II 

108TH CONGRESS 

2D SESSION S. 2319 

To authorize and facilitate hydroelectric power licensing of the Tapoco 

Project. 

IN THE SENATE OF THE UNITED STATES 

APRIL 19, 2004 

Mr. ALEXANDER introduced the following bill; which was read twice and 

referred to the Committee on Energy and Natural Resources 

A BILL 

To authorize and facilitate hydroelectric power licensing of 

the Tapoco Project. 

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 ‘‘Tapoco Project Licens5 ing Act of 2004’’. 

6 SEC. 2. PURPOSE. 

7 The purpose of this Act is to resolve jurisdictional 

8 issues regarding hydroelectric power licensing of FERC 

9 Project No. 2169 (the Tapoco Project or Project) by au10 thorizing— 
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1 (1) the Secretary of the Interior to complete, as 

2 soon as practicable after the date of enactment of 

3 this Act, an exchange of certain land; and 

4 (2) after the exchange of land is completed, the 

5 Federal Energy Regulatory Commission to license 

6 the Project. 

7 SEC. 3. DEFINITIONS. 

8 In this Act: 

9 (1) APGI.—The term ‘‘APGI’’ means Alcoa 

10 Power Generating Inc. (including its successors and 

11 assigns). 

12 (2) ATTORNEY GENERAL.—The term ‘‘Attorney 

13 General’’ means the Attorney General of the United 

14 States. 

15 (3) COMMISSION.—The term ‘‘Commission’’ 

16 means the Federal Energy Regulatory Commission. 

17 (4) PARK.—The term ‘‘Park’’ means the Great 

18 Smoky Mountains National Park. 

19 (5) PROJECT.—The term ‘‘Project’’ means 

20 FERC Project No. 2169 (the Tapoco Project or 

21 Project), including the Chilhowee Dam and reservoir 

22 in the State. 

23 (6) SECRETARY.—The term ‘‘Secretary’’ means 

24 the Secretary of the Interior. 
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1 (7) SETTLEMENT AGREEMENT.—The term 

2 ‘‘Settlement Agreement’’ means the agreement filed 

3 with the Commission among the settling parties 

4 reached in the licensing of the Project that describes 

5 the operational and protection, mitigation, and en6 hancement measures for operation of the Project. 

7 (8) STATE.—The term ‘‘State’’ means the State 

8 of Tennessee. 

9 SEC. 4. LAND EXCHANGE. 

10 (a) IN GENERAL.—The Secretary shall offer to ac11 quire from APGI— 

12 (1) subject to any encumbrances existing before 

13 February 21, 2003, approximately 186 acres of land 

14 (within the authorized boundary of the Park) located 

15 northeast of United States Highway 129 and south16 west of the Tennessee Valley Authority power line; 

17 in exchange for 

18 (2) approximately 100 acres of land within the 

19 Park that are— 

20 (A) adjacent to or flooded by the 

21 Chilhowee Reservoir; 

22 (B) within the boundary of the Tapoco 

23 Project as of February 21, 2003; and 

24 (C) shown on the map entitled ‘‘Tapoco 

25 Hydroelectric Project, P–2169, Settlement 
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1 Agreement, Appendix C–5, Proposed Land 

2 Swap Areas, National Park Service and APGI’’, 

3 numbered TP514, Issue No. 8, and dated 

4 March 11, 2004. 

5 (b) CONSERVATION EASEMENT.—The Secretary shall 

6 reserve a conservation easement over any land transferred 

7 to APGI that shall— 

8 (1) specifically prohibit any development of the 

9 land by APGI, other than any development that is— 

10 (A) necessary for the continued operation 

11 and maintenance of the Chilhowee Reservoir; or 

12 (B) required by the Commission; 

13 (2) authorize public access to the easement area 

14 subject to Park regulations and the terms and re15 strictions imposed by the Commission in any license 

16 the Commission may issue for the project; and 

17 (3) authorize the National Park Service to en18 force Park regulations on the land and in and on the 

19 waters of Chilhowee Reservoir lying on the land, to 

20 the extent not inconsistent with any license condi21 tions considered necessary by the Commission. 

22 (c) REVERSION.—The deed from the Secretary to 

23 APGI shall contain a provision that requires the fee simple 

24 title for the Chilhowee Dam to revert to the United States 

25 if the Dam is breached or removed. 
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1 (d) UNSUITABLE LAND.— 

2 (1) IN GENERAL.—If the Secretary determines 

3 that all or part of a tract of land acquired under 

4 subsection (a) is unsuitable for the Park, the Sec5 retary shall provide APGI with an opportunity to 

6 make the tract suitable for inclusion in the Park. 

7 (2) LAND NOT SUITABLE.—If APGI is unable 

8 to make the tract suitable for inclusion in the Park 

9 (as determined by the Secretary) or elects not to 

10 make the tract suitable for inclusion— 

11 (A) the transfer of the land is voided, on 

12 written notice from the Secretary to APGI; and 

13 (B) the Secretary shall negotiate an acqui14 sition for inclusion in the Park of suitable land 

15 that is— 

16 (i) of approximately equal value to the 

17 land acquired by APGI for inclusion in the 

18 Park; and 

19 (ii) within or adjacent to the boundary 

20 of the Park. 

21 (e) ACTION FOR FAIR MARKET VALUE OF LAND.— 

22 (1) IN GENERAL.—If the Secretary determines 

23 that negotiations for substitute land described in 

24 subsection (d)(2)(B) are at an impasse, the Sec-
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1 retary shall request the Attorney General to seek 

2 compensation for— 

3 (A) the fair market value of the land or in4 terests in land that would have been transferred 

5 to the Park had the land not been affected by 

6 the encumbrances or defects that made the land 

7 unsuitable for inclusion in the Park; and 

8 (B) the costs and litigation expenses of the 

9 United States, including attorney fees. 

10 (2) FUNDS.—All funds recovered from any ac11 tion under paragraph (1) shall— 

12 (A) be immediately available, without fur13 ther appropriation from the Treasury, for use 

14 by the Secretary for acquisition of land within 

15 or adjacent to the boundaries of the Park from 

16 willing sellers; and 

17 (B) remain available until expended. 

18 (3) EFFECT ON CONVEYANCE.—Nothing in this 

19 subsection affects a conveyance by the United States 

20 to APGI under subsection (a). 

21 (f) BOUNDARY ADJUSTMENT.— 

22 (1) IN GENERAL.—On completion of an ex23 change authorized under this section, the Secretary 

24 shall— 
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1 (A) adjust the boundary of the Park to re2 flect the exchange; and 

3 (B) administer any acquired land as part 

4 of the Park in accordance with applicable law 

5 (including regulations). 

6 (2) PUBLIC NOTICE.—The Secretary shall pub7 lish in the Federal Register notice of any boundary 

8 revised under this subsection. 

9 (g) COMPLIANCE WITH OTHER LAWS.—An exchange 

10 of land under this section is deemed to meet the require11 ments of— 

12 (1) the National Environmental Policy Act of 

13 1969 (42 U.S.C. 4321 et seq.); 

14 (2) the National Historic Preservation Act (16 

15 U.S.C. 470 et seq.); and 

16 (3) the land exchange provisions of the Land 

17 and Water Conservation Fund Act of 1965 (16 

18 U.S.C. 460l–4 et seq.). 

19 SEC. 5. LICENSING. 

20 Notwithstanding any other provision of law, on com21 pletion of the land exchange or acquisition of equivalent 

22 land under section 4, the Commission shall have jurisdic23 tion to license the Project . 

24 SEC. 6. LAND ACQUISITION. 

25 (a) SECRETARY OF THE INTERIOR.— 
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1 (1) IN GENERAL.—The Secretary may acquire, 

2 for the United States, title to land in the State that 

3 may be transferred by APGI to any nongovern4 mental organization (as shown on the map entitled 

5 ‘‘Tapoco Hydroelectric Project, P–2169, Settlement 

6 Agreement, Appendix C–5, Proposed Land Convey7 ances in Tennessee’’, numbered TP616, Issue No. 

8 15, and dated March 11, 2004) pursuant to the Set9 tlement Agreement. 

10 (2) BOUNDARY ADJUSTMENT.—The Secretary 

11 shall— 

12 (A) adjust the boundary of the Park to in13 clude any land acquired under paragraph (1); 

14 and 

15 (B) publish notice of the adjustment in the 

16 Federal Register. 

17 (b) SECRETARY OF AGRICULTURE.— 

18 (1) IN GENERAL.—The Secretary of Agriculture 

19 may acquire, for the United States, title to land in 

20 the State that may be transferred to any nongovern21 mental organization pursuant to the Settlement 

22 Agreement described in subsection (a)(1). 

23 (2) BOUNDARY ADJUSTMENT.—The Secretary 

24 of Agriculture shall— 
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1 (A) adjust the boundary of the Cherokee 

2 National Forest to include any land acquired 

3 under paragraph (1); and 

4 (B) publish notice of the adjustment in the 

5 Federal Register. 

6 (3) MANAGEMENT.—The Secretary of Agri7 culture shall evaluate whether it is feasible and prac8 ticable to manage any land acquired for the Cher9 okee National Forest under paragraph (1) in a man10 ner that retains the primitive, back-country char11 acter of the land. 

12 SEC. 7. AUTHORIZATION FOR APPROPRIATIONS. 

13 There are authorized to be appropriated such sums 

14 as are necessary for the United States to acquire interests 

15 in land and to otherwise effectuate the purposes and terms 

16 of the land transfer provisions of the Settlement Agree17 ment. 

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