II 

Calendar No. 260 

116TH CONGRESS 

1ST SESSION S. 1751 

[Report No. 116–140] 

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 

OCTOBER 23, 2019 

Reported by Ms. MURKOWSKI, with an amendment 

[Omit the part struck through and insert the part printed in italic] 

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’’. 


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1 SEC. 2. AUTHORITY FOR PUMPED STORAGE HYDROPOWER 

2 DEVELOPMENT USING MULTIPLE BUREAU OF 

3 RECLAMATION RESERVOIRS. 

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

5 (43 U.S.C. 485h(c)) is amended— 

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

7 striking ‘‘, including small conduit hydropower devel8 opment’’ and inserting ‘‘and reserve to the Secretary 

9 the exclusive authority to develop small conduit hy10 dropower using Bureau of Reclamation facilities and 

11 pumped storage hydropower exclusively using Bu12 reau of Reclamation reservoirs’’; and 

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

14 filed with the Federal Energy Regulatory Commis15 sion as of August 9, 2013 as of the date of the enact16 ment of the Bureau of Reclamation Small Conduit 

17 Hydropower Development and Rural Jobs Act’’ and 

18 inserting ‘‘was filed with the Federal Energy Regu19 latory Commission before August 9, 2013, and is 

20 still pending’’. 

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

22 POWER PRIVILEGE. 

23 (a) DEFINITIONS.—In this section: 

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

25 means the Federal Energy Regulatory Commission. 


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

2 the Director of the Office of Hearings and Appeals. 

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

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

5 Office of Hearings and Appeals of the Department 

6 of the Interior. 

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

8 a study plan agreement, means each of the following 

9 parties to the study plan agreement: 

10 (A) The proposed lessee. 

11 (B) The Tribes. 

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

13 proposed pumped storage facility that— 

14 (A) would use multiple Bureau of Rec15 lamation reservoirs; and 

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

17 preliminary permit issued by the Commission 

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

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

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

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

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

23 the Secretary of the Interior. 

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

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


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1 (9) STUDY PLAN AGREEMENT.—The term 

2 ‘‘study plan agreement’’ means an agreement en3 tered into under subsection (b)(1) and described in 

4 subsection (c). 

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

6 (A) the Confederated Tribes of the Colville 

7 Reservation; and 

8 (B) the Spokane Tribe of Indians of the 

9 Spokane Reservation. 

10 (b) REQUIREMENT FOR ISSUANCE OF LEASES OF

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

12 of power privilege pursuant to section 9(c)(1) of the Rec13 lamation Project Act of 1939 (43 U.S.C. 485h(c)(1)) (as 

14 amended by section 2) for a project unless— 

15 (1) the proposed lessee and the Tribes have en16 tered into a study plan agreement; or 

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

18 makes a final determination for— 

19 (A) a study plan agreement under sub20 section (c)(2); or 

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

22 (c) STUDY PLAN AGREEMENT REQUIREMENTS.— 

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

24 shall— 


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1 (A) establish the deadlines for the pro2 posed lessee to formally respond in writing to 

3 comments and study requests about the project 

4 previously submitted to the Commission; 

5 (B) allow for the parties to submit addi6 tional comments and study requests if any as7 pect of the project, as proposed, differs from an 

8 aspect of the project, as described in a 

9 preapplication document provided to the Com10 mission; 

11 (C) except as expressly agreed to by the 

12 parties or as provided in paragraph (2) or sub13 section (d), require that the proposed lessee 

14 conduct each study described in— 

15 (i) a study request about the project 

16 previously submitted to the Commission; or 

17 (ii) any additional study request sub18 mitted in accordance with the study plan 

19 agreement; 

20 (D) require that the proposed lessee study 

21 any potential adverse economic effects of the 

22 project on the Tribes, including effects on— 

23 (i) annual payments to the Confed24 erated Tribes of the Colville Reservation 

25 under section 5(b) of the Confederated 


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1 Tribes of the Colville Reservation Grand 

2 Coulee Dam Settlement Act (Public Law 

3 103–436; 108 Stat. 4579); and 

4 (ii) annual payments to the Spokane 

5 Tribe of Indians of the Spokane Reserva6 tion authorized after the date of enactment 

7 of this Act, the amount of which derives 

8 from the annual payments described in 

9 clause (i); 

10 (E) establish a protocol for communication 

11 and consultation between the parties; 

12 (F) provide mechanisms for resolving dis13 putes between the parties regarding implemen14 tation and enforcement of the study plan agree15 ment; and 

16 (G) contain other provisions determined to 

17 be appropriate by the parties. 

18 (2) DISPUTES.— 

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

20 agree to the terms of a study plan agreement 

21 or implementation of those terms, the parties 

22 shall submit to the Director, for final deter23 mination on the terms or implementation of the 

24 study plan agreement, notice of the dispute, 

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


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1 the parties have agreed to a study plan agree2 ment. 

3 (B) INCLUSION.—A dispute covered by 

4 subparagraph (A) may include the view of a 

5 proposed lessee that an additional study request 

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

7 is not reasonably calculated to assist the Sec8 retary in evaluating the potential impacts of the 

9 project. 

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

11 determination regarding a dispute under sub12 paragraph (A) not later than 120 days after the 

13 date on which the Director receives notice of 

14 the dispute under that subparagraph. 

15 (d) STUDY PLAN.— 

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

17 submit to the Secretary for approval a study plan 

18 that details the proposed methodology for per19 forming each of the studies— 

20 (A) identified in the study plan agreement 

21 of the proposed lessee; or 

22 (B) determined by the Director in a final 

23 determination regarding a dispute under sub24 section (c)(2). 


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1 (2) INITIAL DETERMINATION.—Not later than 

2 60 days after the date on which the Secretary re3 ceives the study plan under paragraph (1), the Sec4 retary shall make an initial determination that— 

5 (A) approves the study plan; 

6 (B) rejects the study plan on the grounds 

7 that the study plan— 

8 (i) lacks sufficient detail on a pro9 posed methodology for a study identified in 

10 the study plan agreement; or 

11 (ii) is inconsistent with the study plan 

12 agreement; or 

13 (C) imposes additional study plan require14 ments that the Secretary determines are nec15 essary to adequately define the potential effects 

16 of the project on— 

17 (i) the exercise of the paramount 

18 hunting, fishing, and boating rights of the 

19 Tribes reserved pursuant to the Act of 

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

21 16 U.S.C. 835d et seq.); 

22 (ii) the annual payments described in 

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

24 (iii) the Columbia Basin project (as 

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


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1 1937 (50 Stat. 208, chapter 269; 57 Stat. 

2 14, chapter 14; 16 U.S.C. 835)); 

3 (iv) historic properties and cultural or 

4 spiritually significant resources; and 

5 (v) the environment. 

6 (3) OBJECTIONS.— 

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

8 after the date on which the Secretary makes an 

9 initial determination under paragraph (2), the 

10 Tribes or the proposed lessee may submit to the 

11 Director an objection to the initial determina12 tion. 

13 (B) FINAL DETERMINATION.—Not later 

14 than 120 days after the date on which the Di15 rector receives an objection under subparagraph 

16 (A), the Director shall— 

17 (i) hold a hearing on the record re18 garding the objection; and 

19 (ii) make a final determination that 

20 establishes the study plan, including a de21 scription of studies the proposed lessee is 

22 required to perform. 

23 (4) NO OBJECTIONS.—If no objections are sub24 mitted by the deadline described in paragraph 


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

2 under paragraph (2) shall be final. 

3 (e) CONDITIONS OF LEASE.— 

4 (1) CONSISTENCY WITH RIGHTS OF TRIBES; 

5 PROTECTION, MITIGATION, AND ENHANCEMENT OF

6 FISH AND WILDLIFE.— 

7 (A) IN GENERAL.—Any lease of power 

8 privilege issued by the Secretary for a project 

9 under subsection (b) shall contain conditions— 

10 (i) to ensure that the project is con11 sistent with, and will not interfere with, 

12 the exercise of the paramount hunting, 

13 fishing, and boating rights of the Tribes 

14 reserved pursuant to the Act of June 29, 

15 1940 (54 Stat. 703, chapter 460; 16 

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

17 (ii) to adequately and equitably pro18 tect, mitigate damages to, and enhance 

19 fish and wildlife, including related spawn20 ing grounds and habitat, affected by the 

21 development, operation, and management 

22 of the project. 

23 (B) RECOMMENDATIONS OF THE

24 TRIBES.—The conditions required under subVerDate Sep 11 2014 22:10 Oct 23, 2019 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1751.RS S1751

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1 paragraph (A) shall be based on joint rec2 ommendations of the Tribes. 

3 (C) RESOLVING INCONSISTENCIES.— 

4 (i) IN GENERAL.—If the Secretary de5 termines that any recommendation of the 

6 Tribes under subparagraph (B) is not rea7 sonably calculated to ensure the project is 

8 consistent with subparagraph (A) or is in9 consistent with the requirements of the 

10 Reclamation Project Act of 1939 (43 

11 U.S.C. 485 et seq.), the Secretary shall at12 tempt to resolve any such inconsistency 

13 with the Tribes, giving due weight to the 

14 recommendations and expertise of the 

15 Tribes. 

16 (ii) PUBLICATION OF FINDINGS.—If, 

17 after an attempt to resolve an inconsist18 ency under clause (i), the Secretary does 

19 not adopt in whole or in part a rec20 ommendation of the Tribes under subpara21 graph (B), the Secretary shall issue each 

22 of the following findings, including a state23 ment of the basis for each of the findings: 

24 (I) A finding that adoption of the 

25 recommendation is inconsistent with 


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1 the requirements of the Reclamation 

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

3 seq.). 

4 (II) A finding that the conditions 

5 selected by the Secretary to be con6 tained in the lease of power privilege 

7 under subparagraph (A) comply with 

8 the requirements of clauses (i) and 

9 (ii) of that subparagraph. 

10 (2) ANNUAL CHARGES PAYABLE BY LI11 CENSEE.— 

12 (A) IN GENERAL.—Subject to subpara13 graph (B), any lease of power privilege issued 

14 by the Secretary for a project under subsection 

15 (b) shall contain conditions that require the les16 see of the project to make direct payments to 

17 the Tribes through reasonable annual charges 

18 in an amount that recompenses the Tribes for 

19 any adverse economic effect of the project iden20 tified in a study performed pursuant to the 

21 study plan agreement for the project. 

22 (B) AGREEMENT.— 

23 (i) IN GENERAL.—The amount of the 

24 annual charges described in subparagraph 

25 (A) shall be established through agreement 


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1 between the proposed lessee and the 

2 Tribes. 

3 (ii) CONDITION.—The agreement 

4 under clause (i), including any modifica5 tion of the agreement, shall be deemed to 

6 be a condition to the lease of power privi7 lege issued by the Secretary for a project 

8 under subsection (b). 

9 (C) DISPUTE RESOLUTION.— 

10 (i) IN GENERAL.—If the proposed les11 see and the Tribes cannot agree to the 

12 terms of an agreement under subpara13 graph (B)(i), the proposed lessee and the 

14 Tribes shall submit notice of the dispute to 

15 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 

20 dispute 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) 

24 other conditions determined appropriate by the Sec25 retary, on the condition that the conditions shall be 


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1 consistent with the Reclamation Project Act of 1939 

2 (43 U.S.C. 485 et seq.). 

3 (4) CONSULTATION.—In establishing conditions 

4 under this subsection, the Secretary shall consult 

5 with 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 of11 ficer; 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 

16 7 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 

20 for a project. 


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Calendar No. 260 

116TH CONGRESS 

1ST SESSION S. 1751 

[Report No. 116–140] 

A BILL 

To amend the Reclamation Project Act of 1939 to 

reservoirs. ment utilizing multiple Bureau of Reclamation authorize pumped storage hydropower developOCTOBER 23, 2019 

Reported with an amendment 


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