[Congressional Record Volume 150, Number 110 (Wednesday, September 15, 2004)]
[Senate]
[Pages S9342-S9344]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  TAPOCO PROJECT LICENSING ACT OF 2004

  The Senate proceeded to consider the bill (S. 2319) to authorize and 
facilitate hydroelectric power licensing of the Tapoco Project, which 
had been reported from the Committee on Energy and Natural Resources, 
with an amendment to strike all after the enacting clause and insert in 
lieu thereof the following:

       (Strike the part shown in black brackets and insert the 
     part shown in italic.)

                                S. 2319

       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 ``Tapoco Project Licensing 
     Act of 2004''.

     [SEC. 2. PURPOSE.

       [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--
       [(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
       [(2) after the exchange of land is completed, the Federal 
     Energy Regulatory Commission to license the Project.

     [SEC. 3. DEFINITIONS.

       [In this Act:
       [(1) APGI.--The term ``APGI'' means Alcoa Power Generating 
     Inc. (including its successors and assigns).
       [(2) Attorney general.--The term ``Attorney General'' means 
     the Attorney General of the United States.
       [(3) Commission.--The term ``Commission'' means the Federal 
     Energy Regulatory Commission.
       [(4) Park.--The term ``Park'' means the Great Smoky 
     Mountains National Park.
       [(5) Project.--The term ``Project'' means FERC Project No. 
     2169 (the Tapoco Project or Project), including the Chilhowee 
     Dam and reservoir in the State.
       [(6) Secretary.--The term ``Secretary'' means the Secretary 
     of the Interior.
       [(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.
       [(8) State.--The term ``State'' means the State of 
     Tennessee.

     [SEC. 4. LAND EXCHANGE.

       [(a) In General.--The Secretary shall offer to acquire from 
     APGI--
       [(1) subject to any encumbrances existing before February 
     21, 2003, approximately 186

[[Page S9343]]

     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
       [(2) approximately 100 acres of land within the Park that 
     are--
       [(A) adjacent to or flooded by the Chilhowee Reservoir;
       [(B) within the boundary of the Tapoco Project as of 
     February 21, 2003; and
       [(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.
       [(b) Conservation Easement.--The Secretary shall reserve a 
     conservation easement over any land transferred to APGI that 
     shall--
       [(1) specifically prohibit any development of the land by 
     APGI, other than any development that is--
       [(A) necessary for the continued operation and maintenance 
     of the Chilhowee Reservoir; or
       [(B) required by the Commission;
       [(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
       [(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.
       [(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.
       [(d) Unsuitable Land.--
       [(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.
       [(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--
       [(A) the transfer of the land is voided, on written notice 
     from the Secretary to APGI; and
       [(B) the Secretary shall negotiate an acquisition for 
     inclusion in the Park of suitable land that is--
       [(i) of approximately equal value to the land acquired by 
     APGI for inclusion in the Park; and
       [(ii) within or adjacent to the boundary of the Park.
       [(e) Action for Fair Market Value of Land.--
       [(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--
       [(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
       [(B) the costs and litigation expenses of the United 
     States, including attorney fees.
       [(2) Funds.--All funds recovered from any action under 
     paragraph (1) shall--
       [(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
       [(B) remain available until expended.
       [(3) Effect on conveyance.--Nothing in this subsection 
     affects a conveyance by the United States to APGI under 
     subsection (a).
       [(f) Boundary Adjustment.--
       [(1) In general.--On completion of an exchange authorized 
     under this section, the Secretary shall--
       [(A) adjust the boundary of the Park to reflect the 
     exchange; and
       [(B) administer any acquired land as part of the Park in 
     accordance with applicable law (including regulations).
       [(2) Public notice.--The Secretary shall publish in the 
     Federal Register notice of any boundary revised under this 
     subsection.
       [(g) Compliance With Other Laws.--An exchange of land under 
     this section is deemed to meet the requirements of--
       [(1) the National Environmental Policy Act of 1969 (42 
     U.S.C. 4321 et seq.);
       [(2) the National Historic Preservation Act (16 U.S.C. 470 
     et seq.); and
       [(3) the land exchange provisions of the Land and Water 
     Conservation Fund Act of 1965 (16 U.S.C. 460l-4 et seq.).

     [SEC. 5. LICENSING.

       [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 .

     [SEC. 6. LAND ACQUISITION.

       [(a) Secretary of the Interior.--
       [(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.
       [(2) Boundary adjustment.--The Secretary shall--
       [(A) adjust the boundary of the Park to include any land 
     acquired under paragraph (1); and
       [(B) publish notice of the adjustment in the Federal 
     Register.
       [(b) Secretary of Agriculture.--
       [(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).
       [(2) Boundary adjustment.--The Secretary of Agriculture 
     shall--
       [(A) adjust the boundary of the Cherokee National Forest to 
     include any land acquired under paragraph (1); and
       [(B) publish notice of the adjustment in the Federal 
     Register.
       [(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.

     [SEC. 7. AUTHORIZATION FOR APPROPRIATIONS.

       [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.]

     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--

[[Page S9344]]

       (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.
  The committee amendment in the nature of a substitute was agreed to.
  The bill (S. 2319), as amended, was read the third time and passed.

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