[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 2319 Reported in Senate (RS)]






                                                       Calendar No. 618
108th CONGRESS
  2d Session
                                S. 2319

                          [Report No. 108-299]

To authorize and facilitate hydroelectric power licensing of the Tapoco 
                                Project.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 19, 2004

 Mr. Alexander introduced the following bill; which was read twice and 
       referred to the Committee on Energy and Natural Resources

                              July 7, 2004

              Reported by Mr. Domenici, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL


 
To authorize and facilitate hydroelectric power licensing of the Tapoco 
                                Project.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Tapoco Project Licensing 
Act of 2004''.</DELETED>

<DELETED>SEC. 2. PURPOSE.</DELETED>

<DELETED>    The purpose of this Act is to resolve jurisdictional 
issues regarding hydroelectric power licensing of FERC Project No. 2169 
(the Tapoco Project or Project) by authorizing--</DELETED>
        <DELETED>    (1) the Secretary of the Interior to complete, as 
        soon as practicable after the date of enactment of this Act, an 
        exchange of certain land; and</DELETED>
        <DELETED>    (2) after the exchange of land is completed, the 
        Federal Energy Regulatory Commission to license the 
        Project.</DELETED>

<DELETED>SEC. 3. DEFINITIONS.</DELETED>

<DELETED>    In this Act:</DELETED>
        <DELETED>    (1) APGI.--The term ``APGI'' means Alcoa Power 
        Generating Inc. (including its successors and 
        assigns).</DELETED>
        <DELETED>    (2) Attorney general.--The term ``Attorney 
        General'' means the Attorney General of the United 
        States.</DELETED>
        <DELETED>    (3) Commission.--The term ``Commission'' means the 
        Federal Energy Regulatory Commission.</DELETED>
        <DELETED>    (4) Park.--The term ``Park'' means the Great Smoky 
        Mountains National Park.</DELETED>
        <DELETED>    (5) Project.--The term ``Project'' means FERC 
        Project No. 2169 (the Tapoco Project or Project), including the 
        Chilhowee Dam and reservoir in the State.</DELETED>
        <DELETED>    (6) Secretary.--The term ``Secretary'' means the 
        Secretary of the Interior.</DELETED>
        <DELETED>    (7) Settlement agreement.--The term ``Settlement 
        Agreement'' means the agreement filed with the Commission among 
        the settling parties reached in the licensing of the Project 
        that describes the operational and protection, mitigation, and 
        enhancement measures for operation of the Project.</DELETED>
        <DELETED>    (8) State.--The term ``State'' means the State of 
        Tennessee.</DELETED>

<DELETED>SEC. 4. LAND EXCHANGE.</DELETED>

<DELETED>    (a) In General.--The Secretary shall offer to acquire from 
APGI--</DELETED>
        <DELETED>    (1) subject to any encumbrances existing before 
        February 21, 2003, approximately 186 acres of land (within the 
        authorized boundary of the Park) located northeast of United 
        States Highway 129 and southwest of the Tennessee Valley 
        Authority power line; in exchange for</DELETED>
        <DELETED>    (2) approximately 100 acres of land within the 
        Park that are--</DELETED>
                <DELETED>    (A) adjacent to or flooded by the 
                Chilhowee Reservoir;</DELETED>
                <DELETED>    (B) within the boundary of the Tapoco 
                Project as of February 21, 2003; and</DELETED>
                <DELETED>    (C) shown on the map entitled ``Tapoco 
                Hydroelectric Project, P-2169, Settlement Agreement, 
                Appendix C-5, Proposed Land Swap Areas, National Park 
                Service and APGI'', numbered TP514, Issue No. 8, and 
                dated March 11, 2004.</DELETED>
<DELETED>    (b) Conservation Easement.--The Secretary shall reserve a 
conservation easement over any land transferred to APGI that shall--
</DELETED>
        <DELETED>    (1) specifically prohibit any development of the 
        land by APGI, other than any development that is--</DELETED>
                <DELETED>    (A) necessary for the continued operation 
                and maintenance of the Chilhowee Reservoir; 
                or</DELETED>
                <DELETED>    (B) required by the Commission;</DELETED>
        <DELETED>    (2) authorize public access to the easement area 
        subject to Park regulations and the terms and restrictions 
        imposed by the Commission in any license the Commission may 
        issue for the project; and</DELETED>
        <DELETED>    (3) authorize the National Park Service to enforce 
        Park regulations on the land and in and on the waters of 
        Chilhowee Reservoir lying on the land, to the extent not 
        inconsistent with any license conditions considered necessary 
        by the Commission.</DELETED>
<DELETED>    (c) Reversion.--The deed from the Secretary to APGI shall 
contain a provision that requires the fee simple title for the 
Chilhowee Dam to revert to the United States if the Dam is breached or 
removed.</DELETED>
<DELETED>    (d) Unsuitable Land.--</DELETED>
        <DELETED>    (1) In general.--If the Secretary determines that 
        all or part of a tract of land acquired under subsection (a) is 
        unsuitable for the Park, the Secretary shall provide APGI with 
        an opportunity to make the tract suitable for inclusion in the 
        Park.</DELETED>
        <DELETED>    (2) Land not suitable.--If APGI is unable to make 
        the tract suitable for inclusion in the Park (as determined by 
        the Secretary) or elects not to make the tract suitable for 
        inclusion--</DELETED>
                <DELETED>    (A) the transfer of the land is voided, on 
                written notice from the Secretary to APGI; 
                and</DELETED>
                <DELETED>    (B) the Secretary shall negotiate an 
                acquisition for inclusion in the Park of suitable land 
                that is--</DELETED>
                        <DELETED>    (i) of approximately equal value 
                        to the land acquired by APGI for inclusion in 
                        the Park; and</DELETED>
                        <DELETED>    (ii) within or adjacent to the 
                        boundary of the Park.</DELETED>
<DELETED>    (e) Action for Fair Market Value of Land.--</DELETED>
        <DELETED>    (1) In general.--If the Secretary determines that 
        negotiations for substitute land described in subsection 
        (d)(2)(B) are at an impasse, the Secretary shall request the 
        Attorney General to seek compensation for--</DELETED>
                <DELETED>    (A) the fair market value of the land or 
                interests in land that would have been transferred to 
                the Park had the land not been affected by the 
                encumbrances or defects that made the land unsuitable 
                for inclusion in the Park; and</DELETED>
                <DELETED>    (B) the costs and litigation expenses of 
                the United States, including attorney fees.</DELETED>
        <DELETED>    (2) Funds.--All funds recovered from any action 
        under paragraph (1) shall--</DELETED>
                <DELETED>    (A) be immediately available, without 
                further appropriation from the Treasury, for use by the 
                Secretary for acquisition of land within or adjacent to 
                the boundaries of the Park from willing sellers; 
                and</DELETED>
                <DELETED>    (B) remain available until 
                expended.</DELETED>
        <DELETED>    (3) Effect on conveyance.--Nothing in this 
        subsection affects a conveyance by the United States to APGI 
        under subsection (a).</DELETED>
<DELETED>    (f) Boundary Adjustment.--</DELETED>
        <DELETED>    (1) In general.--On completion of an exchange 
        authorized under this section, the Secretary shall--</DELETED>
                <DELETED>    (A) adjust the boundary of the Park to 
                reflect the exchange; and</DELETED>
                <DELETED>    (B) administer any acquired land as part 
                of the Park in accordance with applicable law 
                (including regulations).</DELETED>
        <DELETED>    (2) Public notice.--The Secretary shall publish in 
        the Federal Register notice of any boundary revised under this 
        subsection.</DELETED>
<DELETED>    (g) Compliance With Other Laws.--An exchange of land under 
this section is deemed to meet the requirements of--</DELETED>
        <DELETED>    (1) the National Environmental Policy Act of 1969 
        (42 U.S.C. 4321 et seq.);</DELETED>
        <DELETED>    (2) the National Historic Preservation Act (16 
        U.S.C. 470 et seq.); and</DELETED>
        <DELETED>    (3) the land exchange provisions of the Land and 
        Water Conservation Fund Act of 1965 (16 U.S.C. 460l-4 et 
        seq.).</DELETED>

<DELETED>SEC. 5. LICENSING.</DELETED>

<DELETED>    Notwithstanding any other provision of law, on completion 
of the land exchange or acquisition of equivalent land under section 4, 
the Commission shall have jurisdiction to license the Project 
.</DELETED>

<DELETED>SEC. 6. LAND ACQUISITION.</DELETED>

<DELETED>    (a) Secretary of the Interior.--</DELETED>
        <DELETED>    (1) In general.--The Secretary may acquire, for 
        the United States, title to land in the State that may be 
        transferred by APGI to any nongovernmental organization (as 
        shown on the map entitled ``Tapoco Hydroelectric Project, P-
        2169, Settlement Agreement, Appendix C-5, Proposed Land 
        Conveyances in Tennessee'', numbered TP616, Issue No. 15, and 
        dated March 11, 2004) pursuant to the Settlement 
        Agreement.</DELETED>
        <DELETED>    (2) Boundary adjustment.--The Secretary shall--
        </DELETED>
                <DELETED>    (A) adjust the boundary of the Park to 
                include any land acquired under paragraph (1); 
                and</DELETED>
                <DELETED>    (B) publish notice of the adjustment in 
                the Federal Register.</DELETED>
<DELETED>    (b) Secretary of Agriculture.--</DELETED>
        <DELETED>    (1) In general.--The Secretary of Agriculture may 
        acquire, for the United States, title to land in the State that 
        may be transferred to any nongovernmental organization pursuant 
        to the Settlement Agreement described in subsection 
        (a)(1).</DELETED>
        <DELETED>    (2) Boundary adjustment.--The Secretary of 
        Agriculture shall--</DELETED>
                <DELETED>    (A) adjust the boundary of the Cherokee 
                National Forest to include any land acquired under 
                paragraph (1); and</DELETED>
                <DELETED>    (B) publish notice of the adjustment in 
                the Federal Register.</DELETED>
        <DELETED>    (3) Management.--The Secretary of Agriculture 
        shall evaluate whether it is feasible and practicable to manage 
        any land acquired for the Cherokee National Forest under 
        paragraph (1) in a manner that retains the primitive, back-
        country character of the land.</DELETED>

<DELETED>SEC. 7. AUTHORIZATION FOR APPROPRIATIONS.</DELETED>

<DELETED>    There are authorized to be appropriated such sums as are 
necessary for the United States to acquire interests in land and to 
otherwise effectuate the purposes and terms of the land transfer 
provisions of the Settlement Agreement.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Tapoco Project Licensing Act of 
2004''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) APGI.--The term ``APGI'' means Alcoa Power Generating 
        Inc. (including its successors and assigns).
            (2) Commission.--The term ``Commission'' means the Federal 
        Energy Regulatory Commission.
            (3) Map.--The term ``map'' means the map entitled ``Tapoco 
        Hydroelectric Project, P-2169, Settlement Agreement, Appendix 
        B, Proposed Land Swap Areas, National Park Service and APGI'', 
        numbered TP514, Issue No. 9, and dated June 8, 2004.
            (4) Park.--The term ``Park'' means Great Smoky Mountains 
        National Park.
            (5) Project.--The term ``Project'' means the Tapoco 
        Hydroelectric Project, FERC Project No. 2169, including the 
        Chilhowee Dam and Reservoir in the State of Tennessee.
            (6) Secretary.--The term ``Secretary'' means the Secretary 
        of the Interior.

SEC. 3. LAND EXCHANGE.

    (a) Authorization.--
            (1) In general.--Upon the conveyance by APGI of title 
        acceptable to the Secretary of the land identified in paragraph 
        (2), the Secretary shall simultaneously convey to APGI title to 
        the land identified in paragraph (3).
            (2) Description of land to be conveyed by APGI.--The land 
        to be conveyed by APGI to the Secretary is the approximately 
        186 acres of land, subject to any encumbrances existing before 
        February 21, 2003--
                    (A) within the authorized boundary of the Park, 
                located northeast of United States Highway 129 and 
                adjacent to the APGI power line; and
                    (B) as generally depicted on the map as ``Proposed 
                Property Transfer from APGI to National Park Service''.
            (3) Description of land to be conveyed by the secretary.--
        The land to be conveyed by the Secretary to APGI are the 
        approximately 110 acres of land within the Park that are--
                    (A) adjacent to or flooded by the Chilhowee 
                Reservoir;
                    (B) within the boundary of the Project as of 
                February 21, 2003; and
                    (C) as generally depicted on the map as ``Proposed 
                Property Transfer from National Park Service to APGI''.
    (b) Minor Adjustments to Conveyed Land.--The Secretary and APGI may 
mutually agree to make minor boundary or acreage adjustments to the 
land identified in paragraphs (2) and (3) of subsection (a).
    (c) Opportunity To Mitigate.--If the Secretary determines that all 
or part of the land to be conveyed to the Park under subsection (a) is 
unsuitable for inclusion in the Park, APGI shall have the opportunity 
to make the land suitable for inclusion in the Park.
    (d) Conservation Easement.--The Secretary shall reserve a 
conservation easement over any land transferred to APGI under 
subsection (a)(3) that, subject to any terms and conditions imposed by 
the Commission in any license that the Commission may issue for the 
Project, shall--
            (1) specifically prohibit any development of the land by 
        APGI, other than any development that is necessary for the 
        continued operation and maintenance of the Chilhowee Reservoir;
            (2) authorize public access to the easement area, subject 
        to National Park Service regulations; and
            (3) authorize the National Park Service to enforce Park 
        regulations on the land and in and on the waters of Chilhowee 
        Reservoir lying on the land, to the extent not inconsistent 
        with any license condition considered necessary by the 
        Commission.
    (e) Applicability of Certain Laws.--Section 5(b) of Public Law 90-
401 (16 U.S.C. 460l-22(b)), shall not apply to the land exchange 
authorized under this section.
    (f) Reversion.--
            (1) In general.--The deed from the Secretary to APGI shall 
        contain a provision that requires the land described in 
        subsection (a)(3) to revert to the United States if--
                    (A) the Chilhowee Reservoir ceases to exist; or
                    (B) the Commission issues a final order 
                decommissioning the Project from which no further 
                appeal may be taken.
            (2) Applicable law.--A reversion under this subsection 
        shall not eliminate APGI's responsibility to comply with all 
        applicable provisions of the Federal Power Act (16 U.S.C. 791a 
        et seq.), including regulations.
    (g) Boundary Adjustment.--
            (1) In general.--On completion of the land exchange 
        authorized under this section, the Secretary shall--
                    (A) adjust the boundary of the Park to include the 
                land described in subsection (a)(2); and
                    (B) administer any acquired land as part of the 
                Park in accordance with applicable law (including 
                regulations).
            (2) National park service land.--Notwithstanding the 
        exchange of land under this section, the land described in 
        subsection (a)(3) shall remain in the boundary of the Park.
            (3) Public notice.--The Secretary shall publish in the 
        Federal Register notice of any boundary revised under paragraph 
        (1).

SEC. 4. PROJECT LICENSING.

    Notwithstanding the continued inclusion of the land described in 
section 3(a)(3) in the boundary of the Park (including any modification 
made pursuant to section 3(b)) on completion of the land exchange, the 
Commission shall have jurisdiction to license the Project.

SEC. 5. LAND ACQUISITION.

    (a) In General.--The Secretary or the Secretary of Agriculture may 
acquire, by purchase, donation, or exchange, any land or interest in 
land that--
            (1) may be transferred by APGI to any nongovernmental 
        organization; and
            (2) is identified as ``Permanent Easement'' or ``Term 
        Easement'' on the map entitled ``Tapoco Hydroelectric Project, 
        P-2169, Settlement Agreement, Appendix B, Proposed Land 
        Conveyances in Tennessee'', numbered TP616, Issue No. 15, and 
        dated March 11, 2004.
    (b) Land Acquired by the Secretary of the Interior.--The Secretary 
shall--
            (1) adjust the boundary of the Park to include any land or 
        interest in land acquired by the Secretary under subsection 
        (a);
            (2) administer any acquired land or interest in land as 
        part of the Park in accordance with applicable law (including 
        regulations); and
            (3) publish notice of the adjustment in the Federal 
        Register.
    (c) Land Acquired by the Secretary of Agriculture.--
            (1) Boundary adjustment.--The Secretary of Agriculture 
        shall--
                    (A) adjust the boundary of the Cherokee National 
                Forest to include any land acquired under subsection 
                (a);
                    (B) administer any acquired land or interest in 
                land as part of the Cherokee National Forest in 
                accordance with applicable law (including regulations); 
                and
                    (C) publish notice of the adjustment in the Federal 
                Register.
            (2) Management.--The Secretary of Agriculture shall 
        evaluate the feasibility of managing any land acquired by the 
        Secretary of Agriculture under subsection (a) in a manner that 
        retains the primitive, back-country character of the land.

SEC. 6. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated such sums as are necessary 
to carry out this Act.




                                                       Calendar No. 618

108th CONGRESS

  2d Session

                                S. 2319

                          [Report No. 108-299]

_______________________________________________________________________

                                 A BILL

To authorize and facilitate hydroelectric power licensing of the Tapoco 
                                Project.

_______________________________________________________________________

                              July 7, 2004

                       Reported with an amendment