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of the reservation. The Secretary shall submit the advisory 
and the Secretary’s final written determination into the 
record of the Commission’s proceeding. 
‘‘(b) ALTERNATIVE PRESCRIPTIONS.—(1) Whenever 
the Secretary of the Interior or the Secretary of Commerce 
prescribes a fishway under section 18, the license appli-
cant or licensee may propose an alternative to such pre-
scription to construct, maintain, or operate a fishway. 
‘‘(2) Notwithstanding section 18, the Secretary of the 
Interior or the Secretary of Commerce, as appropriate, 
shall accept and prescribe, and the Commission shall re-
quire, the proposed alternative referred to in paragraph 
(1), if the Secretary of the appropriate department deter-
mines, based on substantial evidence provided by the li-
censee or otherwise available to the Secretary, that such 
alternative—
‘‘(A) will be no less protective than the fishway 
initially prescribed by the Secretary; and 
‘‘(B) will either—
‘‘(i) cost less to implement; or 
‘‘(ii) result in improved operation of the 
project works for electricity production, 
as compared to the fishway initially deemed nec-
essary by the Secretary.
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‘‘(3) The Secretary concerned shall submit into the 
public record of the Commission proceeding with any pre-
scription under section 18 or alternative prescription it ac-
cepts under this section, a written statement explaining 
the basis for such prescription, and reason for not accept-
ing any alternative prescription under this section. The 
written statement must demonstrate that the Secretary 
gave equal consideration to the effects of the condition 
adopted and alternatives not accepted on energy supply, 
distribution, cost, and use; flood control; navigation; water 
supply; and air quality (in addition to the preservation of 
other aspects of environmental quality); based on such in-
formation as may be available to the Secretary, including 
information voluntarily provided in a timely manner by the 
applicant and others. The Secretary shall also submit, to-
gether with the aforementioned written statement, all 
studies, data, and other factual information available to 
the Secretary and relevant to the Secretary’s decision. 
‘‘(4) Nothing in this section shall prohibit other inter-
ested parties from proposing alternative prescriptions. 
‘‘(5) If the Secretary concerned does not accept an 
applicant’s alternative prescription under this section, and 
the Commission finds that the Secretary’s prescription 
would be inconsistent with the purposes of this part, or 
other applicable law, the Commission may refer the dis-
111
pute to the Commission’s Dispute Resolution Service. The 
Dispute Resolution Service shall consult with the Sec-
retary and the Commission and issue a non-binding advi-
sory within 90 days. The Secretary may accept the Dis-
pute Resolution Service advisory unless the Secretary 
finds that the recommendation will be less protective than 
the fishway initially prescribed by the Secretary. The Sec-
retary shall submit the advisory and the Secretary’s final 
written determination into the record of the Commission’s 
proceeding.’’. 
PART II—ADDITIONAL HYDROPOWER 
SEC. 241. HYDROELECTRIC PRODUCTION INCENTIVES. 
(a) INCENTIVE PAYMENTS.—For electric energy gen-
erated and sold by a qualified hydroelectric facility during 
the incentive period, the Secretary of Energy (referred to 
in this section as the ‘‘Secretary’’) shall make, subject to 
the availability of appropriations, incentive payments to 
the owner or operator of such facility. The amount of such 
payment made to any such owner or operator shall be as 
determined under subsection (e) of this section. Payments 
under this section may only be made upon receipt by the 
Secretary of an incentive payment application which estab-
lishes that the applicant is eligible to receive such payment 
and which satisfies such other requirements as the Sec-
retary deems necessary. Such application shall be in such
112
form, and shall be submitted at such time, as the Sec-
retary shall establish. 
(b) DEFINITIONS.—For purposes of this section: 
(1) QUALIFIED
HYDROELECTRIC
FACILITY.—
The term ‘‘qualified hydroelectric facility’’ means a 
turbine or other generating device owned or solely 
operated by a non-Federal entity which generates 
hydroelectric energy for sale and which is added to 
an existing dam or conduit. 
(2) EXISTING
DAM
OR
CONDUIT.—The term 
‘‘existing dam or conduit’’ means any dam or con-
duit the construction of which was completed before 
the date of the enactment of this section and which 
does not require any construction or enlargement of 
impoundment or diversion structures (other than re-
pair or reconstruction) in connection with the instal-
lation of a turbine or other generating device. 
(3) CONDUIT.—The term ‘‘conduit’’ has the 
same meaning as when used in section 30(a)(2) of 
the Federal Power Act (16 U.S.C. 823a(a)(2)). 
The terms defined in this subsection shall apply without 
regard to the hydroelectric kilowatt capacity of the facility 
concerned, without regard to whether the facility uses a 
dam owned by a governmental or nongovernmental entity,