[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1013 Introduced in House (IH)]







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. Walden 
  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 Representatives of the 
United States of America in Congress assembled,

SECTION 1. 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 (referred 
to in this subsection as `the Secretary`) deems a condition to such 
license to be necessary under the first proviso of subsection (e), the 
license applicant may propose an alternative condition. 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 
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 Commission shall include in the license such 
alternative condition, if the Secretary determines, based on 
substantial evidence provided by the license applicant that such 
alternative condition--
            ``(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 compared to the 
                condition initially deemed necessary 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, irrigation, and recreational water supply, and 
air quality, in addition to the preservation of other aspects of 
environmental quality, based on such information 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, 
together 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 conditions.
    ``(5) If the Secretary does not accept an applicant's alternative 
condition under this subsection, and the Commission finds that the 
Secretary's condition 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 Service. The 
Dispute Resolution Service shall consult with the Secretary and the 
Commission and issue a non-binding advisory within 90 days. The 
Secretary may accept the Dispute 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 material 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 require, the proposed alternative 
referred to in paragraph (1) if the Secretary of the appropriate 
department determines, based on substantial evidence provided by the 
licensee, that the alternative--
            ``(A) will be no less protective of the fish resources 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 prescribed by the Secretary.
    ``(3) The Secretary concerned shall submit into the public record 
of the Commission proceeding with any prescription under subsection (a) 
or alternative prescription it accepts under this subsection a written 
statement explaining the basis for such prescription, and reason for 
not accepting any alternative prescription under this subsection. 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, navigation, drinking, irrigation, and recreational water 
supply, and air quality, in addition to the preservation of other 
aspects of environmental quality, based on such information 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, together 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 prescriptions.
    ``(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 Service. The 
Dispute Resolution Service shall consult with the Secretary and the 
Commission and issue a non-binding advisory within 90 days. The 
Secretary may accept the Dispute 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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