I
107TH CONGRESS
2D SESSION
H. R. 3800
To amend the Federal Power Act to reform the hydroelectric licensing process,
and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
FEBRUARY 27, 2002
Mr. DINGELL (for himself and Mr. MARKEY) introduced the following bill;
which was referred to the Committee on Energy and Commerce
A BILL
To amend the Federal Power Act to reform the hydroelectric
licensing process, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
(a) SHORT TITLE.—This Act may be cited as the
‘‘Federal Investment in Sustainable Hydropower Act’’.
(b) TABLE OF CONTENTS.—
Sec. 1. Short title and table of contents.
Sec. 2. Incentives for turbine upgrades.
Sec. 3. FERC report on hydroelectric licensing.
Sec. 4. Rehearing petitions.
Sec. 5. Licensing schedule and environmental review.
Sec. 6. Agency conditions.
Sec. 7. License duration.
Sec. 8. Fees and charges.
Sec. 9. Availability of sufficient funds.
Sec. 10. Baseline.
Sec. 11. Annual licenses.
Sec. 12. Agency costs.
Sec. 13. Office of public participation.
Sec. 14. Royalty for use of public waters.
Sec. 15. Multiple projects on a waterway.
Sec. 16. Alternative conditions and fishways.
Sec. 17. FERC data on hydroelectric licensing.
Sec. 18. Enforcement.
Sec. 19. Sunshine in financial accounting.
SEC. 2. INCENTIVES FOR TURBINE UPGRADES.
(a) ADVANCED TURBINES.—The term ‘‘advanced
turbine’’ means a hydroelectric generation turbine that
achieves the maximum feasible generation of electricity
per gallon of water together with the maximum feasible
reduction in fish mortality.
(b) STANDARDS.—The Secretary of Energy, in con-
sultation with other appropriate Federal and State depart-
ments and agencies, and after receiving comments from
representatives of the hydroelectric power generation in-
dustry and other affected interests, shall, by rule, promul-
gate standards for advanced turbines. Such standards
shall be promulgated not later than 180 days after the
enactment of this Act and shall be revised to insure con-
formity with subsection (a) at 5-year intervals thereafter.
(c) INCENTIVES FOR INSTALLATION OF ADVANCED
TURBINES.—(1) The Federal Energy Regulatory Commis-
sion shall modify the fees imposed under the Federal
Power Act in association with the licensing and operation
of hydroelectric facilities under that Act so that the fees
imposed on licensees that have installed advanced turbines
meeting or exceeding the standards under subsection (b)
shall be entitled to a discount.
(2) In issuing new licenses for hydroelectric facilities
under section 15 of the Federal Power Act after the expi-
ration of existing licenses, the Federal Energy Regulatory
Commission shall give a priority in the scheduling of its
licensing processes to licensees that have installed ad-
vanced turbines meeting or exceeding the standards under
subsection (b).
SEC. 3. FERC REPORT ON HYDROELECTRIC LICENSING.
Section 4(d) of the Federal Power Act (16 U.S.C.
797(d)) is amended by inserting ‘‘(1)’’ after ‘‘(d)’’ and by
adding the following at the end thereof:
‘‘(2) The Commission shall publish an annual, non-
classified, report describing—
‘‘(A) the status and schedule of pending permit,
licensing, and enforcement proceedings, including
annual licenses, rehearing requests, and judicial ap-
peals;
‘‘(B) the collection of annual charges and the
reimbursement of a portion to agencies that incurred
reasonable and necessary costs; and
‘‘(C) recurring disputes or problems in imple-
mentation of this part.
After consultation with other affected Federal and State
agencies, the Commission shall publish a draft report in
draft form for public comment. The final report shall in-
clude the Commission’s responses to comments filed with
the Commission on the draft report.’’.
SEC. 4. REHEARING PETITIONS.
Section 313 (a) of the Federal Power Act (16 U.S.C.
313(a)) is amended by adding the following at the end
thereof: ‘‘The Commission shall make a final determina-
tion of each rehearing petition with respect to an order
issued under Part I of this Act on the merits within 6
months after receiving the petition.’’.
SEC. 5. LICENSING SCHEDULE AND ENVIRONMENTAL RE-
VIEW.
Section 4 of the Federal Power Act (16 U.S.C. 797)
is amended by adding the following at the end thereof:
‘‘(h)(1) As promptly as practicable following accept-
ance of an original license, permit, or exemption applica-
tion, or receipt of notice of intent to file a new license
application, the Commission shall notify the Secretaries of
departments referred to in the first proviso of subsection
(e), the Secretary referred to in section 18, the agencies
referred to in section 10(j), and affected State agencies.
Within 30 days of receiving such notice, such Secretaries
shall submit to the Commission a proposed schedule for
completing such department’s actions with respect to the
application concerned. Not later than 60 days following
acceptance of such an application or receipt of such notice
of intent, the Commission shall publish an estimated
schedule for all actions by the applicant, Commission, and
other parties to the proceeding concerned. The Commis-
sion may periodically amend the schedule in the course
of the proceeding and undertake affirmative actions, in-
cluding substantial cooperation with other jurisdictional
agencies, to assure an expeditious decision.
‘‘(2) As promptly as practicable following acceptance
of an original license, permit, or exemption application,
or receipt of notice of intent to file a new license applica-
tion, the Commission shall commence all environmental
studies to be carried out by the Commission.
‘‘(3) The Commission shall require any person apply-
ing for an original license, permit, or exemption or for a
new license to conduct all studies required by the Secre-
taries of departments referred to in the first proviso of
subsection (e), the Secretary referred to in section 18, the
agencies referred to in section 10(j), and affected State
agencies. The Commission shall incorporate the environ-
mental studies provided by such Secretaries and agencies
into any environmental review provided by the Commission
in connection with the application.
‘‘(4) After notice and opportunity for comment, the
Commission shall prepare and make public draft license
articles for purposes of environmental review, including
any environmental review conducted by the departments
referred to in the first proviso of subsection (e), the Sec-
retary referred to in section 18 and the agencies referred
to in section 10(j).
‘‘(5) Each agency prescribing conditions under the
first proviso of subsection (e) and the Secretary referred
to in section 18 shall each promulgate rules that set forth
procedures for issuance of draft and final conditions con-
sistent with the development of the Commission’s draft
and final environmental review documents and decision
documents if all information deemed necessary by the Sec-
retary of the agency concerned is furnished by the Com-
mission or the license applicant in a timely manner. The
rule shall include opportunities for public comment on
both draft and final conditions. Such agencies shall adopt
a final condition not later than 3 months after publication
of final environmental review document.’’.
SEC. 6. AGENCY CONDITIONS.
Section 10(j) of the Federal Power Act (16 U.S.C.
803(j)) is amended by adding the following before the last
sentence: ‘‘Such findings shall be submitted to the agency
concerned, together with the Commission’s justification
for the findings, and such agency may resubmit the agen-
cy’s recommendations to the Commission under this sub-
section with such modifications as the agency deems nec-
essary.’’.
SEC. 7. LICENSE DURATION.
Section 6 and section 10(i) of the Federal Power Act
(16 U.S.C. 799 and 803(i)) are each amended by striking
‘‘fifty’’ and inserting ‘‘thirty’’ and section 15(e) of such
Act is amended by striking ‘‘not less than 30 years, nor
more than 50’’ and inserting ‘‘not more than 15’’.
SEC. 8. FEES AND CHARGES.
Section 10(e) of the Federal Power Act (16 U.S.C.
797(e)) is amended by adding the following at the end
thereof:
‘‘(5) The Commission shall collect fees on behalf of
State agencies as well as Federal agencies. Annual charges
shall include the reasonable and necessary costs of the
State agencies issuing certifications of compliance with
section 401 of the Clean Water Act. The agency incurring
costs collected for administration of this part shall provide
adequate and timely documentation according to proce-
dures adopted by the Commission. This portion of such
annual charges shall be paid into a revolving fund admin-
istered by the Commission, to be available to the Commis-
sion to reimburse the agencies without annual appropria-
tion. The charge for use and occupancy of Federal lands
shall be set at fair market value. 50 percent of the fees
collected for the use of those lands (other than tribal
lands) shall be deposited in a river restoration revolving
fund administered by the land managing agency and the
remaining 50 percent shall be transferred to the county
in which the project resides to be expended for watershed
and streambed conservation and protection and for water
quality protection and improvement.’’.
SEC. 9. AVAILABILITY OF SUFFICIENT FUNDS.
(a) BOND.—Section 10(c) of the Federal Power Act
(16 U.S.C. 803(c)) is amended by adding the following
at the end thereof: ‘‘The Commission shall require each
licensee to maintain a bond or other proof of financial re-
sponsibility adequate to assure that sufficient funds will
be available at the end of the useful life of the project,
or in the event of abandonment of the project, for the de-
commissioning of the project and the restoration of the
lands and waters affected by the project to the conditions
that existed prior to construction of the project, to the
extent feasible.’’.
(b) EFFECTIVE DATE.—The amendment made by
this section shall take effect on the date one year after
the enactment of this Act. The Commission shall promul-
gate regulations under the amendment made by this para-
graph not later than 6 months after the enactment of this
Act.
SEC. 10. BASELINE.
Section 10(j) of the Federal Power Act (16 U.S.C.
803(j)) is amended by adding the following at the end
thereof:
‘‘(3) In its analysis of project impacts, the Commis-
sion shall consider its baseline of analysis to be the river
without the project.’’.
SEC. 11. ANNUAL LICENSES.
Section 15(a)(1) of the Federal Power Act (16 U.S.C.
808(a)(1)) is amended by adding the following at the end
thereof: ‘‘Annual licenses shall contain interim terms and
conditions deemed necessary by Federal and State re-
source agencies to comply with standards and other legal
requirements for beneficial uses of affected waters. The
terms of any new license for a project shall be reduced
by one year for each annual license issued for such
project.’’.
SEC. 12. AGENCY COSTS.
The first proviso of section 10(e)(1) of the Federal
Power Act (16 U.S.C. 803(e)(1)) is amended by striking
‘‘subject to annual appropriations Acts’’ and by striking
‘‘shall be available’’ and inserting ‘‘shall be retained by
the Commission and transferred to each such consulting
agency by the Commission and available, without further
appropriation,’’.
SEC. 13. OFFICE OF PUBLIC PARTICIPATION.
Section 319(b) of the Federal Power Act (16 U.S.C.
825q–1(b)is amended as follows:
(1) Paragraph (2) is amended to read as fol-
lows:
‘‘(2) The Commission shall reimburse any person
granted intervener status in any proceeding under Part
I of this Act for reasonable attorney’s fees, expert witness
fees, and other costs incurred by such person to intervene
and participate in such proceeding.’’.
(2) Paragraph (4) is amended to read as fol-
lows:
‘‘(4) There are authorized to be appropriated to the
Commission to carry out this section $5,000,000 for each
fiscal year beginning after the enactment of this para-
graph.’’.
SEC. 14. ROYALTY FOR USE OF PUBLIC WATERS.
Section 10(e) of the Federal Power Act (16 U.S.C.
803(e)) is amended by adding the following at the end
thereof:
‘‘(5) In addition to the annual charges under the pre-
ceding provisions of this subsection, the Commission shall
require the licensee of each project under this part to pay
to the United States for deposit into the General Fund
of the Treasury a royalty in the amount of 1 mill per kilo-
watt hour of electricity generated by the project. Such roy-
alty shall be paid at such times and in such manner as
the Commission shall prescribe. 50 percent of amount of
such royalties received with respect to licensed projects in
each State in each fiscal year are authorized to be appro-
priated to the State for purposes of fish and wildlife en-
hancement projects in such State.’’.
SEC. 15. MULTIPLE PROJECTS ON A WATERWAY.
Section 10 of the Federal Power Act (16 U.S.C. 803)
is amended by adding the following new subsection at the
end thereof:
‘‘(k) MULTIPLE PROJECTS.—In the case of a project
in a watershed in which other projects licensed by the
Commission are operating, to the maximum extent prac-
ticable, the Commission shall establish license conditions
for each of such projects such as will adequately and equi-
tably protect, mitigate damages to, and enhance fish and
wildlife (including relating spawning grounds and habitat)
affected by the cumulative impacts of all such projects on
fish and wildlife.’’.
SEC. 16. ALTERNATIVE CONDITIONS AND FISHWAYS.
(a) ALTERNATIVE MANDATORY CONDITIONS.—Sec-
tion 4 of the Federal Power Act (16 U.S.C. 797) is
amended by adding at the end the following:
‘‘(h)(1) Whenever any person applies for a license for
any project works within any reservation of the United
States, and the Secretary of the department under whose
supervision such reservation falls deems a condition to
such license to be necessary under the first proviso of sub-
section (e), the license applicant or any other party to the
licensing proceeding may propose an alternative condition.
‘‘(2) Notwithstanding the first proviso of subsection
(e), the Secretary of the department under whose super-
vision the reservation falls shall accept the proposed alter-
native condition referred to in paragraph (1), and the
Commission shall include in the license such alternative
condition, if the Secretary of the appropriate department
determines, based on substantial evidence provided by the
party proposing such alternative condition, that the alter-
native condition—
‘‘(A) provides equal or greater protection for
the reservation than provided by the condition
deemed necessary 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,
than the condition deemed necessary by the Secretary.
‘‘(3) Within one year after the enactment of this sub-
section, each Secretary concerned shall, by rule, establish
a process to expeditiously resolve conflicts arising under
this subsection.’’.
(b) ALTERNATIVE FISHWAYS.—Section 18 of the
Federal Power Act (16 U.S.C. 811) is amended by—
(1) inserting ‘‘(a)’’ before the first sentence;
and
(2) adding at the end the following:
‘‘(b)(1) Whenever the Commission shall require a li-
censee to construct, maintain, or operate a fishway pre-
scribed by the Secretary of the Interior or the Secretary
of Commerce under this section, the licensee or any other
party to the proceeding may propose an alternative to such
prescription to construct, maintain, or operate a fishway.
‘‘(2) Notwithstanding subsection (a), 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 party
proposing such alternative, that the alternative—