II 

116TH CONGRESS 

1ST SESSION S. 1751 

To amend the Reclamation Project Act of 1939 to authorize pumped storage 

hydropower development utilizing multiple Bureau of Reclamation reservoirs. 

IN THE SENATE OF THE UNITED STATES 

JUNE 5, 2019 

Ms. CANTWELL introduced the following bill; which was read twice and 

referred to the Committee on Energy and Natural Resources 

A BILL 

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’’. 

6 SEC. 2. AUTHORITY FOR PUMPED STORAGE HYDROPOWER 

7 DEVELOPMENT USING MULTIPLE BUREAU OF 

8 RECLAMATION RESERVOIRS. 

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

10 (43 U.S.C. 485h(c)) is amended— 


kjohnson on DSK79L0C42 with BILLS
2 

•S 1751 IS

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

2 striking ‘‘, including small conduit hydropower devel3 opment’’ and inserting ‘‘and reserve to the Secretary 

4 the exclusive authority to develop small conduit hy5 dropower using Bureau of Reclamation facilities and 

6 pumped storage hydropower exclusively using Bu7 reau of Reclamation reservoirs’’; and 

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

9 filed with the Federal Energy Regulatory Commis10 sion as of August 9, 2013’’ and inserting ‘‘was filed 

11 with the Federal Energy Regulatory Commission be12 fore August 9, 2013, and is still pending’’. 

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

14 POWER PRIVILEGE. 

15 (a) DEFINITIONS.—In this section: 

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

17 means the Federal Energy Regulatory Commission. 

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

19 the Director of the Office of Hearings and Appeals. 

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

21 term ‘‘Office of Hearings and Appeals’’ means the 

22 Office of Hearings and Appeals of the Department 

23 of the Interior. 


kjohnson on DSK79L0C42 with BILLS
3 

•S 1751 IS

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

2 a study plan agreement, means each of the following 

3 parties to the study plan agreement: 

4 (A) The proposed lessee. 

5 (B) The Tribes. 

6 (5) PROJECT.—The term ‘‘project’’ means a 

7 proposed pumped storage facility that— 

8 (A) would use multiple Bureau of Rec9 lamation reservoirs; and 

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

11 preliminary permit issued by the Commission 

12 pursuant to section 4(f) of the Federal Power 

13 Act (16 U.S.C. 797(f)). 

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

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

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

17 the Secretary of the Interior. 

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

19 means the plan described in subsection (d)(1). 

20 (9) STUDY PLAN AGREEMENT.—The term 

21 ‘‘study plan agreement’’ means an agreement en22 tered into under subsection (b)(1) and described in 

23 subsection (c). 

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


kjohnson on DSK79L0C42 with BILLS
4 

•S 1751 IS

1 (A) the Confederated Tribes of the Colville 

2 Reservation; and 

3 (B) the Spokane Tribe of Indians of the 

4 Spokane Reservation. 

5 (b) REQUIREMENT FOR ISSUANCE OF LEASES OF

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

7 of power privilege pursuant to section 9(c)(1) of the Rec8 lamation Project Act of 1939 (43 U.S.C. 485h(c)(1)) (as 

9 amended by section 2) for a project unless— 

10 (1) the proposed lessee and the Tribes have en11 tered into a study plan agreement; or 

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

13 makes a final determination for— 

14 (A) a study plan agreement under sub15 section (c)(2); or 

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

17 (c) STUDY PLAN AGREEMENT REQUIREMENTS.— 

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

19 shall— 

20 (A) establish the deadlines for the pro21 posed lessee to formally respond in writing to 

22 comments and study requests about the project 

23 previously submitted to the Commission; 

24 (B) allow for the parties to submit addi25 tional comments and study requests if any asVerDate Sep 11 2014 22:40 Jun 11, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1751.IS S1751

kjohnson on DSK79L0C42 with BILLS
5 

•S 1751 IS

1 pect of the project, as proposed, differs from an 

2 aspect of the project, as described in a 

3 preapplication document provided to the Com4 mission; 

5 (C) except as expressly agreed to by the 

6 parties or as provided in paragraph (2) or sub7 section (d), require that the proposed lessee 

8 conduct each study described in— 

9 (i) a study request about the project 

10 previously submitted to the Commission; or 

11 (ii) any additional study request sub12 mitted in accordance with the study plan 

13 agreement; 

14 (D) require that the proposed lessee study 

15 any potential adverse economic effects of the 

16 project on the Tribes, including effects on— 

17 (i) annual payments to the Confed18 erated Tribes of the Colville Reservation 

19 under section 5(b) of the Confederated 

20 Tribes of the Colville Reservation Grand 

21 Coulee Dam Settlement Act (Public Law 

22 103–436; 108 Stat. 4579); and 

23 (ii) annual payments to the Spokane 

24 Tribe of Indians of the Spokane Reserva25 tion authorized after the date of enactment 


kjohnson on DSK79L0C42 with BILLS
6 

•S 1751 IS

1 of this Act, the amount of which derives 

2 from the annual payments described in 

3 clause (i); 

4 (E) establish a protocol for communication 

5 and consultation between the parties; 

6 (F) provide mechanisms for resolving dis7 putes between the parties regarding implemen8 tation and enforcement of the study plan agree9 ment; and 

10 (G) contain other provisions determined to 

11 be appropriate by the parties. 

12 (2) DISPUTES.— 

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

14 agree to the terms of a study plan agreement 

15 or implementation of those terms, the parties 

16 shall submit to the Director, for final deter17 mination on the terms or implementation of the 

18 study plan agreement, notice of the dispute, 

19 consistent with paragraph (1)(F), to the extent 

20 the parties have agreed to a study plan agree21 ment. 

22 (B) INCLUSION.—A dispute covered by 

23 subparagraph (A) may include the view of a 

24 proposed lessee that an additional study request 

25 submitted in accordance with paragraph (1)(B) 


kjohnson on DSK79L0C42 with BILLS
7 

•S 1751 IS

1 is not reasonably calculated to assist the Sec2 retary in evaluating the potential impacts of the 

3 project. 

4 (C) TIMING.—The Director shall issue a 

5 determination regarding a dispute under sub6 paragraph (A) not later than 120 days after the 

7 date on which the Director receives notice of 

8 the dispute under that subparagraph. 

9 (d) STUDY PLAN.— 

10 (1) IN GENERAL.—The proposed lessee shall 

11 submit to the Secretary for approval a study plan 

12 that details the proposed methodology for per13 forming each of the studies— 

14 (A) identified in the study plan agreement 

15 of the proposed lessee; or 

16 (B) determined by the Director in a final 

17 determination regarding a dispute under sub18 section (c)(2). 

19 (2) INITIAL DETERMINATION.—Not later than 

20 60 days after the date on which the Secretary re21 ceives the study plan under paragraph (1), the Sec22 retary shall make an initial determination that— 

23 (A) approves the study plan; 

24 (B) rejects the study plan on the grounds 

25 that the study plan— 


kjohnson on DSK79L0C42 with BILLS
8 

•S 1751 IS

1 (i) lacks sufficient detail on a pro2 posed methodology for a study identified in 

3 the study plan agreement; or 

4 (ii) is inconsistent with the study plan 

5 agreement; or 

6 (C) imposes additional study plan require7 ments that the Secretary determines are nec8 essary to adequately define the potential effects 

9 of the project on— 

10 (i) the exercise of the paramount 

11 hunting, fishing, and boating rights of the 

12 Tribes reserved pursuant to the Act of 

13 June 29, 1940 (54 Stat. 703, chapter 460; 

14 16 U.S.C. 835d et seq.); 

15 (ii) the annual payments described in 

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

17 (iii) the Columbia Basin project (as 

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

19 1937 (50 Stat. 208, chapter 269; 57 Stat. 

20 14, chapter 14; 16 U.S.C. 835)); 

21 (iv) historic properties and cultural or 

22 spiritually significant resources; and 

23 (v) the environment. 

24 (3) OBJECTIONS.— 


kjohnson on DSK79L0C42 with BILLS
9 

•S 1751 IS

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

2 after the date on which the Secretary makes an 

3 initial determination under paragraph (2), the 

4 Tribes or the proposed lessee may submit to the 

5 Director an objection to the initial determina6 tion. 

7 (B) FINAL DETERMINATION.—Not later 

8 than 120 days after the date on which the Di9 rector receives an objection under subparagraph 

10 (A), the Director shall— 

11 (i) hold a hearing on the record re12 garding the objection; and 

13 (ii) make a final determination that 

14 establishes the study plan, including a de15 scription of studies the proposed lessee is 

16 required to perform. 

17 (4) NO OBJECTIONS.—If no objections are sub18 mitted by the deadline described in paragraph 

19 (3)(A), the initial determination of the Secretary 

20 under paragraph (2) shall be final. 

21 (e) CONDITIONS OF LEASE.— 

22 (1) CONSISTENCY WITH RIGHTS OF TRIBES; 

23 PROTECTION, MITIGATION, AND ENHANCEMENT OF

24 FISH AND WILDLIFE.— 


kjohnson on DSK79L0C42 with BILLS
10 

•S 1751 IS

1 (A) IN GENERAL.—Any lease of power 

2 privilege issued by the Secretary for a project 

3 under subsection (b) shall contain conditions— 

4 (i) to ensure that the project is con5 sistent with, and will not interfere with, 

6 the exercise of the paramount hunting, 

7 fishing, and boating rights of the Tribes 

8 reserved pursuant to the Act of June 29, 

9 1940 (54 Stat. 703, chapter 460; 16 

10 U.S.C. 835d et seq.); and 

11 (ii) to adequately and equitably pro12 tect, mitigate damages to, and enhance 

13 fish and wildlife, including related spawn14 ing grounds and habitat, affected by the 

15 development, operation, and management 

16 of the project. 

17 (B) RECOMMENDATIONS OF THE

18 TRIBES.—The conditions required under sub19 paragraph (A) shall be based on joint rec20 ommendations of the Tribes. 

21 (C) RESOLVING INCONSISTENCIES.— 

22 (i) IN GENERAL.—If the Secretary de23 termines that any recommendation of the 

24 Tribes under subparagraph (B) is not rea25 sonably calculated to ensure the project is 


kjohnson on DSK79L0C42 with BILLS
11 

•S 1751 IS

1 consistent with subparagraph (A) or is in2 consistent with the requirements of the 

3 Reclamation Project Act of 1939 (43 

4 U.S.C. 485 et seq.), the Secretary shall at5 tempt to resolve any such inconsistency 

6 with the Tribes, giving due weight to the 

7 recommendations and expertise of the 

8 Tribes. 

9 (ii) PUBLICATION OF FINDINGS.—If, 

10 after an attempt to resolve an inconsist11 ency under clause (i), the Secretary does 

12 not adopt in whole or in part a rec13 ommendation of the Tribes under subpara14 graph (B), the Secretary shall issue each 

15 of the following findings, including a state16 ment of the basis for each of the findings: 

17 (I) A finding that adoption of the 

18 recommendation is inconsistent with 

19 the requirements of the Reclamation 

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

21 seq.). 

22 (II) A finding that the conditions 

23 selected by the Secretary to be con24 tained in the lease of power privilege 

25 under subparagraph (A) comply with 


kjohnson on DSK79L0C42 with BILLS
12 

•S 1751 IS

1 the requirements of clauses (i) and 

2 (ii) of that subparagraph. 

3 (2) ANNUAL CHARGES PAYABLE BY LI4 CENSEE.— 

5 (A) IN GENERAL.—Subject to subpara6 graph (B), any lease of power privilege issued 

7 by the Secretary for a project under subsection 

8 (b) shall contain conditions that require the les9 see of the project to make direct payments to 

10 the Tribes through reasonable annual charges 

11 in an amount that recompenses the Tribes for 

12 any adverse economic effect of the project iden13 tified in a study performed pursuant to the 

14 study plan agreement for the project. 

15 (B) AGREEMENT.— 

16 (i) IN GENERAL.—The amount of the 

17 annual charges described in subparagraph 

18 (A) shall be established through agreement 

19 between the proposed lessee and the 

20 Tribes. 

21 (ii) CONDITION.—The agreement 

22 under clause (i), including any modifica23 tion of the agreement, shall be deemed to 

24 be a condition to the lease of power priviVerDate Sep 11 2014 22:40 Jun 11, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1751.IS S1751

kjohnson on DSK79L0C42 with BILLS
13 

•S 1751 IS

1 lege issued by the Secretary for a project 

2 under subsection (b). 

3 (C) DISPUTE RESOLUTION.— 

4 (i) IN GENERAL.—If the proposed les5 see and the Tribes cannot agree to the 

6 terms of an agreement under subpara7 graph (B)(i), the proposed lessee and the 

8 Tribes shall submit notice of the dispute to 

9 the Director. 

10 (ii) RESOLUTION.—The Director shall 

11 resolve the dispute described in clause (i) 

12 not later than 180 days after the date on 

13 which the Director receives notice of the 

14 dispute under that clause. 

15 (3) ADDITIONAL CONDITIONS.—The Secretary 

16 may include in any lease of power privilege issued by 

17 the Secretary for a project under subsection (b) 

18 other conditions determined appropriate by the Sec19 retary, on the condition that the conditions shall be 

20 consistent with the Reclamation Project Act of 1939 

21 (43 U.S.C. 485 et seq.). 

22 (4) CONSULTATION.—In establishing conditions 

23 under this subsection, the Secretary shall consult 

24 with the Tribes. 


kjohnson on DSK79L0C42 with BILLS
14 

•S 1751 IS

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

2 Office of Hearing and Appeals before whom a proceeding 

3 is pending under this section may extend any deadline or 

4 enlarge any timeframe described in this section— 

5 (1) at the discretion of the Secretary or the of6 ficer; or 

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

8 (g) JUDICIAL REVIEW.—Any final action of the Sec9 retary or the Director made pursuant to this section shall 

10 be subject to judicial review in accordance with chapter 

11 7 of title 5, United States Code. 

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

13 section establishes any precedent or is binding on any Bu14 reau of Reclamation lease of power privilege, other than 

15 for a project. 

Æ 


kjohnson on DSK79L0C42 with BILLS