[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 1236 Introduced in Senate (IS)]

114th CONGRESS
  1st Session
                                S. 1236

To amend the Federal Power Act to modify certain requirements relating 
  to trial-type hearings with respect to certain license applications 
    before the Federal Energy Regulatory Commission, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 6, 2015

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

_______________________________________________________________________

                                 A BILL


 
To amend the Federal Power Act to modify certain requirements relating 
  to trial-type hearings with respect to certain license applications 
    before the Federal Energy Regulatory Commission, 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.

    This Act may be cited as the ``Hydropower Improvement Act of 
2015''.

SEC. 2. FINDINGS.

    Congress finds that--
            (1) according to the Energy Information Administration, 
        hydropower is the largest renewable energy source for 
        electricity generation in the United States;
            (2) as of the date of enactment of this Act--
                    (A) hydropower accounted for--
                            (i) 52 percent of electricity generation 
                        from renewable resources in the United States; 
                        and
                            (ii) approximately 6 percent of total 
                        electricity generation in the United States; 
                        and
                    (B) the use of hydropower results in a reduction of 
                200,000,000 metric tons of carbon emissions each year;
            (3) with approximately 100,000 megawatts of electric 
        capacity, hydropower provides low-cost power to 30,000,000 
        homes in the United States;
            (4) hydropower provides--
                    (A) baseload power;
                    (B) ancillary benefits that include grid 
                reliability and energy storage; and
                    (C) integration and balancing services for variable 
                renewable electricity resources, such as wind and 
                solar;
            (5) the Department of Energy estimates that an additional 
        300 gigawatts of hydropower could be realized in the United 
        States through--
                    (A) efficiency and capacity upgrades at existing 
                facilities;
                    (B) powering nonpowered dams;
                    (C) the development of new small hydropower 
                projects; and
                    (D) pumped storage hydropower; and
            (6) the electric power systems in the United States and 
        Canada form a highly integrated North American grid as--
                    (A) the systems are connected at over 35 points;
                    (B) on average, Canada exports 5 to 10 percent of 
                its total electric generation to United States markets, 
                with hydropower resources comprising over 80 percent of 
                the exports; and
                    (C) hydropower imports into the United States from 
                Canada help stabilize the electric system during--
                            (i) sudden disturbances, such as the 2003 
                        Northeast blackout; and
                            (ii) severe weather events, such as the 
                        2014 polar vortex.

SEC. 3. SENSE OF CONGRESS ON THE USE OF HYDROPOWER RENEWABLE RESOURCES.

    It is the sense of Congress that--
            (1) hydropower is a renewable resource for purposes of all 
        Federal programs and is an essential source of energy in the 
        United States; and
            (2) the United States should increase substantially the 
        capacity and generation of clean, renewable hydropower 
        resources that would improve environmental quality in the 
        United States and support over 1,000,000 clean energy jobs.

SEC. 4. MODIFYING THE DEFINITION OF RENEWABLE ENERGY TO INCLUDE 
              HYDROPOWER.

    Section 203(b)(2) of the Energy Policy Act of 2005 (42 U.S.C. 
15852(b)(2)) is amended by striking ``new hydroelectric generation 
capacity achieved from increased efficiency or additions of new 
capacity at an existing hydroelectric project'' and inserting 
``hydropower''.

SEC. 5. LICENSES FOR CONSTRUCTION.

    The first proviso of section 4(e) of the Federal Power Act (16 
U.S.C. 797(e)) is amended--
            (1) in the first sentence--
                    (A) by striking ``deem'' and inserting ``determine 
                to be''; and
                    (B) by striking ``utilization of such 
                reservation.'' and inserting the following: 
                ``utilization of such reservation, but only if the 
                conditions pertain to reservation land on which project 
                works are located, have a clear and direct nexus to the 
                presence or operations of the project being licensed, 
                as determined by the Commission, and are submitted in 
                accordance with the schedule established under section 
                35''; and
            (2) by striking the second, third, and fourth sentences.

SEC. 6. PRELIMINARY PERMITS.

    Section 5 of the Federal Power Act (16 U.S.C. 798) is amended--
            (1) in subsection (a), by striking ``three'' and inserting 
        ``4''; and
            (2) in subsection (b)--
                    (A) by striking ``Commission may extend the period 
                of a preliminary permit once for not more than 2 
                additional years beyond the 3 years'' and inserting the 
                following: ``Commission may--
            ``(1) extend the period of a preliminary permit once for 
        not more than 4 additional years beyond the 4 years'';
                    (B) by striking the period at the end and inserting 
                ``; and''; and
                    (C) by adding at the end the following:
            ``(2) after the end of an extension period granted under 
        paragraph (1), issue an additional permit to the permittee if 
        the Commission determines that there are extraordinary 
        circumstances that warrant the issuance of the additional 
        permit.''.

SEC. 7. TIME LIMIT FOR CONSTRUCTION OF PROJECT WORKS.

    Section 13 of the Federal Power Act (16 U.S.C. 806) is amended in 
the second sentence by striking ``once but not longer than two 
additional years'' and inserting ``for not more than 8 additional 
years,''.

SEC. 8. LICENSE TERM.

    Section 15(e) of the Federal Power Act (16 U.S.C. 808(e)) is 
amended--
     (a) by striking ``(e) Except'' and inserting the following:
    ``(e) License Term on Relicensing.--
            ``(1) In general.--Except''; and
    (b) by adding at the end the following:
            ``(2) Consideration.--In determining the term of a license 
        under paragraph (1), the Commission shall consider project-
        related investments by the licensee over the term of the 
        existing license (including any terms under annual licenses) 
        that resulted in new development, construction, capacity, 
        efficiency improvements, or environmental measures, but which 
        did not result in the extension of the term of the license by 
        the Commission.''.

SEC. 9. OPERATION OF NAVIGATION FACILITIES.

    Section 18 of the Federal Power Act (16 U.S.C. 811) is amended--
            (1) in the first sentence, by inserting after the 
        ``Secretary of Commerce'' the following: ``or the Secretary of 
        the Interior, as appropriate, but only if the fishways are 
        necessary to mitigate effects of the project on fish 
        populations, have a clear and direct nexus to the presence or 
        operations of the project being licensed, as determined by the 
        Commission, and are submitted in accordance with the schedule 
        established under section 35''; and
            (2) by striking the second, third, and fourth sentences.

SEC. 10. ALTERNATIVE CONDITIONS AND PRESCRIPTIONS.

    Section 33 of the Federal Power Act (16 U.S.C. 823d) is amended--
            (1) in subsection (a)--
                    (A) in paragraph (1), by striking ``deems'' and 
                inserting ``determines'';
                    (B) in paragraph (2)--
                            (i) in the matter preceding subparagraph 
                        (A)--
                                    (I) by striking ``in paragraph (1), 
                                and'' and inserting ``in paragraph (1), 
                                as submitted and without modification, 
                                and'';
                                    (II) by striking ``if the Secretary 
                                determines,'' and inserting ``if the 
                                Commission determines,''; and
                                    (III) by striking ``otherwise 
                                available to the Secretary'' and 
                                inserting ``otherwise available to the 
                                Commission'';
                            (ii) in subparagraph (A), by striking 
                        ``provides for the adequate protection and 
                        utilization of the reservation'' and inserting 
                        ``adequately protects the reservation from 
                        adverse effects of the project''; and
                            (iii) in subparagraph (B), in the matter 
                        preceding clause (i), by inserting ``determined 
                        to be necessary'' before ``by the Secretary'';
                    (C) in paragraph (3)--
                            (i) by striking ``Secretary'' each place it 
                        appears and inserting ``Commission''; and
                            (ii) by striking ``evidence provided by the 
                        Commission'' and inserting ``evidence provided 
                        by the Secretary'';
                    (D) by striking paragraph (4); and
                    (E) by striking paragraph (5);
            (2) in subsection (b)--
                    (A) in paragraph (2), in the matter preceding 
                subparagraph (A)--
                            (i) by striking ``referred to in paragraph 
                        (1), if the Secretary of the appropriate 
                        department'' and inserting ``referred to in 
                        paragraph (1), as submitted and without 
                        modification, if the Commission''; and
                            (ii) by striking ``otherwise available to 
                        the Secretary'' and inserting ``otherwise 
                        available to the Commission'';
                    (B) in paragraph (3)--
                            (i) by striking ``the Secretary shall 
                        consider'' and inserting ``the Commission shall 
                        consider'';
                            (ii) by striking ``otherwise available to 
                        the Secretary'' and inserting ``otherwise 
                        available to the Commission''; and
                            (iii) by striking ``evidence provided by 
                        the Commission'' and inserting ``evidence 
                        provided by the Secretary concerned'';
                    (C) by striking paragraph (4); and
                    (D) by striking paragraph (5); and
            (3) by adding at the end the following:
    ``(c) Applicability.--This section applies to--
            ``(1) any proceeding under this part in which a Secretary 
        proposes a condition to a license under the first proviso of 
        section 4(e);
            ``(2) any proceeding under this part in which a Secretary 
        proposes a prescription for a fishway under section 18; and
            ``(3) any instance in which a Secretary seeks to exercise 
        reserved authority under a license to prescribe, submit, or 
        revise any condition to a license, under the first provision of 
        section 4(e) or a fishway prescribed under section 18, as 
        appropriate.''.

SEC. 11. LICENSING PROCESS IMPROVEMENTS AND COORDINATION.

    Part I of the Federal Power Act (16 U.S.C. 792 et seq.) is amended 
by adding at the end the following:

``SEC. 34. LICENSING PROCESS IMPROVEMENTS.

    ``(a) License Studies.--
            ``(1) In general.--To facilitate the timely and efficient 
        completion of the license proceedings under this part, the 
        Commission shall--
                    ``(A) conduct an investigation of best practices in 
                performing licensing studies, including methodologies 
                and the design of studies to assess the full range of 
                environmental impacts of a project; and
                    ``(B) compile a comprehensive collection of studies 
                and data accessible to the public that could be used to 
                inform license proceedings under this paragraph.
            ``(2) Use of existing studies.--To the maximum extent 
        practicable, the Commission shall use existing studies and data 
        in individual licensing proceedings under this part in 
        accordance with paragraph (1).
            ``(3) Nonduplication requirement.--To the maximum extent 
        practicable, the Commission shall ensure that studies and data 
        required for any Federal authorization (as defined in section 
        35(a)) applicable to a particular project or facility are not 
        duplicated in other licensing proceedings under this part.
    ``(b) Informal Meetings With Commission Staff.--
            ``(1) In general.--On the request of a licensee, applicant, 
        or party to any license proceeding under this part, the 
        Commission may designate staff to hold informal meetings to 
        discuss technical or procedural matters relating to any ongoing 
        license proceeding.
            ``(2) Public notice.--The Commission--
                    ``(A) shall not be required to provide public 
                notice in advance of a meeting held under paragraph 
                (1); and
                    ``(B) after a meeting is held under paragraph (1), 
                shall provide, on the record, to the public--
                            ``(i) notice regarding the subject matter 
                        of the meeting; and
                            ``(ii) a summary of the meeting.

``SEC. 35. LICENSING PROCESS COORDINATION.

    ``(a) Definition of Federal Authorization.--In this section, the 
term `Federal authorization' means any authorization required under 
Federal law (including any license, permit, special use authorization, 
certification, opinion, consultation, determination, or other approval) 
with respect to--
            ``(1) a project licensed under section 4 or 15; or
            ``(2) a facility exempted under--
                    ``(A) section 30; or
                    ``(B) section 405(d) of the Public Utility 
                Regulatory Policies Act of 1978 (16 U.S.C. 2705(d)).
    ``(b) Designation as Lead Agency.--
            ``(1) In general.--The Commission shall act as the lead 
        agency for the purposes of coordinating all applicable Federal 
        authorizations.
            ``(2) Other agencies.--Each Federal and State agency 
        considering an aspect of an application for Federal 
        authorization shall cooperate with the Commission.
    ``(c) Schedule.--
            ``(1) Timing for issuance.--It is the sense of Congress 
        that all Federal authorizations required for a project or 
        facility, including a license or exemption order of the 
        Commission, should be issued by the date that is 3 years after 
        the date on which an application is considered to be complete 
        by the Commission.
            ``(2) Commission schedule.--
                    ``(A) In general.--The Commission shall establish a 
                schedule for the issuance of all Federal 
                authorizations.
                    ``(B) Requirements.--In establishing the schedule 
                under subparagraph (A), the Commission shall--
                            ``(i) consult and cooperate with the 
                        Federal and State agencies responsible for a 
                        Federal authorization;
                            ``(ii) ensure the expeditious completion of 
                        all proceedings relating to a Federal 
                        authorization; and
                            ``(iii) comply with applicable schedules 
                        established by Federal law with respect to a 
                        Federal authorization.
            ``(3) Recommendations.--If a Federal authorization is not 
        issued by the applicable deadline established under paragraph 
        (2)--
                    ``(A) the license or exemption order of the 
                Commission shall be considered to satisfy the required 
                Federal authorization; and
                    ``(B) any subsequent submission by the agency 
                responsible for the Federal authorization shall be 
                treated as a recommendation for potential inclusion in 
                the license under section 10(a).
    ``(d) Consolidated Record.--
            ``(1) In general.--The Commission shall maintain official 
        consolidated records of all license proceedings under this 
        part.
            ``(2) Submission of recommendations.--Any Federal or State 
        agency that is providing recommendations with respect to a 
        license proceeding under this part shall submit to the 
        Commission for inclusion in the consolidated record relating to 
        the license proceeding maintained under paragraph (1)--
                    ``(A) the recommendations;
                    ``(B) the rationale for the recommendations; and
                    ``(C) any supporting materials relating to the 
                recommendations.
            ``(3) Written statement.--In a case in which a Federal 
        agency is making a determination with respect to a covered 
        measure (as defined in section 36(a)), the head of the Federal 
        agency shall include in the consolidated record a written 
        statement demonstrating that the Federal agency gave equal 
        consideration to the effects of the covered measure on--
                    ``(A) energy supply, distribution, cost, and use;
                    ``(B) flood control;
                    ``(C) navigation;
                    ``(D) water supply; and
                    ``(E) air quality and the preservation of other 
                aspects of environmental quality.

``SEC. 36. TRIAL-TYPE HEARINGS.

    ``(a) Definitions.--In this section:
            ``(1) Alternative condition.--The term `alternative 
        condition' means an alternative condition proposed under 
        section 33(a)(1).
            ``(2) Alternative prescription.--The term `alternative 
        prescription' means an alternative prescription proposed under 
        section 33(b)(1).
            ``(3) Covered measure.--The term `covered measure' means--
                    ``(A) an original condition;
                    ``(B) an original prescription;
                    ``(C) an alternative condition; and
                    ``(D) an alternative prescription.
            ``(4) Original condition.--The term `original condition' 
        means a condition to a license proposed under the first proviso 
        of section 4(e).
            ``(5) Original prescription.--The term `original 
        prescription' means a prescription for a fishway proposed under 
        section 18.
    ``(b) Authorization of Trial-Type Hearing.--The license applicant 
(including an applicant for a license under section 15) and any party 
to the proceeding shall be entitled to a determination on the record, 
after opportunity for a trial-type hearing of not more than 120 days, 
on any disputed issues of material fact with respect to an applicable 
covered measure.
    ``(c) Effect of Revision or Supplementation.--The fact that an 
existing license is revised or supplemented under the reserved 
authority of a resource agency shall not affect the eligibility of the 
license applicant for a trial-type hearing under this section.
    ``(d) Deadline for Request.--A request for a trial-type hearing 
under this section shall be submitted not later than 60 days after the 
date on which the Secretary--
            ``(1) submits an original condition or original 
        prescription; or
            ``(2) exercises reserved authority under the license to 
        prescribe, submit, or revise any condition to a license under 
        the first proviso of section 4(e) or fishway prescribed under 
        section 18, as appropriate.
    ``(e) No Requirement To Exhaust.--By electing not to request a 
trial-type hearing under subsection (d), a license applicant and any 
other party to a license proceeding shall not be considered to have 
waived the right of the applicant or other party to raise any issue of 
fact or law on rehearing or judicial review of the license decision of 
the Commission.
    ``(f) Administrative Law Judge.--All disputed issues of material 
fact raised by a party in a request for a trial-type hearing submitted 
under subsection (d) shall be determined in a single trial-type hearing 
to be conducted by an Administrative Law Judge within the Office of 
Administrative Law Judges and Dispute Resolution of the Commission, in 
accordance with the Commission rules of practice and procedure under 
part 385 of title 18, Code of Federal Regulations (or successor 
regulations), and within the timeframe established by the Commission 
for each license proceeding (including a proceeding for a license under 
section 15).
    ``(g) Stay.--The Administrative Law Judge may impose a stay of a 
trial-type hearing under this section for a period of not more than 120 
days to facilitate settlement negotiations relating to resolving the 
disputed issues of material fact with respect to the covered measure.
    ``(h) Burden of Proof.--In any trial-type hearing under this 
section, the party advocating for the adoption of the covered measure 
shall have the burden of proof to support the facts at issue in the 
covered measure, by a preponderance of evidence.
    ``(i) Issuance of Decision Relating to Covered Measures.--On 
conclusion of a trial-type hearing under this section, the 
Administrative Law Judge shall issue findings of fact, which shall be 
binding on all participants in the trial-type hearing.
    ``(j) Secretarial Determination.--The Secretary that issued the 
original condition or original prescription shall not later than 60 
days after the date on which the Administrative Law Judge issues the 
decision and, in accordance with the schedule established by the 
Commission, propose a modified condition or modified prescription 
applicable to the license, based on the decision issued by the 
Administrative Law Judge.
    ``(k) Alternative.--A party to the trial-type hearing may propose 
to the Commission an alternative to a modified condition or modified 
prescription proposed by the Secretary under subsection (j), in 
accordance with the schedule established by the Commission.
    ``(l) Determination by Commission.--After considering the modified 
condition or modified prescription proposed under subsection (j) and 
any alternative to the modified condition or modified prescription 
proposed under subsection (k), the Commission shall include in the 
license the modified condition or modified prescription, unless the 
Commission determines that the alternative to the modified condition or 
modified prescription--
            ``(1)(A) in the case of an alternative to the modified 
        condition, provides for the adequate protection and utilization 
        of the reservation; or
            ``(B) in the case of an alternative to the modified 
        prescription, would be no less protective than the modified 
        prescription; and
            ``(2) as compared to the modified condition or modified 
        prescription, would--
                    ``(A) cost significantly less to implement; or
                    ``(B) result in improved operation of the project 
                works for electricity production.
    ``(m) Appeal to Commission.--A decision of an Administrative Law 
Judge issued under this section may be appealed to the Commission only 
as part of a request for rehearing filed within 30 days of a Commission 
order acting on the application at issue.
    ``(n) Resolution of Inconsistencies.--The Commission shall have the 
final authority to resolve any inconsistencies between requirements 
imposed pursuant to Federal authorizations (as defined in section 
35(a)).

``SEC. 37. PUMPED STORAGE PROJECTS.

    ``In carrying out section 6(a) of the Hydropower Regulatory 
Efficiency Act of 2013 (16 U.S.C. 797 note; Public Law 113-23), the 
Commission shall consider a closed loop pumped storage project to 
include a project--
            ``(1) in which the upper and lower reservoirs do not 
        impound or directly withdraw water from a navigable stream; and
            ``(2) that is not continuously connected to a naturally 
        flowing water feature.

``SEC. 38. ANNUAL REPORTS.

    ``(a) Commission Annual Report.--
            ``(1) In general.--The Commission shall submit to the 
        Committee on Energy and Natural Resources of the Senate and the 
        Committee on Energy and Commerce of the House of 
        Representatives an annual report that--
                    ``(A) describes and quantifies, for each licensed, 
                exempted, or proposed project under this part or 
                section 405(d) of the Public Utility Regulatory 
                Policies Act of 1978 (16 U.S.C. 2705(d)) (referred to 
                in this subsection as the `covered project'), the 
                quantity of energy and capacity authorized for new 
                development and reauthorized for continued operation 
                during the reporting year, including an assessment of 
                the economic, climactic, air quality, and other 
                environmental benefits achieved by the new and 
                reauthorized energy and capacity;
                    ``(B) describes and quantifies the loss of energy, 
                capacity, or ancillary services as a result of any 
                licensing action under this part or other requirement 
                under Federal law during the reporting year;
                    ``(C) identifies any application to license, 
                relicense, or expand a covered project pending as of 
                the date of the annual report, including a 
                quantification of the new energy and capacity with the 
                potential to be gained or lost by action relating to 
                the covered project; and
                    ``(D) lists all proposed covered projects that, as 
                of the date of the annual report, are subject to a 
                preliminary permit issued under section 4(f), including 
                a description of the quantity of new energy and 
                capacity that would be achieved through the development 
                of each proposed covered project.
            ``(2) Availability.--The Commission shall establish and 
        maintain a publicly available website or comparable resource 
        that tracks all information required for the annual report 
        under paragraph (1).
    ``(b) Resource Agency Annual Report.--
            ``(1) In general.--Any Federal or State resource agency 
        that is participating in any Commission proceeding under this 
        part or that has responsibilities for any Federal authorization 
        shall submit to the Committee on Energy and Natural Resources 
        of the Senate and the Committee on Energy and Commerce of the 
        House of Representatives a report that--
                    ``(A) describes each term, condition, or other 
                requirement prepared by the resource agency during the 
                reporting year with respect to a Commission proceeding 
                under this part, including--
                            ``(i) an assessment of whether 
                        implementation of the term, condition, or other 
                        requirement would result in the loss of energy, 
                        capacity, or ancillary services at the project, 
                        including a quantification of the losses;
                            ``(ii) an analysis of economic, air 
                        quality, climactic and other environmental 
                        effects associated with implementation of the 
                        term, condition, or other requirement;
                            ``(iii) a demonstration, based on evidence 
                        in the record of the Commission, that the 
                        resource agency prepared the term, condition, 
                        or other requirement in a manner that meets the 
                        policy established by this part while 
                        discharging the responsibilities of the 
                        resource agency under this part or any other 
                        applicable requirement under Federal law; and
                            ``(iv) a statement of whether the head of 
                        the applicable Federal agency has rendered 
                        final approval of the term, condition, or other 
                        requirement, or whether the term, condition, or 
                        other requirement remains a preliminary 
                        recommendation of staff of the resource agency; 
                        and
                    ``(B) identifies all pending, scheduled, and 
                anticipated proceedings under this part that, as of the 
                date of the annual report, the resource agency expects 
                to participate in, or has any approval or participatory 
                responsibilities for under Federal law, including--
                            ``(i) an accounting of whether the resource 
                        agency met all deadlines or other milestones 
                        established by the resource agency or the 
                        Commission during the reporting year; and
                            ``(ii) the specific plans of the resource 
                        agency for allocating sufficient resources for 
                        each project during the upcoming year.
            ``(2) Availability.--Any resource agency preparing an 
        annual report to Congress under paragraph (1) shall establish 
        and maintain a publicly available website or comparable 
        resource that tracks all information required for the annual 
        report.''.
                                 <all>