I
106TH CONGRESS
1ST SESSION
H. R. 2335
To amend the Federal Power Act to improve the hydroelectric licensing
process by granting the Federal Energy Regulatory Commission statutory
authority to better coordinate participation by other agencies and entities,
and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
JUNE 24, 1999
Mr. TOWNS (for himself, Mr. GILLMOR, Mr. HALL of Texas, Mr. BURR of
North Carolina, Mr. BISHOP, and Mr. HASTINGS of Washington) intro-
duced the following bill; which was referred to the Committee on Com-
merce
A BILL
To amend the Federal Power Act to improve the hydro-
electric licensing process by granting the Federal Energy
Regulatory Commission statutory authority to better co-
ordinate participation by other agencies and entities, 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.
This Act may be cited as the ‘‘Hydroelectric Licens-
ing Process Improvement Act of 1999’’.
SEC. 2. FINDINGS.
Congress finds that—
(1) hydroelectric power is an irreplaceable
source of clean, economic, renewable energy with the
unique capability of supporting reliable electric serv-
ice while maintaining environmental quality;
(2) hydroelectric power is the leading renewable
energy resource of the United States;
(3) hydroelectric power projects provide mul-
tiple benefits to the United States, including recre-
ation, irrigation, flood control, water supply, and
fish and wildlife benefits;
(4) in the next 15 years, the bulk of all non-
Federal hydroelectric power capacity in the United
States is due to be relicensed by the Federal Energy
Regulatory Commission;
(5) the process of licensing hydroelectric
projects by the Commission—
(A) does not produce optimal decisions, be-
cause the agencies that participate in the proc-
ess are not required to consider the full effects
of their mandatory and recommended condi-
tions on a license;
(B) is inefficient, in part because agencies
do not always submit their mandatory and rec-
ommended conditions by a time certain;
(C) is burdened by uncoordinated environ-
mental reviews and duplicative permitting au-
thority; and
(D) is burdensome for all participants and
too often results in litigation; and
(6) while the alternative licensing procedures
available to applicants for hydroelectric project li-
censes provide important opportunities for the col-
laborative resolution of many of the issues in hydro-
electric project licensing, those procedures are not
appropriate in every case and cannot substitute for
statutory reforms of the hydroelectric licensing proc-
ess.
SEC. 3. PURPOSE.
The purpose of this Act is to achieve the objective
of relicensing hydroelectric power projects to maintain
high environmental standards while preserving low cost
power by—
(1) requiring agencies to consider the full ef-
fects of their mandatory and recommended condi-
tions on a hydroelectric power license and to docu-
ment the consideration of a broad range of factors;
(2) requiring the Federal Energy Regulatory
Commission to impose deadlines by which Federal
agencies must submit proposed mandatory and rec-
ommended conditions to a license; and
(3) making other improvements in the licensing
process.
SEC. 4. PROCESS FOR CONSIDERATION BY FEDERAL AGEN-
CIES OF CONDITIONS TO LICENSES.
(a) IN GENERAL.—Part I of the Federal Power Act
(16 U.S.C. 791a et seq.) is amended by adding at the end
the following:
‘‘SEC. 32. PROCESS FOR CONSIDERATION BY FEDERAL
AGENCIES OF CONDITIONS TO LICENSES.
‘‘(a) DEFINITIONS.—In this section:
‘‘(1) 
CONDITION.—The 
term 
‘condition’
means—
‘‘(A) a condition to a license for a project
on a Federal reservation determined by a con-
sulting agency for the purpose of the first pro-
viso of section 4(e); and
‘‘(B) a prescription relating to the con-
struction, maintenance, or operation of a
fishway determined by a consulting agency for
the purpose of the first sentence of section 18.
‘‘(2) CONSULTING
AGENCY.—The term ‘con-
sulting agency’ means—
‘‘(A) in relation to a condition described in
paragraph (1)(A), the Federal agency with re-
sponsibility for supervising the reservation; and
‘‘(B) in relation to a condition described in
paragraph (1)(B), the Secretary of the Interior
or the Secretary of Commerce, as appropriate.
‘‘(b) FACTORS TO BE CONSIDERED.—
‘‘(1) IN GENERAL.—In determining a condition,
a consulting agency shall take into consideration—
‘‘(A) the impacts of the condition on—
‘‘(i) economic and power values;
‘‘(ii) electric generation capacity and
system reliability;
‘‘(iii) air quality (including consider-
ation of the impacts on greenhouse gas
emissions); and
‘‘(iv) drinking, flood control, irriga-
tion, navigation, or recreation water sup-
ply;
‘‘(B) compatibility with other conditions to
be included in the license, including mandatory
conditions of other agencies, when available;
and
‘‘(C) means to ensure that the condition
addresses only direct project environmental im-
pacts, and does so at the lowest project cost.
‘‘(2) DOCUMENTATION.—
‘‘(A) IN GENERAL.—In the course of the
consideration of factors under paragraph (1)
and before any review under subsection (e), a
consulting agency shall create written docu-
mentation detailing, among other pertinent
matters, all proposals made, comments received,
facts considered, and analyses made regarding
each of those factors sufficient to demonstrate
that each of the factors was given full consider-
ation in determining the condition to be sub-
mitted to the Commission.
‘‘(B) SUBMISSION TO THE COMMISSION.—
A consulting agency shall include the docu-
mentation under subparagraph (A) in its sub-
mission of a condition to the Commission.
‘‘(c) SCIENTIFIC REVIEW.—
‘‘(1) IN GENERAL.—Each condition determined
by a consulting agency shall be subjected to appro-
priately substantiated scientific review.
‘‘(2) DATA.—For the purpose of paragraph (1),
a condition shall be considered to have been sub-
jected to appropriately substantiated scientific review
if the review—
‘‘(A) was based on current empirical data
or field-tested data; and
‘‘(B) was subjected to peer review.
‘‘(d) RELATIONSHIP TO IMPACTS ON FEDERAL RES-
ERVATION.—In the case of a condition for the purpose of
the first proviso of section 4(e), each condition determined
by a consulting agency shall be directly and reasonably
related to the impacts of the project within the Federal
reservation.
‘‘(e) ADMINISTRATIVE REVIEW.—
‘‘(1) OPPORTUNITY FOR REVIEW.—Before sub-
mitting to the Commission a proposed condition, and
at least 90 days before a license applicant is re-
quired to file a license application with the Commis-
sion, a consulting agency shall provide the proposed
condition to the license applicant and offer the li-
cense applicant an opportunity to obtain expedited
review before an administrative law judge or other
independent reviewing body of—
‘‘(A) the reasonableness of the proposed
condition in light of the effect that implementa-
tion of the condition will have on the energy
and economic values of a project; and
‘‘(B) compliance by the consulting agency
with the requirements of this section, including
the requirement to consider the factors de-
scribed in subsection (b)(1).
‘‘(2) COMPLETION OF REVIEW.—
‘‘(A) IN GENERAL.—A review under para-
graph (1) shall be completed not more than 180
days after the license applicant notifies the con-
sulting agency of the request for review.
‘‘(B) FAILURE TO MAKE TIMELY COMPLE-
TION OF REVIEW.—If review of a proposed con-
dition is not completed within the time specified
by subparagraph (A), the Commission may
treat a condition submitted by the consulting
agency as a recommendation is treated under
section 10(j).
‘‘(3) REMAND.—If the administrative law judge
or reviewing body finds that a proposed condition is
unreasonable or that the consulting agency failed to
comply with any of the requirements of this section,
the administrative law judge or reviewing body
shall—
‘‘(A) render a decision that—
‘‘(i) explains the reasons for a finding
that the condition is unreasonable and may
make recommendations that the adminis-
trative law judge or reviewing body may
have for the formulation of a condition
that would not be found unreasonable; or
‘‘(ii) explains the reasons for a finding
that a requirement was not met and may
describe any action that the consulting
agency should take to meet the require-
ment; and
‘‘(B) remand the matter to the consulting
agency for further action.
‘‘(4) SUBMISSION TO THE COMMISSION.—Fol-
lowing administrative review under this subsection, a
consulting agency shall—
‘‘(A) take such action as is necessary to—
‘‘(i) withdraw the condition;
‘‘(ii) formulate a condition that fol-
lows the recommendation of the adminis-
trative law judge or reviewing body; or
‘‘(iii) otherwise comply with this sec-
tion; and
‘‘(B) include with its submission to the
Commission of a proposed condition—
‘‘(i) the record on administrative re-
view; and
‘‘(ii) documentation of any action
taken following administrative review.
‘‘(f) SUBMISSION OF FINAL CONDITION.—
‘‘(1) IN
GENERAL.—After an applicant files
with the Commission an application for a license, the
Commission shall set a date by which a consulting
agency shall submit to the Commission a final condi-
tion.
‘‘(2) LIMITATION.—Except as provided in para-
graph (3), the date for submission of a final condi-
tion shall be not later than 1 year after the date on
which the Commission gives the consulting agency
notice that a license application is ready for environ-
mental review.
‘‘(3) DEFAULT.—If a consulting agency does
not submit a final condition to a license by the date
set under paragraph (1)—
‘‘(A) the consulting agency shall not there-
after have authority to recommend or establish
a condition to the license; and
‘‘(B) the Commission may, but shall not be
required to, recommend or establish an appro-
priate condition to the license that—
‘‘(i) furthers the interest sought to be
protected by the provision of law that au-
thorizes the consulting agency to propose
or establish a condition to the license; and
‘‘(ii) conforms to the requirements of
this Act.
‘‘(4) EXTENSION.—The Commission may make
1 extension, of not more than 30 days, of a deadline
set under paragraph (1).
‘‘(g) ANALYSIS BY THE COMMISSION.—
‘‘(1) ECONOMIC
ANALYSIS.—The Commission
shall conduct an economic analysis of each condition
submitted by a consulting agency to determine
whether the condition would render the project un-
economic.
‘‘(2) CONSISTENCY
WITH
THIS
SECTION.—In
exercising authority under section 10(j)(2), the Com-
mission shall consider whether any recommendation
submitted under section 10(j)(1) is consistent with
the purposes and requirements of subsections (b)
and (c) of this section.
‘‘(h) COMMISSION DETERMINATION ON EFFECT OF
CONDITIONS.—When requested by a license applicant in
a request for rehearing, the Commission shall make a writ-
ten determination on whether a condition submitted by a
consulting agency—
‘‘(1) is in the public interest, as measured by
the impact of the condition on the factors described
in subsection (b)(1);
‘‘(2) was subjected to scientific review in ac-
cordance with subsection (c);
‘‘(3) relates to direct project impacts within the
reservation, in the case of a condition for the first
proviso of section 4(e);
‘‘(4) is reasonable;
‘‘(5) is supported by substantial evidence; and
‘‘(6) is consistent with this Act and other terms
and conditions to be included in the license.’’.
(b) CONFORMING AND TECHNICAL AMENDMENTS.—
(1) SECTION 4.—Section 4(e) of the Federal
Power Act (16 U.S.C. 797(e)) is amended—
(A) in the first proviso of the first sentence
by inserting after ‘‘conditions’’ the following: ‘‘,
determined in accordance with section 32,’’; and
(B) in the last sentence, by striking the pe-
riod and inserting ‘‘(including consideration of
the impacts on greenhouse gas emissions)’’.
(2) SECTION
18.—Section 18 of the Federal
Power Act (16 U.S.C. 811) is amended in the first
sentence by striking ‘‘prescribed by the Secretary of
Commerce’’ and inserting ‘‘prescribed, in accordance
with section 32, by the Secretary of the Interior or
the Secretary of Commerce, as appropriate’’.
SEC. 5. COORDINATED ENVIRONMENTAL REVIEW PROCESS.
Part I of the Federal Power Act (16 U.S.C. 791a
et seq.) (as amended by section 3) is amended by adding
at the end the following:
‘‘SEC. 33. COORDINATED ENVIRONMENTAL REVIEW PROC-
ESS.
‘‘(a) LEAD AGENCY RESPONSIBILITY.—The Commis-
sion, as the lead agency for environmental reviews under
the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.) for projects licensed under this part, shall
conduct a single consolidated environmental review—
‘‘(1) for each such project; or
‘‘(2) if appropriate, for multiple projects located
in the same area.
‘‘(b) CONSULTING AGENCIES.—In connection with
the formulation of a condition in accordance with section
32, a consulting agency shall not perform any
environmnental review in addition to any environmental
review performed by the Commission in connection with
the action to which the condition relates.
‘‘(c) DEADLINES.—
‘‘(1) IN GENERAL.—The Commission shall set a
deadline for the submission of comments by Federal,
State, and local government agencies in connection
with the preparation of any environmental impact
statement or environmental assessment required for
a project.
‘‘(2) CONSIDERATIONS.—In setting a deadline
under paragraph (1), the Commission shall take into
consideration—
‘‘(A) the need of the license applicant for
a prompt and reasonable decision;
‘‘(B) the resources of interested Federal,
State, and local government agencies; and
‘‘(C) applicable statutory requirements.’’.
SEC. 6. STUDY OF SMALL HYDROELECTRIC PROJECTS.
(a) IN GENERAL.—Not later than 18 months after
the date of enactment of this Act, the Federal Energy
Regulatory Commission shall submit to the Committee on
Energy and Natural Resources of the Senate and the
Committee on Commerce of the House of Representatives
a study of the feasibility of establishing a separate licens-
ing procedure for small hydroelectric projects.
(b) 
DEFINITION
OF
SMALL
HYDROELECTRIC
PROJECT.—The Commission may by regulation define the
term ‘‘small hydroelectric project’’ for the purpose of sub-
section (a), except that the term shall include at a min-
imum a hydroelectric project that has a generating capac-
ity of 5 megawatts or less.
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