[Congressional Record Volume 159, Number 37 (Thursday, March 14, 2013)]
[Senate]
[Page S1856]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Ms. MURKOWSKI:
  S. 564. A bill to amend the Federal Power Act to remove the authority 
of the Federal Energy Commission to collect land use fees for land that 
has been sold, exchanged, or otherwise transferred from Federal 
ownership but that is subject to a power site reservation; to the 
Committee on Energy and Natural Resources.
  Ms. MURKOWSKI. Mr. President, we often hear refrains of the need to 
make government policies more fair, clear, or simple--especially when 
these policies involve the collection of fees or taxes. Today I rise to 
introduce legislation to fix an inherently unfair policy by prohibiting 
the Federal Energy Regulatory Commission from charging land-use fees 
for hydropower projects that are no longer located on Federal land.
  FERC is responsible for licensing private, municipal and state 
hydropower projects. Pursuant to the Federal Power Act, the Commission 
is authorized to collect fees from project owners for those hydro 
projects located on Federal lands. The rationale behind these land-use 
fees is to recompense the United States for the ``use, occupancy, or 
enjoyment'' of its Federal lands. The Federal Government is, in some 
sense, a landlord for these types of projects, and can collect just and 
reasonable rent from its tenants. The current level of these rents is a 
separate issue but today I am focused on how a technicality in Federal 
law allows the government to continue to collect land-use fees even 
when the land at issue has been transferred out of Federal ownership. 
Under current law, if the Federal Government sold the land underneath a 
hydropower project to the operator, or transferred it into state 
ownership, FERC can continue to assess full land use fees against the 
operator. This untenable situation is like a landlord continuing to 
collect rent from a tenant even after the tenant buys the house 
outright.
  While the inherent unfairness of such a scenario is clear, the 
statutory and regulatory web that has created this snare is extremely 
complex. In addition to allowing for the collection of Federal land-use 
fees, the Federal Power Act also contains a section regarding Power 
Site Classifications, or PSCs. A PSC attaches to the land when a 
preliminary hydropower license application is made, and entitles the 
government, or its designees, to enter the associated land and develop 
a hydropower project if some other person or operation is occupying it. 
These classifications are similar to easements, in that they 
permanently attach to the title of the lands. The purpose of PSCs is to 
make sure that hydropower can be developed in the limited number of 
areas on Federal land that are suitable, and furthermore that once such 
an area is identified by a preliminary application, that the site is 
not then diverted to an alternate use.
  However, FERC has interpreted the statutory fee collection provisions 
to give these PSCs another affect that is not in keeping with this 
purpose--to charge land-use fees from existing hydropower operators in 
cases where the Federal Government no longer owns the land. In such a 
case, there is no need for a PSC to preserve the hydropower value of 
land as it is already being used for power production. Nor is the 
Federal Government somehow missing out on other beneficial uses of the 
land, because it no longer owns the land at issue.
  When I first learned of this issue, I asked FERC for a list of the 
hydropower projects for which it was collecting these PSC-based Federal 
land-use fees. I also asked the Department of the Interior, which 
maintains our Federal lands, for assistance. Unfortunately it appears 
that the government has not been diligent in keeping track of which 
projects are located on lands that have since been transferred away 
from Federal ownership as neither agency was able to produce a list of 
impacted projects.
  Consequently, my staff attempted to survey the number of affected 
projects by consulting with both the National Hydropower Association 
and the Alaska Power Association. This search identified 15 possible 
projects subject to these PSC land use fee collections--11 of which are 
located in my home State of Alaska. While some may dismiss these fees 
as being relatively minor, I can tell you that these annual Federal 
fees for land not even owned by the Federal Government can represent a 
significant hardship for my constituents.
  The bill I am introducing today would put a halt to this kind of fee 
collection. It simply says that when FERC is making fee determinations, 
it cannot take PSCs into account. Therefore, the only land that the 
Federal Government will be able to collect ``use, occupancy, and 
enjoyment'' fees for is land that it actually owns. I hope all of my 
colleagues can agree this treatment is a fair resolution of the issue 
and I ask for their support.
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