[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 1246 Introduced in Senate (IS)]

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117th CONGRESS
  1st Session
                                S. 1246

   To amend the Reclamation Project Act of 1939 to authorize pumped 
storage hydropower development utilizing multiple Bureau of Reclamation 
                              reservoirs.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 20, 2021

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

_______________________________________________________________________

                                 A BILL


 
   To amend the Reclamation Project Act of 1939 to authorize pumped 
storage hydropower development utilizing multiple Bureau of Reclamation 
                              reservoirs.

    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 ``Pacific Northwest Pumped Storage 
Hydropower Development Act of 2021''.

SEC. 2. AUTHORITY FOR PUMPED STORAGE HYDROPOWER DEVELOPMENT USING 
              MULTIPLE BUREAU OF RECLAMATION RESERVOIRS.

    Section 9(c) of the Reclamation Project Act of 1939 (43 U.S.C. 
485h(c)) is amended--
            (1) in paragraph (1), in the fourth sentence, by striking 
        ``, including small conduit hydropower development'' and 
        inserting ``and reserve to the Secretary the exclusive 
        authority to develop small conduit hydropower using Bureau of 
        Reclamation facilities and pumped storage hydropower 
        exclusively using Bureau of Reclamation reservoirs''; and
            (2) in paragraph (8), by striking ``has been filed with the 
        Federal Energy Regulatory Commission as of the date of the 
        enactment of the Bureau of Reclamation Small Conduit Hydropower 
        Development and Rural Jobs Act'' and inserting ``was filed with 
        the Federal Energy Regulatory Commission before August 9, 2013, 
        and is still pending''.

SEC. 3. LIMITATIONS ON ISSUANCE OF CERTAIN LEASES OF POWER PRIVILEGE.

    (a) Definitions.--In this section:
            (1) Commission.--The term ``Commission'' means the Federal 
        Energy Regulatory Commission.
            (2) Director.--The term ``Director'' means the Director of 
        the Office of Hearings and Appeals.
            (3) Office of hearings and appeals.--The term ``Office of 
        Hearings and Appeals'' means the Office of Hearings and Appeals 
        of the Department of the Interior.
            (4) Party.--The term ``party'', with respect to a study 
        plan agreement, means each of the following parties to the 
        study plan agreement:
                    (A) The proposed lessee.
                    (B) The Tribes.
            (5) Project.--The term ``project'' means a proposed pumped 
        storage facility that--
                    (A) would use multiple Bureau of Reclamation 
                reservoirs; and
                    (B) as of June 1, 2017, was subject to a 
                preliminary permit issued by the Commission pursuant to 
                section 4(f) of the Federal Power Act (16 U.S.C. 
                797(f)).
            (6) Proposed lessee.--The term ``proposed lessee'' means 
        the proposed lessee of a project.
            (7) Secretary.--The term ``Secretary'' means the Secretary 
        of the Interior.
            (8) Study plan.--The term ``study plan'' means the plan 
        described in subsection (d)(1).
            (9) Study plan agreement.--The term ``study plan 
        agreement'' means an agreement entered into under subsection 
        (b)(1) and described in subsection (c).
            (10) Tribes.--The term ``Tribes'' means--
                    (A) the Confederated Tribes of the Colville 
                Reservation; and
                    (B) the Spokane Tribe of Indians of the Spokane 
                Reservation.
    (b) Requirement for Issuance of Leases of Power Privilege.--The 
Secretary shall not issue a lease of power privilege pursuant to 
section 9(c)(1) of the Reclamation Project Act of 1939 (43 U.S.C. 
485h(c)(1)) (as amended by section 2) for a project unless--
            (1) the proposed lessee and the Tribes have entered into a 
        study plan agreement; or
            (2) the Secretary or the Director, as applicable, makes a 
        final determination for--
                    (A) a study plan agreement under subsection (c)(2); 
                or
                    (B) a study plan under subsection (d).
    (c) Study Plan Agreement Requirements.--
            (1) In general.--A study plan agreement shall--
                    (A) establish the deadlines for the proposed lessee 
                to formally respond in writing to comments and study 
                requests about the project previously submitted to the 
                Commission;
                    (B) allow for the parties to submit additional 
                comments and study requests if any aspect of the 
                project, as proposed, differs from an aspect of the 
                project, as described in a preapplication document 
                provided to the Commission;
                    (C) except as expressly agreed to by the parties or 
                as provided in paragraph (2) or subsection (d), require 
                that the proposed lessee conduct each study described 
                in--
                            (i) a study request about the project 
                        previously submitted to the Commission; or
                            (ii) any additional study request submitted 
                        in accordance with the study plan agreement;
                    (D) require that the proposed lessee study any 
                potential adverse economic effects of the project on 
                the Tribes, including effects on--
                            (i) annual payments to the Confederated 
                        Tribes of the Colville Reservation under 
                        section 5(b) of the Confederated Tribes of the 
                        Colville Reservation Grand Coulee Dam 
                        Settlement Act (Public Law 103-436; 108 Stat. 
                        4579); and
                            (ii) annual payments to the Spokane Tribe 
                        of Indians of the Spokane Reservation 
                        authorized after the date of enactment of this 
                        Act, the amount of which derives from the 
                        annual payments described in clause (i);
                    (E) establish a protocol for communication and 
                consultation between the parties;
                    (F) provide mechanisms for resolving disputes 
                between the parties regarding implementation and 
                enforcement of the study plan agreement; and
                    (G) contain other provisions determined to be 
                appropriate by the parties.
            (2) Disputes.--
                    (A) In general.--If the parties cannot agree to the 
                terms of a study plan agreement or implementation of 
                those terms, the parties shall submit to the Director, 
                for final determination on the terms or implementation 
                of the study plan agreement, notice of the dispute, 
                consistent with paragraph (1)(F), to the extent the 
                parties have agreed to a study plan agreement.
                    (B) Inclusion.--A dispute covered by subparagraph 
                (A) may include the view of a proposed lessee that an 
                additional study request submitted in accordance with 
                paragraph (1)(B) is not reasonably calculated to assist 
                the Secretary in evaluating the potential impacts of 
                the project.
                    (C) Timing.--The Director shall issue a 
                determination regarding a dispute under subparagraph 
                (A) not later than 120 days after the date on which the 
                Director receives notice of the dispute under that 
                subparagraph.
    (d) Study Plan.--
            (1) In general.--The proposed lessee shall submit to the 
        Secretary for approval a study plan that details the proposed 
        methodology for performing each of the studies--
                    (A) identified in the study plan agreement of the 
                proposed lessee; or
                    (B) determined by the Director in a final 
                determination regarding a dispute under subsection 
                (c)(2).
            (2) Initial determination.--Not later than 60 days after 
        the date on which the Secretary receives the study plan under 
        paragraph (1), the Secretary shall make an initial 
        determination that--
                    (A) approves the study plan;
                    (B) rejects the study plan on the grounds that the 
                study plan--
                            (i) lacks sufficient detail on a proposed 
                        methodology for a study identified in the study 
                        plan agreement; or
                            (ii) is inconsistent with the study plan 
                        agreement; or
                    (C) imposes additional study plan requirements that 
                the Secretary determines are necessary to adequately 
                define the potential effects of the project on--
                            (i) the exercise of the paramount hunting, 
                        fishing, and boating rights of the Tribes 
                        reserved pursuant to the Act of June 29, 1940 
                        (54 Stat. 703, chapter 460; 16 U.S.C. 835d et 
                        seq.);
                            (ii) the annual payments described in 
                        clauses (i) and (ii) of subsection (c)(1)(D);
                            (iii) the Columbia Basin project (as 
                        defined in section 1 of the Act of May 27, 1937 
                        (50 Stat. 208, chapter 269; 57 Stat. 14, 
                        chapter 14; 16 U.S.C. 835));
                            (iv) historic properties and cultural or 
                        spiritually significant resources; and
                            (v) the environment.
            (3) Objections.--
                    (A) In general.--Not later than 30 days after the 
                date on which the Secretary makes an initial 
                determination under paragraph (2), the Tribes or the 
                proposed lessee may submit to the Director an objection 
                to the initial determination.
                    (B) Final determination.--Not later than 120 days 
                after the date on which the Director receives an 
                objection under subparagraph (A), the Director shall--
                            (i) hold a hearing on the record regarding 
                        the objection; and
                            (ii) make a final determination that 
                        establishes the study plan, including a 
                        description of studies the proposed lessee is 
                        required to perform.
            (4) No objections.--If no objections are submitted by the 
        deadline described in paragraph (3)(A), the initial 
        determination of the Secretary under paragraph (2) shall be 
        final.
    (e) Conditions of Lease.--
            (1) Consistency with rights of tribes; protection, 
        mitigation, and enhancement of fish and wildlife.--
                    (A) In general.--Any lease of power privilege 
                issued by the Secretary for a project under subsection 
                (b) shall contain conditions--
                            (i) to ensure that the project is 
                        consistent with, and will not interfere with, 
                        the exercise of the paramount hunting, fishing, 
                        and boating rights of the Tribes reserved 
                        pursuant to the Act of June 29, 1940 (54 Stat. 
                        703, chapter 460; 16 U.S.C. 835d et seq.); and
                            (ii) to adequately and equitably protect, 
                        mitigate damages to, and enhance fish and 
                        wildlife, including related spawning grounds 
                        and habitat, affected by the development, 
                        operation, and management of the project.
                    (B) Recommendations of the tribes.--The conditions 
                required under subparagraph (A) shall be based on joint 
                recommendations of the Tribes.
                    (C) Resolving inconsistencies.--
                            (i) In general.--If the Secretary 
                        determines that any recommendation of the 
                        Tribes under subparagraph (B) is not reasonably 
                        calculated to ensure the project is consistent 
                        with subparagraph (A) or is inconsistent with 
                        the requirements of the Reclamation Project Act 
                        of 1939 (43 U.S.C. 485 et seq.), the Secretary 
                        shall attempt to resolve any such inconsistency 
                        with the Tribes, giving due weight to the 
                        recommendations and expertise of the Tribes.
                            (ii) Publication of findings.--If, after an 
                        attempt to resolve an inconsistency under 
                        clause (i), the Secretary does not adopt in 
                        whole or in part a recommendation of the Tribes 
                        under subparagraph (B), the Secretary shall 
                        issue each of the following findings, including 
                        a statement of the basis for each of the 
                        findings:
                                    (I) A finding that adoption of the 
                                recommendation is inconsistent with the 
                                requirements of the Reclamation Project 
                                Act of 1939 (43 U.S.C. 485 et seq.).
                                    (II) A finding that the conditions 
                                selected by the Secretary to be 
                                contained in the lease of power 
                                privilege under subparagraph (A) comply 
                                with the requirements of clauses (i) 
                                and (ii) of that subparagraph.
            (2) Annual charges payable by licensee.--
                    (A) In general.--Subject to subparagraph (B), any 
                lease of power privilege issued by the Secretary for a 
                project under subsection (b) shall contain conditions 
                that require the lessee of the project to make direct 
                payments to the Tribes through reasonable annual 
                charges in an amount that recompenses the Tribes for 
                any adverse economic effect of the project identified 
                in a study performed pursuant to the study plan 
                agreement for the project.
                    (B) Agreement.--
                            (i) In general.--The amount of the annual 
                        charges described in subparagraph (A) shall be 
                        established through agreement between the 
                        proposed lessee and the Tribes.
                            (ii) Condition.--The agreement under clause 
                        (i), including any modification of the 
                        agreement, shall be deemed to be a condition to 
                        the lease of power privilege issued by the 
                        Secretary for a project under subsection (b).
                    (C) Dispute resolution.--
                            (i) In general.--If the proposed lessee and 
                        the Tribes cannot agree to the terms of an 
                        agreement under subparagraph (B)(i), the 
                        proposed lessee and the Tribes shall submit 
                        notice of the dispute to the Director.
                            (ii) Resolution.--The Director shall 
                        resolve the dispute described in clause (i) not 
                        later than 180 days after the date on which the 
                        Director receives notice of the dispute under 
                        that clause.
            (3) Additional conditions.--The Secretary may include in 
        any lease of power privilege issued by the Secretary for a 
        project under subsection (b) other conditions determined 
        appropriate by the Secretary, on the condition that the 
        conditions shall be consistent with the Reclamation Project Act 
        of 1939 (43 U.S.C. 485 et seq.).
            (4) Consultation.--In establishing conditions under this 
        subsection, the Secretary shall consult with the Tribes.
    (f) Deadlines.--The Secretary or any officer of the Office of 
Hearing and Appeals before whom a proceeding is pending under this 
section may extend any deadline or enlarge any timeframe described in 
this section--
            (1) at the discretion of the Secretary or the officer; or
            (2) on a showing of good cause by any party.
    (g) Judicial Review.--Any final action of the Secretary or the 
Director made pursuant to this section shall be subject to judicial 
review in accordance with chapter 7 of title 5, United States Code.
    (h) Effect on Other Projects.--Nothing in this section establishes 
any precedent or is binding on any Bureau of Reclamation lease of power 
privilege, other than for a project.
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