I 
108TH CONGRESS 
1ST SESSION H. R. 1013
To amend the Federal Power Act to provide for alternative conditions and 
alternative fishways in hydroelectric dam licenses, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
FEBRUARY 27, 2003
Mr. RADANOVICH (for himself, Mr. HASTINGS of Washington, and Mr. WAL-
DEN of Oregon) introduced the following bill; which was referred to the 
Committee on Energy and Commerce 
A BILL 
To amend the Federal Power Act to provide for alternative 
conditions and alternative fishways in hydroelectric dam 
licenses, 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. 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 (referred to in this sub-
section as ‘the Secretary‘) deems a condition to such li-
cense to be necessary under the first proviso of subsection 
(e), the license applicant may propose an alternative condi-
tion. The license applicant shall be entitled to a determina-
tion on the record after opportunity for an agency trial-
type hearing of any disputed issues of material fact. 
‘‘(2) Notwithstanding the first proviso of subsection 
(e), the Secretary shall accept the proposed alternative 
condition referred to in paragraph (1), and the Commis-
sion shall include in the license such alternative condition, 
if the Secretary determines, based on substantial evidence 
provided by the license applicant that such alternative con-
dition—
‘‘(A) provides for the adequate protection and 
utilization for the reservation; and 
‘‘(B) will either—
‘‘(i) cost less to implement, or 
‘‘(ii) result in improved operation of the 
project works for electricity production, as com-
pared to the condition initially deemed nec-
essary by the Secretary. 
‘‘(3) The Secretary shall submit into the public 
record of the Commission proceeding with any condition 
under subsection (e) or alternative condition it accepts
under this subsection a written statement explaining the 
basis for such condition, and reason for not accepting any 
alternative condition under this subsection. 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, drinking, irriga-
tion, and recreational water supply, and air quality, in ad-
dition to the preservation of other aspects of environ-
mental quality, based on such information as may be avail-
able to the Secretary, including information voluntarily 
provided in a timely manner by the applicant and others. 
The Secretary shall also submit, together with the afore-
mentioned written statement, all studies, data, and other 
factual information available to the Secretary and relevant 
to the Secretary’s decision. 
‘‘(4) Nothing in this subsection shall prohibit other 
interested parties from proposing alternative conditions. 
‘‘(5) If the Secretary does not accept an applicant’s 
alternative condition under this subsection, and the Com-
mission finds that the Secretary’s condition would be in-
consistent with the purposes and requirements of this 
Part, or other applicable law, the Commission may refer 
the dispute to the Commission’s Dispute Resolution Serv-
ice. The Dispute Resolution Service shall consult with the
Secretary and the Commission and issue a non-binding ad-
visory within 90 days. The Secretary may accept the Dis-
pute Resolution Service advisory unless the Secretary 
finds that the recommendation will not adequately protect 
the reservation. The Secretary shall submit the advisory 
and the Secretary’s final written determination into the 
record of the Commission proceeding.’’. 
(b) ALTERNATIVE FISHWAYS.—Section 18 of the 
Federal Power Act (16 U.S.C. 811) is amended as follows: 
(1) By inserting ‘‘(a)’’ before the first sentence. 
(2) By adding at the end the following: 
‘‘(b)(1) Whenever the Secretary of the Interior or the 
Secretary of Commerce prescribes a fishway under this 
section, the license applicant or the licensee may propose 
an alternative to such prescription to construct, maintain, 
oroperate a fishway. The license applicant shall be entitled 
to a determination on the record after opportunity for an 
agency trial-type hearing of any disputed issues of mate-
rial fact. 
‘‘(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 li-
censee, that the alternative—
‘‘(A) will be no less protective of the fish re-
sources 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 com-
pared to the fishway initially prescribed by the 
Secretary. 
‘‘(3) The Secretary concerned shall submit into the 
public record of the Commission proceeding with any pre-
scription under subsection (a) or alternative prescription 
it accepts under this subsection a written statement ex-
plaining the basis for such prescription, and reason for 
not accepting any alternative prescription under this sub-
section. The written statement must demonstrate that the 
Secretary gave equal consideration to the effects of the 
prescription adopted or alternative not accepted on energy 
supply, distribution, cost, and use, flood control, naviga-
tion, drinking, irrigation, and recreational water supply, 
and air quality, in addition to the preservation of other 
aspects of environmental quality, based on such informa-
tion as may be available to the Secretary, including infor-
mation voluntarily provided in a timely manner by the ap-
plicant 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 subsection shall prohibit other 
interested parties from proposing alternative prescrip-
tions. 
‘‘(5) If the Secretary does not accept an applicant’s 
alternative prescription under this subsection, and the 
Commission finds that the Secretary’s prescription would 
be inconsistent with the purposes and requirements of this 
Part, or other applicable law, the Commission may refer 
the dispute to the Commission’s Dispute Resolution Serv-
ice. The Dispute Resolution Service shall consult with the 
Secretary and the Commission and issue a non-binding ad-
visory within 90 days. The Secretary may accept the Dis-
pute Resolution Service advisory unless the Secretary 
finds that the recommendation will not adequately protect 
the fish resources. The Secretary shall submit the advisory 
and the Secretary’s final written determination into the 
record of the Commission proceeding.’’.
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