[Congressional Record Volume 164, Number 203 (Saturday, December 22, 2018)]
[Senate]
[Pages S8034-S8036]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    BUREAU OF RECLAMATION PUMPED STORAGE HYDROPOWER DEVELOPMENT ACT

  Mr. McCONNELL. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of Calendar No. 663, H.R. 1967.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The bill clerk read as follows:

       A bill (H.R. 1967) to amend the Reclamation Project Act of 
     1939 to authorize pumped storage hydropower development 
     utilizing multiple Bureau of Reclamation reservoirs.

  There being no objection, the Senate proceeded to consider the bill, 
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:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Bureau of Reclamation Pumped 
     Storage Hydropower Development Act''.

     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 August 9, 2013'' 
     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

[[Page S8035]]

       (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 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.

  Mr. McCONNELL. I further ask unanimous consent that the committee-
reported amendment be agreed to; that the bill, as amended, be 
considered read a third time and passed; and that the motion to 
reconsider be considered made and laid upon the table.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The committee-reported amendment in the nature of a substitute was 
ordered to be engrossed and the bill to be read the third time.
  The bill was read the third time.
  The bill (H.R. 1967), as amended, was passed.

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