) not later than 120 days after the date 

20 on which the Director receives notice of the dis21 pute under that subparagraph. 

22 (d) STUDY PLAN.— 

23 (1) IN GENERAL.—The proposed lessee shall sub24 mit to the Secretary for approval a study plan that 


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1 details the proposed methodology for performing each 

2 of the studies— 

3 (A) identified in the study plan agreement 

4 of the proposed lessee; or 

5 (B) determined by the Director in a final 

6 determination regarding a dispute under sub7 section (c)(2). 

8 (2) INITIAL DETERMINATION.—Not later than 60 

9 days after the date on which the Secretary receives the 

10 study plan under paragraph (1), the Secretary shall 

11 make an initial determination that— 

12 (A) approves the study plan; 

13 (B) rejects the study plan on the grounds 

14 that the study plan— 

15 (i) lacks sufficient detail on a proposed 

16 methodology for a study identified in the 

17 study plan agreement; or 

18 (ii) is inconsistent with the study plan 

19 agreement; or 

20 (C) imposes additional study plan require21 ments that the Secretary determines are nec22 essary to adequately define the potential effects of 

23 the project on— 

24 (i) the exercise of the paramount hunt25 ing, fishing, and boating rights of the Tribes 


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1 reserved pursuant the Act of June 29, 1940 

2 (54 Stat. 703, chapter 460; 16 U.S.C. 835d 

3 et seq.); 

4 (ii) the annual payments described in 

5 clauses (i) and (ii) of subsection (c)(1)(D); 

6 (iii) the Columbia Basin project (as 

7 defined in section 1 of the Act of May 27, 

8 1937 (50 Stat. 208, chapter 269; 57 Stat. 

9 14, chapter 14; 16 U.S.C. 835)); 

10 (iv) historic properties and cultural or 

11 spiritually significant resources; and 

12 (v) the environment. 

13 (3) OBJECTIONS.— 

14 (A) IN GENERAL.—Not later than 30 days 

15 after the date on which the Secretary makes an 

16 initial determination under paragraph (2), the 

17 Tribes or the proposed lessee may submit to the 

18 Director an objection to the initial determina19 tion. 

20 (B) FINAL DETERMINATION.—Not later 

21 than 120 days after the date on which the Direc22 tor receives an objection under subparagraph 

23 (A), the Director shall— 

24 (i) hold a hearing on the record re25 garding the objection; and 


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1 (ii) make a final determination that 

2 establishes the study plan, including a de3 scription of studies the proposed lessee is re4 quired to perform. 

5 (4) NO OBJECTIONS.—If no objections are sub6 mitted by the deadline described in paragraph (3)(A), 

7 the initial determination of the Secretary under para8 graph (2) shall be final. 

9 (e) CONDITIONS OF LEASE.— 

10 (1) CONSISTENCY WITH RIGHTS OF TRIBES; PRO11 TECTION, MITIGATION, AND ENHANCEMENT OF FISH

12 AND WILDLIFE.— 

13 (A) IN GENERAL.—Any lease of power 

14 privilege issued by the Secretary for a project 

15 under subsection (b) shall contain conditions— 

16 (i) to ensure that the project is con17 sistent with, and will not interfere with, the 

18 exercise of the paramount hunting, fishing, 

19 and boating rights of the Tribes reserved 

20 pursuant to the Act of June 29, 1940 (54 

21 Stat. 703, chapter 460; 16 U.S.C. 835d et 

22 seq.); and 

23 (ii) to adequately and equitably pro24 tect, mitigate damages to, and enhance fish 

25 and wildlife, including related spawning 


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1 grounds and habitat, affected by the devel2 opment, operation, and management of the 

3 project. 

4 (B) RECOMMENDATIONS OF THE TRIBES.— 

5 The conditions required under subparagraph (A) 

6 shall be based on joint recommendations of the 

7 Tribes. 

8 (C) RESOLVING INCONSISTENCIES.— 

9 (i) IN GENERAL.—If the Secretary de10 termines that any recommendation of the 

11 Tribes under subparagraph (B) is not rea12 sonably calculated to ensure the project is 

13 consistent with subparagraph (A) or is in14 consistent with the requirements of the Rec15 lamation Project Act of 1939 (43 U.S.C. 

16 485 et seq.), the Secretary shall attempt to 

17 resolve any such inconsistency with the 

18 Tribes, giving due weight to the rec19 ommendations and expertise of the Tribes. 

20 (ii) PUBLICATION OF FINDINGS.—If, 

21 after an attempt to resolve an inconsistency 

22 under clause (i), the Secretary does not 

23 adopt in whole or in part a recommenda24 tion of the Tribes under subparagraph (B), 

25 the Secretary shall issue each of the folVerDate Sep 11 2014 23:02 Nov 26, 2018 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6203 E:\BILLS\H1967.RS H1967

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1 lowing findings, including a statement of 

2 the basis for each of the findings: 

3 (I) A finding that adoption of the 

4 recommendation is inconsistent with 

5 the requirements of the Reclamation 

6 Project Act of 1939 (43 U.S.C. 485 et 

7 seq.). 

8 (II) A finding that the conditions 

9 selected by the Secretary to be con10 tained in the lease of power privilege 

11 under subparagraph (A) comply with 

12 the requirements of clauses (i) and (ii) 

13 of that subparagraph. 

14 (2) ANNUAL CHARGES PAYABLE BY LICENSEE.— 

15 (A) IN GENERAL.—Subject to subparagraph 

16 (B), any lease of power privilege issued by the 

17 Secretary for a project under subsection (b) shall 

18 contain conditions that require the lessee of the 

19 project to make direct payments to the Tribes 

20 through reasonable annual charges in an amount 

21 that recompenses the Tribes for any adverse eco22 nomic effect of the project identified in a study 

23 performed pursuant to the study plan agreement 

24 for the project. 

25 (B) AGREEMENT.— 


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1 (i) IN GENERAL.—The amount of the 

2 annual charges described in subparagraph 

3 (A) shall be established through agreement 

4 between the proposed lessee and the Tribes. 

5 (ii) CONDITION.—The agreement under 

6 clause (i), including any modification of the 

7 agreement, shall be deemed to be a condition 

8 to the lease of power privilege issued by the 

9 Secretary for a project under subsection (b). 

10 (C) DISPUTE RESOLUTION.— 

11 (i) IN GENERAL.—If the proposed lessee 

12 and the Tribes cannot agree to the terms of 

13 an agreement under subparagraph (B)(i), 

14 the proposed lessee and the Tribes shall sub15 mit notice of the dispute to the Director. 

16 (ii) RESOLUTION.—The Director shall 

17 resolve the dispute described in clause (i) 

18 not later than 180 days after the date on 

19 which the Director receives notice of the dis20 pute under that clause. 

21 (3) ADDITIONAL CONDITIONS.—The Secretary 

22 may include in any lease of power privilege issued by 

23 the Secretary for a project under subsection (b) other 

24 conditions determined appropriate by the Secretary, 

25 on the condition that the conditions shall be conVerDate Sep 11 2014 23:02 Nov 26, 2018 Jkt 089200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6203 E:\BILLS\H1967.RS H1967

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1 sistent with the Reclamation Project Act of 1939 (43 

2 U.S.C. 485 et seq.). 

3 (4) CONSULTATION.—In establishing conditions 

4 under this subsection, the Secretary shall consult with 

5 the Tribes. 

6 (f) DEADLINES.—The Secretary or any officer of the 

7 Office of Hearing and Appeals before whom a proceeding 

8 is pending under this section may extend any deadline or 

9 enlarge any timeframe described in this section— 

10 (1) at the discretion of the Secretary or the offi11 cer; or 

12 (2) on a showing of good cause by any party. 

13 (g) JUDICIAL REVIEW.—Any final action of the Sec14 retary or the Director made pursuant to this section shall 

15 be subject to judicial review in accordance with chapter 7 

16 of title 5, United States Code. 

17 (h) EFFECT ON OTHER PROJECTS.—Nothing in this 

18 section establishes any precedent or is binding on any Bu19 reau of Reclamation lease of power privilege, other than for 

20 a project. 


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Calendar No. 663 

115TH CONGRESS 

2D SESSION H. R. 1967 

[Report No. 115–377] 

AN ACT 

To amend the Reclamation Project Act of 1939 to 

reservoirs. ment utilizing multiple Bureau of Reclamation authorize pumped storage hydropower developNOVEMBER 26, 2018 

Reported with an amendment 


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