II 

Calendar No. 618

108TH CONGRESS 

2D SESSION S. 2319

[Report No. 108–299] 

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 

JULY 7, 2004

Reported by Mr. DOMENICI, with an amendment 

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

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’’. 
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1 SEC. 2. PURPOSE. 

2 The purpose of this Act is to resolve jurisdictional 

3 issues regarding hydroelectric power licensing of FERC 

4 Project No. 2169 (the Tapoco Project or Project) by au5 thorizing— 

6 (1) the Secretary of the Interior to complete, as 

7 soon as practicable after the date of enactment of 

8 this Act, an exchange of certain land; and 

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

10 Federal Energy Regulatory Commission to license 

11 the Project. 

12 SEC. 3. DEFINITIONS. 

13 In this Act: 

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

15 Power Generating Inc. (including its successors and 

16 assigns). 

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

18 General’’ means the Attorney General of the United 

19 States. 

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

21 means the Federal Energy Regulatory Commission. 

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

23 Smoky Mountains National Park. 

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

25 FERC Project No. 2169 (the Tapoco Project or 
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1 Project), including the Chilhowee Dam and reservoir 

2 in the State. 

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

4 the Secretary of the Interior. 

5 (7) SETTLEMENT AGREEMENT.—The term 

6 ‘‘Settlement Agreement’’ means the agreement filed 

7 with the Commission among the settling parties 

8 reached in the licensing of the Project that describes 

9 the operational and protection, mitigation, and en10 hancement measures for operation of the Project. 

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

12 of Tennessee. 

13 SEC. 4. LAND EXCHANGE. 

14 (a) IN GENERAL.—The Secretary shall offer to ac15 quire from APGI— 

16 (1) subject to any encumbrances existing before 

17 February 21, 2003, approximately 186 acres of land 

18 (within the authorized boundary of the Park) located 

19 northeast of United States Highway 129 and south20 west of the Tennessee Valley Authority power line; 

21 in exchange for 

22 (2) approximately 100 acres of land within the 

23 Park that are— 

24 (A) adjacent to or flooded by the 

25 Chilhowee Reservoir; 
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1 (B) within the boundary of the Tapoco 

2 Project as of February 21, 2003; and 

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

4 Hydroelectric Project, P–2169, Settlement 

5 Agreement, Appendix C–5, Proposed Land 

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

7 numbered TP514, Issue No. 8, and dated 

8 March 11, 2004. 

9 (b) CONSERVATION EASEMENT.—The Secretary shall 

10 reserve a conservation easement over any land transferred 

11 to APGI that shall— 

12 (1) specifically prohibit any development of the 

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

14 (A) necessary for the continued operation 

15 and maintenance of the Chilhowee Reservoir; or 

16 (B) required by the Commission; 

17 (2) authorize public access to the easement area 

18 subject to Park regulations and the terms and re19 strictions imposed by the Commission in any license 

20 the Commission may issue for the project; and 

21 (3) authorize the National Park Service to en22 force Park regulations on the land and in and on the 

23 waters of Chilhowee Reservoir lying on the land, to 

24 the extent not inconsistent with any license condi25 tions considered necessary by the Commission. 
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1 (c) REVERSION.—The deed from the Secretary to 

2 APGI shall contain a provision that requires the fee simple 

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

4 if the Dam is breached or removed.

5 (d) UNSUITABLE LAND.— 

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

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

8 subsection (a) is unsuitable for the Park, the Sec9 retary shall provide APGI with an opportunity to 

10 make the tract suitable for inclusion in the Park. 

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

12 to make the tract suitable for inclusion in the Park 

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

14 make the tract suitable for inclusion— 

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

16 written notice from the Secretary to APGI; and 

17 (B) the Secretary shall negotiate an acqui18 sition for inclusion in the Park of suitable land 

19 that is— 

20 (i) of approximately equal value to the 

21 land acquired by APGI for inclusion in the 

22 Park; and 

23 (ii) within or adjacent to the boundary 

24 of the Park. 

25 (e) ACTION FOR FAIR MARKET VALUE OF LAND.— 
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1 (1) IN GENERAL.—If the Secretary determines 

2 that negotiations for substitute land described in 

3 subsection (d)(2)(B) are at an impasse, the Sec4 retary shall request the Attorney General to seek 

5 compensation for— 

6 (A) the fair market value of the land or in7 terests in land that would have been transferred 

8 to the Park had the land not been affected by 

9 the encumbrances or defects that made the land 

10 unsuitable for inclusion in the Park; and 

11 (B) the costs and litigation expenses of the 

12 United States, including attorney fees. 

13 (2) FUNDS.—All funds recovered from any ac14 tion under paragraph (1) shall— 

15 (A) be immediately available, without fur16 ther appropriation from the Treasury, for use 

17 by the Secretary for acquisition of land within 

18 or adjacent to the boundaries of the Park from 

19 willing sellers; and 

20 (B) remain available until expended. 

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

22 subsection affects a conveyance by the United States 

23 to APGI under subsection (a). 

24 (f) BOUNDARY ADJUSTMENT.— 
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1 (1) IN GENERAL.—On completion of an ex2 change authorized under this section, the Secretary 

3 shall— 

4 (A) adjust the boundary of the Park to re5 flect the exchange; and 

6 (B) administer any acquired land as part 

7 of the Park in accordance with applicable law 

8 (including regulations). 

9 (2) PUBLIC NOTICE.—The Secretary shall pub10 lish in the Federal Register notice of any boundary 

11 revised under this subsection. 

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

13 of land under this section is deemed to meet the require14 ments of— 

15 (1) the National Environmental Policy Act of 

16 1969 (42 U.S.C. 4321 et seq.); 

17 (2) the National Historic Preservation Act (16 

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

19 (3) the land exchange provisions of the Land 

20 and Water Conservation Fund Act of 1965 (16 

21 U.S.C. 460l–4 et seq.). 

22 SEC. 5. LICENSING. 

23 Notwithstanding any other provision of law, on com24 pletion of the land exchange or acquisition of equivalent 
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1 land under section 4, the Commission shall have jurisdic2 tion to license the Project . 

3 SEC. 6. LAND ACQUISITION. 

4 (a) SECRETARY OF THE INTERIOR.— 

5 (1) IN GENERAL.—The Secretary may acquire, 

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

7 may be transferred by APGI to any nongovern8 mental organization (as shown on the map entitled 

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

10 Agreement, Appendix C–5, Proposed Land Convey11 ances in Tennessee’’, numbered TP616, Issue No. 

12 15, and dated March 11, 2004) pursuant to the Set13 tlement Agreement. 

14 (2) BOUNDARY ADJUSTMENT.—The Secretary 

15 shall— 

16 (A) adjust the boundary of the Park to in17 clude any land acquired under paragraph (1); 

18 and 

19 (B) publish notice of the adjustment in the 

20 Federal Register. 

21 (b) SECRETARY OF AGRICULTURE.— 

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

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

24 the State that may be transferred to any nongovern-
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1 mental organization pursuant to the Settlement 

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

3 (2) BOUNDARY ADJUSTMENT.—The Secretary 

4 of Agriculture shall— 

5 (A) adjust the boundary of the Cherokee 

6 National Forest to include any land acquired 

7 under paragraph (1); and 

8 (B) publish notice of the adjustment in the 

9 Federal Register. 

10 (3) MANAGEMENT.—The Secretary of Agri11 culture shall evaluate whether it is feasible and prac12 ticable to manage any land acquired for the Cher13 okee National Forest under paragraph (1) in a man14 ner that retains the primitive, back-country char15 acter of the land. 

16 SEC. 7. AUTHORIZATION FOR APPROPRIATIONS. 

17 There are authorized to be appropriated such sums 

18 as are necessary for the United States to acquire interests 

19 in land and to otherwise effectuate the purposes and terms 

20 of the land transfer provisions of the Settlement Agree21 ment.

22 SECTION 1. SHORT TITLE. 

23 This Act may be cited as the ‘‘Tapoco Project Licens24 ing Act of 2004’’.
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1 SEC. 2. DEFINITIONS. 

2 In this Act: 

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

4 Power Generating Inc. (including its successors and 

5 assigns). 

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

7 means the Federal Energy Regulatory Commission. 

8 (3) MAP.—The term ‘‘map’’ means the map enti9 tled ‘‘Tapoco Hydroelectric Project, P–2169, Settle10 ment Agreement, Appendix B, Proposed Land Swap 

11 Areas, National Park Service and APGI’’, numbered 

12 TP514, Issue No. 9, and dated June 8, 2004. 

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

14 Smoky Mountains National Park. 

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

16 Tapoco Hydroelectric Project, FERC Project No. 

17 2169, including the Chilhowee Dam and Reservoir in 

18 the State of Tennessee. 

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

20 the Secretary of the Interior. 

21 SEC. 3. LAND EXCHANGE. 

22 (a) AUTHORIZATION.—

23 (1) IN GENERAL.—Upon the conveyance by 

24 APGI of title acceptable to the Secretary of the land 

25 identified in paragraph (2), the Secretary shall si-
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1 multaneously convey to APGI title to the land identi2 fied in paragraph (3). 

3 (2) DESCRIPTION OF LAND TO BE CONVEYED BY

4 APGI.—The land to be conveyed by APGI to the Sec5 retary is the approximately 186 acres of land, subject 

6 to any encumbrances existing before February 21, 

7 2003—

8 (A) within the authorized boundary of the 

9 Park, located northeast of United States High10 way 129 and adjacent to the APGI power line; 

11 and 

12 (B) as generally depicted on the map as 

13 ‘‘Proposed Property Transfer from APGI to Na14 tional Park Service’’. 

15 (3) DESCRIPTION OF LAND TO BE CONVEYED BY

16 THE SECRETARY.—The land to be conveyed by the 

17 Secretary to APGI are the approximately 110 acres 

18 of land within the Park that are— 

19 (A) adjacent to or flooded by the Chilhowee 

20 Reservoir; 

21 (B) within the boundary of the Project as of 

22 February 21, 2003; and 

23 (C) as generally depicted on the map as 

24 ‘‘Proposed Property Transfer from National 

25 Park Service to APGI’’. 
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1 (b) MINOR ADJUSTMENTS TO CONVEYED LAND.—The 

2 Secretary and APGI may mutually agree to make minor 

3 boundary or acreage adjustments to the land identified in 

4 paragraphs (2) and (3) of subsection (a). 

5 (c) OPPORTUNITY TO MITIGATE.—If the Secretary de6 termines that all or part of the land to be conveyed to the 

7 Park under subsection (a) is unsuitable for inclusion in the 

8 Park, APGI shall have the opportunity to make the land 

9 suitable for inclusion in the Park. 

10 (d) CONSERVATION EASEMENT.—The Secretary shall 

11 reserve a conservation easement over any land transferred 

12 to APGI under subsection (a)(3) that, subject to any terms 

13 and conditions imposed by the Commission in any license 

14 that the Commission may issue for the Project, shall— 

15 (1) specifically prohibit any development of the 

16 land by APGI, other than any development that is 

17 necessary for the continued operation and mainte18 nance of the Chilhowee Reservoir; 

19 (2) authorize public access to the easement area, 

20 subject to National Park Service regulations; and 

21 (3) authorize the National Park Service to en22 force Park regulations on the land and in and on the 

23 waters of Chilhowee Reservoir lying on the land, to 

24 the extent not inconsistent with any license condition 

25 considered necessary by the Commission. 
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1 (e) APPLICABILITY OF CERTAIN LAWS.—Section 5(b) 

2 of Public Law 90–401 (16 U.S.C. 460l–22(b)), shall not 

3 apply to the land exchange authorized under this section. 

4 (f) REVERSION.—

5 (1) IN GENERAL.—The deed from the Secretary 

6 to APGI shall contain a provision that requires the 

7 land described in subsection (a)(3) to revert to the 

8 United States if—

9 (A) the Chilhowee Reservoir ceases to exist; 

10 or 

11 (B) the Commission issues a final order de12 commissioning the Project from which no further 

13 appeal may be taken. 

14 (2) APPLICABLE LAW.—A reversion under this 

15 subsection shall not eliminate APGI’s responsibility 

16 to comply with all applicable provisions of the Fed17 eral Power Act (16 U.S.C. 791a et seq.), including 

18 regulations. 

19 (g) BOUNDARY ADJUSTMENT.— 

20 (1) IN GENERAL.—On completion of the land ex21 change authorized under this section, the Secretary 

22 shall— 

23 (A) adjust the boundary of the Park to in24 clude the land described in subsection (a)(2); and
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1 (B) administer any acquired land as part 

2 of the Park in accordance with applicable law 

3 (including regulations). 

4 (2) NATIONAL PARK SERVICE LAND.—Notwith5 standing the exchange of land under this section, the 

6 land described in subsection (a)(3) shall remain in 

7 the boundary of the Park. 

8 (3) PUBLIC NOTICE.—The Secretary shall pub9 lish in the Federal Register notice of any boundary 

10 revised under paragraph (1). 

11 SEC. 4. PROJECT LICENSING. 

12 Notwithstanding the continued inclusion of the land 

13 described in section 3(a)(3) in the boundary of the Park 

14 (including any modification made pursuant to section 3(b)) 

15 on completion of the land exchange, the Commission shall 

16 have jurisdiction to license the Project. 

17 SEC. 5. LAND ACQUISITION. 

18 (a) IN GENERAL.—The Secretary or the Secretary of 

19 Agriculture may acquire, by purchase, donation, or ex20 change, any land or interest in land that— 

21 (1) may be transferred by APGI to any non22 governmental organization; and 

23 (2) is identified as ‘‘Permanent Easement’’ or 

24 ‘‘Term Easement’’ on the map entitled ‘‘Tapoco Hy25 droelectric Project, P–2169, Settlement Agreement, 
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1 Appendix B, Proposed Land Conveyances in Ten2 nessee’’, numbered TP616, Issue No. 15, and dated 

3 March 11, 2004. 

4 (b) LAND ACQUIRED BY THE SECRETARY OF THE IN5 TERIOR.—The Secretary shall— 

6 (1) adjust the boundary of the Park to include 

7 any land or interest in land acquired by the Sec8 retary under subsection (a); 

9 (2) administer any acquired land or interest in 

10 land as part of the Park in accordance with applica11 ble law (including regulations); and 

12 (3) publish notice of the adjustment in the Fed13 eral Register. 

14 (c) LAND ACQUIRED BY THE SECRETARY OF AGRI15 CULTURE.— 

16 (1) BOUNDARY ADJUSTMENT.—The Secretary of 

17 Agriculture shall— 

18 (A) adjust the boundary of the Cherokee Na19 tional Forest to include any land acquired under 

20 subsection (a); 

21 (B) administer any acquired land or inter22 est in land as part of the Cherokee National For23 est in accordance with applicable law (including 

24 regulations); and 
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1 (C) publish notice of the adjustment in the 

2 Federal Register. 

3 (2) MANAGEMENT.—The Secretary of Agriculture 

4 shall evaluate the feasibility of managing any land 

5 acquired by the Secretary of Agriculture under sub6 section (a) in a manner that retains the primitive, 

7 back-country character of the land. 

8 SEC. 6. AUTHORIZATION OF APPROPRIATIONS. 

9 There are authorized to be appropriated such sums as 

10 are necessary to carry out this Act.

Calendar No. 618

108TH CONGRESS 

2D SESSION S. 2319

[Report No. 108–299] 

A BILL

To authorize and facilitate hydroelectric power 

licensing of the Tapoco Project. 

JULY 7, 2004

Reported with an amendment