In the Senate of the United States, 

December 22, 2018. 

Resolved, That the bill from the House of Representatives (H.R. 1967) entitled ‘‘An Act to amend the Reclamation 

Project Act of 1939 to authorize pumped storage hydropower 

development utilizing multiple Bureau of Reclamation reservoirs.’’, do pass with the following 

AMENDMENT: 

Strike out all after the enacting clause and insert: 

1 SECTION 1. SHORT TITLE. 

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

3 Pumped Storage Hydropower Development Act’’. 

4 SEC. 2. AUTHORITY FOR PUMPED STORAGE HYDROPOWER 

5 DEVELOPMENT USING MULTIPLE BUREAU OF 

6 RECLAMATION RESERVOIRS. 

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

8 (43 U.S.C. 485h(c)) is amended— 

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

10 striking ‘‘, including small conduit hydropower devel-
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1 opment’’ and inserting ‘‘and reserve to the Secretary 

2 the exclusive authority to develop small conduit hy3 dropower using Bureau of Reclamation facilities and 

4 pumped storage hydropower exclusively using Bureau 

5 of Reclamation reservoirs’’; and 

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

7 with the Federal Energy Regulatory Commission as 

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

9 Federal Energy Regulatory Commission before August 

10 9, 2013, and is still pending’’. 

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

12 POWER PRIVILEGE. 

13 (a) DEFINITIONS.—In this section: 

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

15 means the Federal Energy Regulatory Commission. 

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

17 Director of the Office of Hearings and Appeals. 

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

19 term ‘‘Office of Hearings and Appeals’’ means the Of20 fice of Hearings and Appeals of the Department of the 

21 Interior. 

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

23 a study plan agreement, means each of the following 

24 parties to the study plan agreement: 

25 (A) The proposed lessee. 
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† HR 1967 EAS 

1 (B) The Tribes. 

2 (5) PROJECT.—The term ‘‘project’’ means a pro3 posed pumped storage facility that— 

4 (A) would use multiple Bureau of Reclama5 tion reservoirs; and 

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

7 preliminary permit issued by the Commission 

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

9 (16 U.S.C. 797(f)). 

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

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

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

13 the Secretary of the Interior. 

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

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

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

17 plan agreement’’ means an agreement entered into 

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

19 (c). 

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

21 (A) the Confederated Tribes of the Colville 

22 Reservation; and 

23 (B) the Spokane Tribe of Indians of the 

24 Spokane Reservation. 
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† HR 1967 EAS 

1 (b) REQUIREMENT FOR ISSUANCE OF LEASES OF

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

3 of power privilege pursuant to section 9(c)(1) of the Rec4 lamation Project Act of 1939 (43 U.S.C. 485h(c)(1)) (as 

5 amended by section 2) for a project unless— 

6 (1) the proposed lessee and the Tribes have en7 tered into a study plan agreement; or 

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

9 makes a final determination for— 

10 (A) a study plan agreement under sub11 section (c)(2); or 

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

13 (c) STUDY PLAN AGREEMENT REQUIREMENTS.— 

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

15 shall— 

16 (A) establish the deadlines for the proposed 

17 lessee to formally respond in writing to com18 ments and study requests about the project pre19 viously submitted to the Commission; 

20 (B) allow for the parties to submit addi21 tional comments and study requests if any as22 pect of the project, as proposed, differs from an 

23 aspect of the project, as described in a 

24 preapplication document provided to the Com25 mission; 
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1 (C) except as expressly agreed to by the par2 ties or as provided in paragraph (2) or sub3 section (d), require that the proposed lessee con4 duct each study described in— 

5 (i) a study request about the project 

6 previously submitted to the Commission; or 

7 (ii) any additional study request sub8 mitted in accordance with the study plan 

9 agreement; 

10 (D) require that the proposed lessee study 

11 any potential adverse economic effects of the 

12 project on the Tribes, including effects on— 

13 (i) annual payments to the Confed14 erated Tribes of the Colville Reservation 

15 under section 5(b) of the Confederated 

16 Tribes of the Colville Reservation Grand 

17 Coulee Dam Settlement Act (Public Law 

18 103–436; 108 Stat. 4579); and 

19 (ii) annual payments to the Spokane 

20 Tribe of Indians of the Spokane Reservation 

21 authorized after the date of enactment of 

22 this Act, the amount of which derives from 

23 the annual payments described in clause (i); 

24 (E) establish a protocol for communication 

25 and consultation between the parties; 
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1 (F) provide mechanisms for resolving dis2 putes between the parties regarding implementa3 tion and enforcement of the study plan agree4 ment; and 

5 (G) contain other provisions determined to 

6 be appropriate by the parties. 

7 (2) DISPUTES.— 

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

9 agree to the terms of a study plan agreement or 

10 implementation of those terms, the parties shall 

11 submit to the Director, for final determination 

12 on the terms or implementation of the study 

13 plan agreement, notice of the dispute, consistent 

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

15 have agreed to a study plan agreement. 

16 (B) INCLUSION.—A dispute covered by sub17 paragraph (A) may include the view of a pro18 posed lessee that an additional study request sub19 mitted in accordance with paragraph (1)(B) is 

20 not reasonably calculated to assist the Secretary 

21 in evaluating the potential impacts of the 

22 project. 

23 (C) TIMING.—The Director shall issue a de24 termination regarding a dispute under subpara25 graph (A) not later than 120 days after the date 
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† HR 1967 EAS 

1 on which the Director receives notice of the dis2 pute under that subparagraph. 

3 (d) STUDY PLAN.— 

4 (1) IN GENERAL.—The proposed lessee shall sub5 mit to the Secretary for approval a study plan that 

6 details the proposed methodology for performing each 

7 of the studies— 

8 (A) identified in the study plan agreement 

9 of the proposed lessee; or 

10 (B) determined by the Director in a final 

11 determination regarding a dispute under sub12 section (c)(2). 

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

14 days after the date on which the Secretary receives the 

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

16 make an initial determination that— 

17 (A) approves the study plan; 

18 (B) rejects the study plan on the grounds 

19 that the study plan— 

20 (i) lacks sufficient detail on a proposed 

21 methodology for a study identified in the 

22 study plan agreement; or 

23 (ii) is inconsistent with the study plan 

24 agreement; or 
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1 (C) imposes additional study plan require2 ments that the Secretary determines are nec3 essary to adequately define the potential effects of 

4 the project on— 

5 (i) the exercise of the paramount hunt6 ing, fishing, and boating rights of the Tribes 

7 reserved pursuant the Act of June 29, 1940 

8 (54 Stat. 703, chapter 460; 16 U.S.C. 835d 

9 et seq.); 

10 (ii) the annual payments described in 

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

12 (iii) the Columbia Basin project (as 

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

14 1937 (50 Stat. 208, chapter 269; 57 Stat. 

15 14, chapter 14; 16 U.S.C. 835)); 

16 (iv) historic properties and cultural or 

17 spiritually significant resources; and 

18 (v) the environment. 

19 (3) OBJECTIONS.— 

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

21 after the date on which the Secretary makes an 

22 initial determination under paragraph (2), the 

23 Tribes or the proposed lessee may submit to the 

24 Director an objection to the initial determina25 tion. 
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† HR 1967 EAS 

1 (B) FINAL DETERMINATION.—Not later 

2 than 120 days after the date on which the Direc3 tor receives an objection under subparagraph 

4 (A), the Director shall— 

5 (i) hold a hearing on the record re6 garding the objection; and 

7 (ii) make a final determination that 

8 establishes the study plan, including a de9 scription of studies the proposed lessee is re10 quired to perform. 

11 (4) NO OBJECTIONS.—If no objections are sub12 mitted by the deadline described in paragraph (3)(A), 

13 the initial determination of the Secretary under para14 graph (2) shall be final. 

15 (e) CONDITIONS OF LEASE.— 

16 (1) CONSISTENCY WITH RIGHTS OF TRIBES; PRO17 TECTION, MITIGATION, AND ENHANCEMENT OF FISH

18 AND WILDLIFE.— 

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

20 privilege issued by the Secretary for a project 

21 under subsection (b) shall contain conditions— 

22 (i) to ensure that the project is con23 sistent with, and will not interfere with, the 

24 exercise of the paramount hunting, fishing, 

25 and boating rights of the Tribes reserved 
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† HR 1967 EAS 

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

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

3 seq.); and 

4 (ii) to adequately and equitably pro5 tect, mitigate damages to, and enhance fish 

6 and wildlife, including related spawning 

7 grounds and habitat, affected by the devel8 opment, operation, and management of the 

9 project. 

10 (B) RECOMMENDATIONS OF THE TRIBES.— 

11 The conditions required under subparagraph (A) 

12 shall be based on joint recommendations of the 

13 Tribes. 

14 (C) RESOLVING INCONSISTENCIES.— 

15 (i) IN GENERAL.—If the Secretary de16 termines that any recommendation of the 

17 Tribes under subparagraph (B) is not rea18 sonably calculated to ensure the project is 

19 consistent with subparagraph (A) or is in20 consistent with the requirements of the Rec21 lamation Project Act of 1939 (43 U.S.C. 

22 485 et seq.), the Secretary shall attempt to 

23 resolve any such inconsistency with the 

24 Tribes, giving due weight to the rec25 ommendations and expertise of the Tribes. 
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† HR 1967 EAS 

1 (ii) PUBLICATION OF FINDINGS.—If, 

2 after an attempt to resolve an inconsistency 

3 under clause (i), the Secretary does not 

4 adopt in whole or in part a recommenda5 tion of the Tribes under subparagraph (B), 

6 the Secretary shall issue each of the fol7 lowing findings, including a statement of 

8 the basis for each of the findings: 

9 (I) A finding that adoption of the 

10 recommendation is inconsistent with 

11 the requirements of the Reclamation 

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

13 seq.). 

14 (II) A finding that the conditions 

15 selected by the Secretary to be con16 tained in the lease of power privilege 

17 under subparagraph (A) comply with 

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

19 of that subparagraph. 

20 (2) ANNUAL CHARGES PAYABLE BY LICENSEE.— 

21 (A) IN GENERAL.—Subject to subparagraph 

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

23 Secretary for a project under subsection (b) shall 

24 contain conditions that require the lessee of the 

25 project to make direct payments to the Tribes 
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1 through reasonable annual charges in an amount 

2 that recompenses the Tribes for any adverse eco3 nomic effect of the project identified in a study 

4 performed pursuant to the study plan agreement 

5 for the project. 

6 (B) AGREEMENT.— 

7 (i) IN GENERAL.—The amount of the 

8 annual charges described in subparagraph 

9 (A) shall be established through agreement 

10 between the proposed lessee and the Tribes. 

11 (ii) CONDITION.—The agreement under 

12 clause (i), including any modification of the 

13 agreement, shall be deemed to be a condition 

14 to the lease of power privilege issued by the 

15 Secretary for a project under subsection (b). 

16 (C) DISPUTE RESOLUTION.— 

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

18 and the Tribes cannot agree to the terms of 

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

20 the proposed lessee and the Tribes shall sub21 mit notice of the dispute to the Director. 

22 (ii) RESOLUTION.—The Director shall 

23 resolve the dispute described in clause (i) 

24 not later than 180 days after the date on 
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1 which the Director receives notice of the dis2 pute under that clause. 

3 (3) ADDITIONAL CONDITIONS.—The Secretary 

4 may include in any lease of power privilege issued by 

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

6 conditions determined appropriate by the Secretary, 

7 on the condition that the conditions shall be con8 sistent with the Reclamation Project Act of 1939 (43 

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

10 (4) CONSULTATION.—In establishing conditions 

11 under this subsection, the Secretary shall consult with 

12 the Tribes. 

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

14 Office of Hearing and Appeals before whom a proceeding 

15 is pending under this section may extend any deadline or 

16 enlarge any timeframe described in this section— 

17 (1) at the discretion of the Secretary or the offi18 cer; or 

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

20 (g) JUDICIAL REVIEW.—Any final action of the Sec21 retary or the Director made pursuant to this section shall 

22 be subject to judicial review in accordance with chapter 7 

23 of title 5, United States Code. 

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

25 section establishes any precedent or is binding on any Bu-
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1 reau of Reclamation lease of power privilege, other than for 

2 a project. 

Attest: 

Secretary. 

115TH CONGRESS 

2D SESSION H.R. 1967 

AMENDMENT