[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3800 Introduced in House (IH)]







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 Representatives 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 consultation with other 
appropriate Federal and State departments and agencies, and after 
receiving comments from representatives of the hydroelectric power 
generation industry and other affected interests, shall, by rule, 
promulgate 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 conformity with subsection (a) at 5-year 
intervals thereafter.
    (c) Incentives for Installation of Advanced Turbines.--(1) The 
Federal Energy Regulatory Commission 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 expiration of existing 
licenses, the Federal Energy Regulatory Commission shall give a 
priority in the scheduling of its licensing processes to licensees that 
have installed advanced 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, nonclassified, report 
describing--
            ``(A) the status and schedule of pending permit, licensing, 
        and enforcement proceedings, including annual licenses, 
        rehearing requests, and judicial appeals;
            ``(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 implementation 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 include 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 determination 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 REVIEW.

    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 acceptance of an 
original license, permit, or exemption application, 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 Commission may periodically amend the 
schedule in the course of the proceeding and undertake affirmative 
actions, including 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 application, the Commission 
shall commence all environmental studies to be carried out by the 
Commission.
    ``(3) The Commission shall require any person applying for an 
original license, permit, or exemption or for a new license to conduct 
all studies required by 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. The Commission shall incorporate the environmental 
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 
Secretary 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 consistent with the development of the Commission's 
draft and final environmental review documents and decision documents 
if all information deemed necessary by the Secretary of the agency 
concerned is furnished by the Commission 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 agency's recommendations to the Commission under this 
subsection with such modifications as the agency deems necessary.''.

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 procedures 
adopted by the Commission. This portion of such annual charges shall be 
paid into a revolving fund administered by the Commission, to be 
available to the Commission to reimburse the agencies without annual 
appropriation. 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 responsibility 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 decommissioning 
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 promulgate regulations under the amendment made by 
this paragraph 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 Commission 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 resource 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 follows:
    ``(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 follows:
    ``(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 paragraph.''.

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 preceding 
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 kilowatt hour of electricity generated by the 
project. Such royalty 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 appropriated to the State for purposes of 
fish and wildlife enhancement 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 practicable, the Commission shall establish license 
conditions for each of such projects such as will adequately and 
equitably 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.--Section 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 
subsection (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 supervision the reservation 
falls shall accept the proposed alternative 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 alternative 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 subsection, 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 licensee to 
construct, maintain, or operate a fishway prescribed 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 require, the proposed alternative 
referred to in paragraph (1), if the Secretary of the appropriate 
department determines, based on substantial evidence provided by the 
party proposing such alternative, that the alternative--
            ``(A) will be equally or more effective 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,
than the fishway initially prescribed by the Secretary.
    ``(3) Within one year after the enactment of this subsection, the 
Secretary of the Interior and the Secretary of Commerce shall each, by 
rule, establish a process to expeditiously resolve conflicts arising 
under this subsection.''.

SEC. 17. FERC DATA ON HYDROELECTRIC LICENSING.

    (a) Data Collection Procedures.--The Federal Energy Regulatory 
Commission shall revise its procedures regarding the collection of data 
in connection with the Commission's consideration of hydroelectric 
licenses under the Federal Power Act. Such revised data collection 
procedures shall be designed to provide the Commission with complete 
and accurate information concerning the time and costs to parties 
involved in the licensing process. Such data shall be available for 
each significant stage in the licensing process and shall be designed 
to identify projects with similar characteristics so that analyses can 
be made of the time and costs involved in licensing proceedings based 
upon the different characteristics of those proceedings.
    (b) Reports.--Within 6 months after the date of enactment of this 
Act, the Commission shall notify the Committee on Energy and Commerce 
of the United States House of Representatives and the Committee on 
Energy and Natural Resources of the United States Senate of the 
progress made by the Commission under subsection (a), and within one 
year after such date of enactment, the Commission shall submit a report 
to such Committees specifying the measures taken by the Commission 
pursuant to subsection (a).

SEC. 18. ENFORCEMENT.

    (a) Monitoring and Investigations of Mandatory Conditions and 
Fishway Prescriptions.--The first sentence of section 31(a) of the 
Federal Power Act (16 U.S.C. 823b(a)) is amended to read as follows: 
``The Commission shall monitor, investigate, and enforce compliance 
with each license and permit issued under this part, each condition 
imposed under section 4(e) or 4(h), each fishway prescription imposed 
under section 18, conditions of State water quality certification and 
protection of fish and game, and each exemption granted from any 
requirement of this part. Nothing in this section shall be construed to 
limit or abridge the authority of agencies administering section 401 of 
the Clean Water Act or to affect the applicability of section 1365 of 
the Clean Water Act.''.
    (b) Compliance Orders.--The third sentence of section 31(a) of the 
Federal Power Act (16 U.S.C. 823(a)) is amended to read as follows: 
``After notice and opportunity for public hearing, the Commission shall 
issue such orders as necessary to require compliance with all of the 
terms and conditions of licenses, permits, and exemptions issued under 
this part, with conditions imposed under section 4(e) or 4(h), with 
fishway prescriptions imposed under section 18, conditions of State 
water quality certification and protection of fish and game, and with 
the terms and conditions of exemptions granted from any requirement of 
this part.''.
    (c) Changes in Water Quality Standards.--Within 12 months of the 
enactment of this section, the Federal Energy Regulatory Commission 
shall establish procedures to reopen and amend licenses to ensure that 
a project complies with State water quality standards for the duration 
of the license term.

SEC. 19. SUNSHINE IN FINANCIAL ACCOUNTING.

    Section 9 of the Federal Power Act (16 U.S.C. 802) is amended by 
redesignating subsection (c) as paragraph (3) of subsection (a) and by 
adding the following new subsection at the end thereof:
    ``(c) Each applicant for an original license, permit, or exemption 
or for a new license under section 15, shall provide to the Commission 
such financial accounting information, including revenue and net 
revenue projections, regarding the project as would be provided to 
potential investors in the project concerned. Such information shall 
not be considered proprietary, and the Commission shall make such 
information available to the public. The Commission may prescribe such 
rules as may be necessary to carry out this subsection.''.
                                 <all>