I 112th CONGRESS 2d Session H. R. 6247 IN THE HOUSE OF REPRESENTATIVES August 1, 2012 Mr. Hastings of Washington introduced the following bill; which was referred to the Committee on Natural Resources, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To protect the Federal Columbia River Power System, Power Marketing Administration customers, and Bureau of Reclamation dams and other facilities and to promote new Federal and other hydropower generation.

1.

Short title

This Act may be cited as the Saving Our Dams and New Hydropower Development and Jobs Act of 2012.

2.

Table of contents

The table of contents for this Act is as follows: Sec. 1. Short title. Sec. 2. Table of contents. Sec. 3. Findings. Sec. 4. Bureau of Reclamation conduit hydropower. Sec. 5. Transparency and reporting. Sec. 6. Non-Federal contributions to Bureau of Reclamation and Power Marketing Administration infrastructure. Sec. 7. Advancing hydropower through new water storage. Sec. 8. Prohibitin harmful spills at Bureau of Reclamation and other Federal dams. Sec. 9. Protecting electricity rights-of-way on Federal lands. Sec. 10. Federal funding prohibition on Power Marketing Administration memorandum. Sec. 11. Federal funding prohibitions on Federal dam removal. Sec. 12. Federal funding prohibitions on dam removal mitigation. Sec. 13. Federal funding prohibitions on nongovernmental organizations. Sec. 14. Departments of the Interior and Commerce conditions and recommendations.

3.

Findings

Congress finds the following: (1)Hydropower is the most abundant source of clean, renewable energy in the United States. (2)All Federal hydropower facilities, including Bureau of Reclamation dams, provide renewable and emissions-free energy to rural and urban communities, accounting for half of the hydroelectricity produced in the Nation. (3)Non-Federal hydropower facilities, many of which are located on Federal lands, provide the other half of this clean energy. (4)Federal and non-Federal hydropower account for nearly 7 percent of the electricity generated in the United States, avoiding approximately 200,000,000 annual metric tons of carbon emissions. (5)Existing Federal and non-Federal hydropower facilities are subject to litigation, judicial orders, and regulations that seek to diminish this resource. (6)Potential exists to develop new hydropower facilities and jobs related to construction and operation of these facilities. (7)It is in the Nation’s economic and environmental interest to protect existing hydropower resources and promote new development.

4.

Bureau of Reclamation conduit hydropower

Section 9(c) of the Reclamation Project Act of 1939 (43 U.S.C. 485h(c)) is amended— (1)by striking The Secretary is authorized to enter into contracts to furnish water and inserting: (1)The Secretary is authorized to enter into contracts to furnish water ; (2)by striking (1) shall and inserting (A) shall; (3)by striking (2) shall and inserting (B) shall; (4)by striking respecting the terms of sales of electric power and leases of power privileges shall be in addition and alternative to any authority in existing laws relating to particular projects and inserting respecting the sales of electric power and leases of power privileges shall be an authorization in addition to and alternative to any authority in existing laws related to particular projects, including small conduit hydropower development; and (5)by adding at the end the following: (2)When carrying out this subsection, the Secretary shall first offer the lease of power privilege to an irrigation district or water users association operating the applicable transferred work, or to the irrigation district or water users association receiving water from the applicable reserved work. The Secretary shall determine a reasonable timeframe for the irrigation district or water users association to accept or reject a lease of power privilege offer. (3)The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) shall not apply to small conduit hydropower development, excluding siting of associated transmission on Federal lands, under this subsection. (4)The Power Resources Office of the Bureau of Reclamation shall be the lead office of small conduit hydropower policy and procedure-setting activities conducted under this subsection. (5)Nothing in this subsection shall obligate the Western Area Power Administration, the Bonneville Power Administration, or the Southwestern Power Administration to purchase or market any of the power produced by the facilities covered under this subsection and none of the costs associated with production or delivery of such power shall be assigned to project purposes for inclusion in project rates. (6)Nothing in this subsection shall alter or impede the delivery and management of water by Bureau of Reclamation facilities, as water used for conduit hydropower generation shall be deemed incidental to use of water for the original project purposes. Lease of power privilege shall be made only when, in the judgment of the Secretary, the exercise of the lease will not be incompatible with the purposes of the project or division involved, nor shall it create any unmitigated financial or physical impacts to the project or division involved. The Secretary shall notify and consult with the irrigation district or legally organized water users association operating the transferred work in advance of offering the lease of power privilege and shall prescribe such terms and conditions that will adequately protect the planning, design, construction, operation, maintenance, and other interests of the United States and the project or division involved. (7)Nothing in this subsection shall alter or affect any existing agreements for the development of conduit hydropower projects or disposition of revenues. (8)Revenues derived from the lease of power privilege under this subsection shall be applied as follows: (A)First against reimbursable construction costs allocated to power. (B)Then for use to repair or rehabilitate the facility from which such power is derived. (C)The remainder, after application under subparagraphs (A) and (B) shall be used to construct any new storage at the project from which such power is derived. No funding under this subparagraph shall be used for studying new storage. (9)In this subsection: (A)

Conduit

The term conduit means any Bureau of Reclamation tunnel, canal, pipeline, aqueduct, flume, ditch, or similar manmade water conveyance that is operated for the distribution of water for agricultural, municipal, or industrial consumption and not primarily for the generation of electricity. (B)

Irrigation district

The term irrigation district means any irrigation, water conservation or conservancy district, multicounty water conservation or conservancy district, or any separate public entity composed of two or more such districts and jointly exercising powers of its member districts. (C)

Reserved work

The term reserved work means any conduit that is included in project works the care, operation, and maintenance of which has been reserved by the Secretary, through the Commissioner of the Bureau of Reclamation. (D)

Transferred work

The term transferred work means any conduit that is included in project works the care, operation, and maintenance of which has been transferred to a legally organized water users association or irrigation district. (E)

Secretary

The term Secretary means the Secretary of the Interior. (F)

Small conduit hydropower

The term small conduit hydropower means a facility capable of producing 5 megawatts or less of electric capacity. .

5.

Transparency and reporting

(a)

Information included in monthly billing to power customers

The Administrators of each of the Bonneville Power Administration, the Western Area Power Administration, the Southwestern Power Administration, and the Southeastern Power Administration shall include in monthly billings sent to each of their power customers information estimating and reporting the costs of the customer’s share of the direct and indirect costs incurred by the administration related to compliance with any Federal environmental laws impacting the conservation of fish and wildlife considered by the Administrator concerned, at that Administrator’s sole discretion after consultation with consumers, to be relevant. (b)

Direct Costs

Direct costs reported under this subsection shall include Federal agency obligations related to costs of studies; capital, operation, maintenance, and replacement costs; and staffing costs. (c)

Indirect Costs

Indirect costs reported under this subsection shall include foregone generation and replacement power costs, including the net costs of any transmission. (d)

Coordination

The Commissioner of the Bureau of Reclamation and the head of any other affected Federal agency shall assist the Administrators with the identification of the costs. (e)

Report

No later than January 30 of each year, each of the Administrators referred to in subsection (a), in coordination with the Bureau of Reclamation and other affected Federal agencies, shall provide an annual report to the appropriate committees of the House of Representatives and the Senate estimating the total of the direct and indirect costs incurred by the administration related to compliance with any Federal environmental laws impacting the conservation of fish and wildlife, the sources of replacement power, and costs related to integrating wind energy resources considered by the Administrator concerned, at that Administrator’s sole discretion after consultation with consumers, to be relevant.

6.

Non-Federal contributions to Bureau of Reclamation and Power Marketing Administration infrastructure

The Act of May 9, 1938 (43 U.S.C. 392a), is amended as follows: (1)By striking has been made by law or contract and all that follows through such project: and inserting is made by law or contract for the use of such revenues to repay funds contributed by users of water or power to benefit such project:. (2)By striking General Treasury as miscellaneous receipts and inserting reclamation fund, except as otherwise specifically provided by law.

7.

Advancing hydropower through new water storage

The Secretary of the Interior, acting through the Commissioner of the Bureau of Reclamation, may hereafter partner or enter into an agreement with local joint power authorities formed pursuant to State law by irrigation districts and other local water districts and local governments, to complete planning and feasibility studies authorized by Congress for water storage projects. A project under this section is authorized for construction only if no Federal funds are used for financing, constructing, or operating the project and if the project, when constructed, will produce hydropower.

8.

Prohibiting harmful spills at Bureau of Reclamation and other Federal dams

The Bureau of Reclamation and other Federal agencies shall not bypass hydroelectric turbines if a State in which the affected facilities has declared a drought emergency or if any Federal agency finds that such bypass could result in harming endangered fish by any means unless such bypasses are necessary for flood control purposes.

9.

Protecting electricity rights-of-way on Federal lands

If an electricity right-of-way holder, including a Power Marketing Administration, on Forest Service or Bureau of Land Management lands applies to remove insect-infected trees or other hazardous fuels within 500 feet of the right-of-way, the project or activity is categorically excluded from the requirement to prepare an environmental assessment or an environmental impact statement under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), so long as the project or activity is otherwise conducted consistently with agency and departmental procedures and the applicable land and resource management plan or land-use plan.

10.

Federal funding prohibition on Power Marketing Administration memorandum

No Federal funds, including funds derived from Power Marketing Administration customer revenues, shall be used to implement a new program, new project, new activity, or other new action required by or proposed in the memorandum from Steven Chu, Secretary of Energy, to the Power Marketing Administrators with the subject line Power Marketing Administrations’ Role and dated March 16, 2012, until— (1)the Committee on Natural Resources of the House of Representatives and the Committee on Energy and Natural Resources of the Senate receive a report containing a legal analysis performed by the appropriate Federal agency that justifies the existing and proposed statutory authorities necessary to implement every program, project, activity, and other action required or proposed by the memorandum; and (2)the authority for the program, project, activity, or other action to be so funded has been authorized— (A)as documented in the report required under paragraph (1); or (B)by a Federal law enacted after the issuance of that report.

11.

Federal funding prohibitions on Federal dam removal

Federal funding shall not be used to remove, partially remove, or breach, or study the removal, partial removal, or breaching of any Federal or non-Federal hydroelectric-producing dam unless explicitly authorized by Congress.

12.

Federal funding prohibitions on dam removal mitigation

Federal funding or funding from congressionally chartered organizations that provide grants impacting Federal land and fish and wildlife shall not be used for mitigation activities carried out by Federal or non-Federal entities related to hydroelectric-producing dam removal unless explicitly authorized by Congress.

13.

Federal funding prohibitions on nongovernmental organizations

(a)

Prohibition on funding

Federal agencies or congressionally chartered organizations that provide grants impacting Federal land and fish and wildlife shall not fund any nongovernmental organization that is involved in or that was involved in certain litigation at any time during the 10 years immediately before the funding would otherwise be provided. (b)

Definitions

For the purposes of this section— (1)the term certain litigation means litigation against the Federal Government that requests, urges, or otherwise attempts or if successful would result in hydroelectric producing dam removal, partial removal, breaching, or reoperation that would negatively impact the generation of hydropower; and (2)the term involved in includes a party to litigation, a person on behalf of whom litigation is initiated, settled, or otherwise instigated, and an attorney or law firm to whom or on behalf of whom attorneys fees will be paid as a result of the litigation.

14.

Departments of the Interior and Commerce conditions and recommendations

(a)

Definitions

In this section: (1)

Commission

The term Commission means the Federal Energy Regulatory Commission. (2)

Condition

The term condition means— (A)a condition to a license for a project on a reservation deemed necessary by a consulting agency for the purpose of the first proviso of section 4(e) of the Federal Power Act (16 U.S.C. 797(e)); or (B)a requirement relating to the construction, maintenance, or operation of a fishway prescribed by a consulting agency for the purpose of the first sentence of section 18 of the Federal Power Act (16 U.S.C. 811). (3)

Consulting agency

The term consulting agency means— (A)in relation to a condition described in paragraph (2)(A), the Federal agency with responsibility for supervising the reservation; and (B)in relation to a requirement described in paragraph (2)(B), the Secretary of the Interior or the Secretary of Commerce, as appropriate. (4)

Proposed license applicant

The term proposed license applicant means a person, State, or municipality that is engaging in activities in preparation for filing an application for a license under section 4 of the Federal Power Act (16 U.S.C. 797). (5)

Reservation

The term reservation has the meaning given the term reservations in section 3 of the Federal Power Act (16 U.S.C. 796). (6)

Person; State; municipality

The terms person, State, and municipality have the meanings given those terms in section 3 of the Federal Power Act (16 U.S.C. 796). (b)

Submission of recommendations prior to filing of application

If a consulting agency makes any recommendation to a proposed license applicant prior to such license applicant filing a license application under part I of the Federal Power Act (16 U.S.C. 792 et seq.) with the Commission, the consulting agency shall submit such recommendation to the Commission not later than 30 days after making such recommendation. (c)

Factors To be considered

(1)

In general

In deeming necessary or prescribing a condition, a consulting agency shall take into consideration— (A)the impacts of the condition on— (i)the cost of the project; (ii)electric generation capacity and system reliability; (iii)air quality (including consideration of the impacts on greenhouse gas emissions); and (iv)drinking water supply, flood control, irrigation, navigation, and recreational water supply; and (B)compatibility with other conditions to be included in the license, including mandatory conditions of other agencies, if available. (2)

Documentation

(A)

In general

In the course of the consideration of factors under paragraph (1), a consulting agency shall create written documentation 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 consideration in deeming necessary or prescribing the condition to be submitted to the Commission. (B)

Submission to the Commission

A consulting agency shall include the documentation created under subparagraph (A) in its submission of a condition to the Commission. (d)

Relationship to impacts on reservation

In the case of a condition deemed necessary by a consulting agency for the purpose of the first proviso of section 4(e) of the Federal Power Act (16 U.S.C. 797(e)), if the Commission determines such condition is not directly and reasonably related to the impacts of the project within the reservation, such condition shall not be included in any license issued by the Commission.