[Senate Report 113-38]
[From the U.S. Government Publishing Office]
Calendar No. 71
113th Congress Report
SENATE
1st Session 113-38
======================================================================
HYDROPOWER REGULATORY EFFICIENCY
_______
June 3, 2013.--Ordered to be printed
_______
Mr. Wyden, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany H.R. 267]
The Committee on Energy and Natural Resources, to which was
referred the Act (H.R. 267) to improve hydropower, and for
other purposes, having considered the same, reports favorably
thereon without amendment and recommends that the Act do pass.
Purpose
The purpose of H.R. 267 is to promote hydropower
development in the United States by statutorily exempting
qualifying conduit hydropower facilities from licensing and
regulation under the Federal Power Act, expanding existing
exemptions for certain other conduit hydropower facilities and
small hydroelectric power projects, and requiring the Federal
Energy Regulatory Commission to study ways to improve the
licensing of hydropower development at nonpowered dams and
closed loop pumped storage projects.
Background and Need
Hydropower is the largest source of clean, renewable
electricity in the United States. Today, we have 100,000
megawatts of hydroelectric capacity, providing about 7 percent
of the nation's electricity needs, and avoiding approximately
200 million metric tons of carbon emissions each year. Last
Congress, DOE testified before the Committee on Energy and
Natural Resources that the nation could realize an additional
300 gigawatts of hydropower through efficiency and capacity
upgrades at existing facilities, powering non-powered dams, new
small hydro development and pumped storage hydropower. In
addition, there is an unknown amount of potential power that
can be generated from existing conduits such as irrigation
canals, and pumped storage facilities can help integrate
intermittent renewable resources.
FERC's current licensing process takes five years or more.
A shorter process, if feasible, would be much less burdensome
and costly for a low-impact project such as installing hydro at
an existing non-hydro dam. With only three percent of existing
dams in the United States currently generating power, there is
great potential for adding hydropower generation to existing
non-powered dams. Improving and shortening the licensing
process will help ensure that additional hydropower can be
developed while maintaining environmental protections and the
opportunity for public input into the licensing process.
According to a study completed by the National Hydropower
Association, the U.S. could add approximately 60,000 megawatts
(MW) of new hydropower capacity at existing dams by 2025.
Legislative History
H.R. 267 was introduced by Congresswoman McMorris Rodgers
on January 15, 2013. The House Committee on Energy and Commerce
ordered the bill reported on February 4, 2013 (H. Rept. 113-6).
The bill passed the House on February 13, 2013, by a roll call
vote of 422-0.
The Senate Energy and Natural Resources Committee held a
hearing on H.R. 267, along with a similar measure, S. 545,
introduced by Senator Murkowski, on April 23, 2013. The
Committee ordered the bill favorably reported, without
amendment, on May 8, 2013.
Committee Recommendation
The Committee on Energy and Natural Resources, in an open
business session on May 8, 2013, by voice vote of a quorum
present, recommends that the Senate pass H.R. 267.
Section-by-Section Analysis
Section 1 provides a short title and a table of contents.
Section 2 sets forth findings.
Section 3 amends section 405 of the Public Utility
Regulatory Policies Act of 1978 to increase the rated capacity
of small hydropower projects eligible for the licensing
exemption from 5 MW to 10 MW.
Section 4 amends the small conduit hydropower exemption in
section 30 of the Federal Power Act to create a new statutory
exemption for certain qualifying small conduit facilities from
the licensing and regulatory requirements of the Federal Power
Act and to expand the scope of the existing exemption in
section 30.
Subsection (a)(1) amends section 30(a) of the Federal Power
Act to provide a statutory exemption for qualifying conduit
hydropower facilities from the licensing requirements of the
Federal Power Act. As amended, section 30(a)(3) defines a
``qualifying conduit hydropower facility'' as a project that:
(1) uses a non-Federally owned conduit; (2) has an installed
capacity of 5 MW or less; and (3) does not currently have a
license or exemption.
Section 30(a)(2) of the Federal Power Act, as amended,
provides that an entity proposing to construct a qualifying
conduit hydropower facility is required to file a notice of
intent with FERC that includes sufficient information to
demonstrate that the facility meets the qualifying criteria. If
FERC makes an initial determination that the proposed project
meets the criteria, it shall publish a public notice of the
notice of intent to construct the project. If no entity
contests that the project meets the criteria within 45 days,
the project is deemed to meet the criteria. If an entity
contests whether the project meets the criteria, FERC is
required to promptly issue a written determination as to
whether the facility meets the criteria.
Subsection 4(a) of the bill also amends section 30(b) of
the Federal Power Act, which currently authorizes FERC to grant
exemptions for small conduit hydropower facilities with
installed capacity of up to 15 MW (40 MW in the case of State
or local government facilities used solely for municipal water
supply purposes), to increase the scope of the exemption from
15 MW to 40 MW. Small conduit hydropower facilities granted an
exemption by FERC under the amended section 30(b) will still be
subject to state and federal fish and wildlife terms and
conditions pursuant to section 30(c) of the Federal Power Act.
Small conduit hydropower facilities statutorily exempt from
Federal Power Act licensing under section 30(a), as amended,
will not be subject to fish and wildlife terms and conditions
pursuant to section 30(c).
Paragraphs (2) and (3) of subsection 4(a) of the bill make
conforming amendments to section subsections (c) and (d) of
section 30 of the Federal Power Act.
Section 4(b) of the bill makes a conforming amendment to
section 405 of the Public Utility Regulatory Policies Act of
1978 (16 U.S.C. 2705).
Section 5 amends section 5 of the Federal Power Act to
provide FERC with the authority to extend preliminary permit
periods for up to 2 years, for a total of 5 years if FERC finds
that the permittee has carried out activities under the permit
in good faith and with reasonable diligence.
Section 6 promotes hydropower development at non-powered
dams and closed-loop pumped storage projects by directing FERC
to examine through a pilot process the feasibility of
establishing a 2-year licensing process for hydropower
development at non-powered dams and closed-loop pumped storage
projects. The results of the program shall be reported to
Congress.
Section 7 directs the Secretary of Energy to complete a
study of: (1) the technical flexibility and potential of
certain new and existing pumped storage facilities to support
intermittent renewable generation and provide grid reliability
benefits; and (2) the range of opportunities for hydropower
from conduits in the United States.
Cost and Budgetary Considerations
The following estimate of costs of this measure has been
provided by the Congressional Budget Office:
H.R. 267--Hydropower Regulatory Efficiency Act of 2013
Under the Federal Power Act, the Federal Energy Regulatory
Commission (FERC) issues licenses and regulates hydroelectric
facilities, regardless of size. H.R. 267 would amend current
law to allow FERC to extend certain permits related to
hydroelectric facilities and exempt small hydroelectric
facilities with a generating capacity of 10 megawatts or less
from FERC's licensing requirements. In addition, the
legislation would direct the Secretary of Energy to study the
feasibility of generating hydroelectric power using water
flowing through conduits or at facilities that store water.
Finally, H.R. 267 would authorize FERC to carry out pilot
projects to demonstrate the potential of generating
hydroelectric power at nonpowered dams and water-storage
facilities.
Based on information from FERC and the Department of Energy
(DOE), CBO estimates that implementing H.R. 267 would have no
significant net impact on the federal budget. CBO anticipates
that the proposed changes to FERC's permitting and licensing
requirements would reduce the commission's workload. We also
estimate that FERC would spend about $1 million on pilot
projects authorized under the legislation, assuming
appropriation of the necessary amounts. However, because FERC
recovers 100 percent of its costs through user fees, any change
in the agency's costs (which are controlled through annual
appropriation acts) would be offset by an equal change in fees
that the commission charges, resulting in no net change in
federal spending. Finally, CBO estimates that any increased
costs to DOE to prepare the study that would be required under
H.R. 267 would be negligible because the proposed study is
similar to ongoing efforts to analyze the potential for
developing hydropower resources. Enacting H.R. 267 would not
affect direct spending or revenues; therefore, pay-as-you-go
procedures do not apply.
H.R. 267 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
On January 31, 2013, CBO transmitted a cost estimate for
H.R. 267 as ordered reported by the House Committee on Energy
and Natural Resources on January 22, 2013. On May 14, 2013, CBO
transmitted a cost estimate for S. 545, the Hydropower
Regulatory Efficiency Act of 2013, as ordered reported by the
Senate Committee on Energy and Natural Resources on May 8,
2013. All those versions of the legislation are similar, and
the CBO cost estimates are the same.
The CBO staff contact for this estimate is Megan Carroll.
The estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Congressionally Directed Spending
H.R. 267, as ordered reported, does not contain any
congressionally directed spending items, limited tax benefits,
or limited tariff benefits as defined in rule XLIV of the
Standing Rules of the Senate.
Regulatory Impact Evaluation
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact which would be incurred in
carrying out H.R. 267.
The bill is not a regulatory measure in the sense of
imposing Government-established standards or significant
economic responsibilities on private individuals and
businesses.
No personal information would be collected in administering
the program. Therefore, there would be no impact on personal
privacy.
Little, if any, additional paperwork would result from the
enactment of H.R. 267 as ordered reported.
Executive Communications
The testimony provided by the Federal Energy Regulatory
Commission at the April 23, 2013 Full Committee hearing on H.R.
267 follows.
Testimony of Jeff C. Wright, Director, Office of Energy Projects,
Federal Energy Regulatory Commission
Chairman Wyden, Ranking Member Murkowski, and Members of
the Committee:
My name is Jeff Wright and I am the Director of the Office
of Energy Projects at the Federal Energy Regulatory Commission
(Commission or FERC). I appreciate the opportunity to appear
before you to discuss the following legislation: S. 545,
``Hydropower Improvement Act of 2013'' and H.R. 267,
``Hydropower Regulatory Efficiency Act of 2013.'' As a member
of the Commission's staff, the views I express in this
testimony are my own, and not those of the Commission or of any
individual Commissioner.
i. background
The Commission regulates over 1,600 hydropower projects at
over 2,500 dams pursuant to Part I of the Federal Power Act
(FPA). Together, these projects represent 54 gigawatts of
hydropower capacity, more than half of all the hydropower in
the United States. Hydropower is an essential part of the
Nation's energy mix and offers the benefits of an emission-
free, renewable, domestic energy source with public and private
capacity together totaling about seven percent of U.S.
electricity generation.
Under the FPA, non-federal hydropower projects must be
licensed by the Commission if they: (1) are located on a
navigable waterway; (2) occupy federal lands; (3) use surplus
water from a federal dam; or (4) are located on non-navigable
waters over which Congress has jurisdiction under the Commerce
Clause, involve post-1935 construction, and affect interstate
or foreign commerce.
The FPA authorizes the Commission to issue either licenses
or exemptions for projects within its jurisdiction. Licenses
are generally issued for terms of between 30 and 50 years, are
renewable, and carry with them the right to exercise federal
eminent domain to obtain property necessary for the
construction, operation, and maintenance of a project.
Exemptions are perpetual, and thus do not need to be renewed,
but do not permit the use of eminent domain.
Congress has established two types of exemptions. First,
section 30 of the FPA allows the Commission to issue exemptions
for projects that use, for generation, the hydroelectric
potential of manmade conduits that are operated for the
distribution of water for agricultural, municipal, or
industrial consumption, and not primarily for the generation of
electricity. Conduit projects must be located on non-federal
lands, and have a maximum capacity of 15 megawatts (40
megawatts if the exemptee is a state or local government
entity). Second, in section 405(d) of the Public Utility
Regulatory Policies Act, Congress authorized the Commission to
grant exemptions for small hydroelectric power projects having
an installed capacity of 5,000 kilowatts or less. To qualify
for this type of exemption, a project must be located at an
existing dam that does not require construction or the
enlargement of an impoundment, or must use the hydropower
potential of a natural water feature, such as a waterfall. Both
types of exemptions are subject to mandatory fish and wildlife
conditions provided by federal and state resource agencies.
The Commission has established three licensing processes,
with the intent of allowing parties to select the process that
is best suited to individual proceedings. The integrated
licensing process (ILP) frontloads issue identification and
environmental study to the period before an application is
filed, and is thus well-suited to complex cases with
substantial issues. The alternative licensing process (ALP)
allows participants significant flexibility to tailor licensing
procedures in a manner that may work well for unique cases. The
traditional licensing process (TLP), in which environmental and
other work can occur after the application is filed, appears to
work best for less controversial matters. The TLP may be the
process that is best-suited for many simple cases involving
exemptions or small, low impact licenses. Commission staff has
also developed a pilot licensing process for marine and
hydrokinetic projects in which, with the assistance of federal
and state resource agencies, a project can be licensed in as
little as six months.
It is extremely important to note that project developers
and other stakeholders, not the Commission, in most instances
play the leading role in determining project success and
whether the regulatory process will be short or long, simple or
complex. The first key issue is site selection and proposed
project operation. For example, the processing of applications
tends to be expedited when applicants propose projects that:
(1) are located at an existing dam where hydropower facilities
do not currently exist, (2) would result in little change to
water flow and use, (3) are unlikely to affect threatened and
endangered species and are unlikely to need fish passage
facilities, and (4) involve lands and facilities that are
already owned by the applicant. To the extent that a proposed
project, even one of small size, raises concerns about water
use and other environmental issues, it may be difficult for the
Commission to quickly process an application.
Another, and related, factor is the extent to which project
developers reach out to affected stakeholders. If a developer
contacts concerned citizens, local, state, and federal
agencies, Indian tribes, and environmental organizations, and
works with them to develop consensus as to what information is
needed to understand the impacts of a project and what
environmental measures may be appropriate, and to develop
support for the project, the application and review process is
likely to be simpler and quicker. Where a project comes as a
surprise to affected entities or where a developer does not
respond to expressed concerns, the Commission's job becomes
much more difficult.
A final, and again related, matter is the development of
the full record that the Commission needs to act on an
application. A potential applicant needs to work with
Commission staff and with federal and state resource agencies
and other stakeholders to determine what information is needed
to support an application, and to provide the Commission with a
complete application. Where Commission staff or other
stakeholders must ask an applicant to provide information that
is missing from an application, the regulatory process slows
down.
The other entities with roles in the licensing and
exemption process regarding small hydropower projects are also
key to its success. The quickest, most efficient process can be
achieved only where federal and state agencies, as well as
other stakeholders, devote the resources early on to help
project review move ahead, and where they display the
flexibility to look at the merits of individual projects and
the willingness to shorten the process in appropriate cases.
Commission staff is dedicated to making the regulatory process
as short and cost-effective as possible. We can only do that
where applicants, resource agencies, and other stakeholders
serve as willing partners in the process.
ii. commission efforts regarding small and innovative projects
The majority of the hydropower projects regulated by the
Commission are small projects, with about 70 percent having an
installed capacity of 5 megawatts (MW) or less. In recent
years, the Commission has seen a greatly increased interest in
small hydropower projects at existing dams, in innovative
marine and hydrokinetic projects, and in pumped storage
projects, particularly closed-loop pumped storage, which does
not involve regular water withdrawals from rivers or other
water sources. The Commission has responded by implementing a
number of measures to facilitate efficient review of project
proposals. In 2007, in order to provide personalized,
responsive service to entities seeking to develop small
hydropower projects, Commission staff established a dedicated
phone line and email address for inquiries on small hydropower,
developed a brochure to provide guidance to potential
developers of small, low impact hydropower projects, and put
these resources and a list of frequently-asked questions on the
Commission's website.
In light of the continued growing interest in such
development, the Commission held a technical conference on
December 2, 2009, at its Washington, D.C. headquarters to
explore issues related to licensing, and exempting from
licensing, small non-federal hydropower projects in the U.S.
The technical conference generated discussion on
recommendations that could improve the process for authorizing
small hydropower projects. In addition to insights received
from the panelists and attendees at the technical conference,
written comments were solicited and over 40 comment letters
were received from industry representatives; federal, state,
and local agencies; private citizens; and nongovernmental
organizations. At the Commission's April 15, 2010 meeting,
staff reported on the conference and the comments received, and
presented an action plan to assist and expedite the review of
small hydropower proposals. The action plan adopted the
following immediate changes: (1) adding new web-based resources
to the Commission's website (www.ferc.gov) to make it easier
for applicants to understand and complete the licensing
process; (2) updating or creating Memoranda of Understanding
(MOUs) with other agencies to improve coordination; (3)
continuing to maintain our small hydropower contact list on our
web site to answer applicant questions; and (4) educating
potential small hydropower developers through a new education
and outreach program. The Commission has, under its small hydro
initiative, held numerous outreach meetings with small
hydropower developers and interested stakeholders, and
implemented web based tools, such as application templates and
application checklists, which potential applicants can use to
prepare their applications. The small hydro website further
contains guidance and sample letters that applicants can use to
obtain waivers from fish and wildlife agencies for part of the
prefiling consultation process. The Commission staff has also
relaxed some of the standards, under Section 4.39 of its
regulations, for exhibits and drawings for exemption
applications. For those applicants that have filed complete and
adequate applications, and for which the Commission has
determined that impacts are minimal, the Commission has reduced
the public notice period from 60 days to 30 days and the reply
period from 45 days to 15 days. A number of conduit and small
hydro exemptions have been approved in as short as two months
and original licenses in as short as 6 months from the date
that an application has been deemed complete.
Since the April 15, 2010 Commission meeting, we have
updated our MOU with the U.S. Army Corps of Engineers (March
2011) and entered into an MOU with the U.S. Coast Guard (March
2013); launched a small hydro program website (August 2010);
participated in small hydro workshops across the U.S.;
conducted webinars on our small hydro website (November 2010,
December 2010, June 2011, and January 2012); and updated our
small hydro brochure. Upcoming outreach efforts will include
participating on a small hydro panel at the National Hydropower
Association's annual conference in Washington, D.C., working
with the state of Colorado on providing state guidance
documents on our small hydro licensing process; and updating
our small hydro licensing web site in response to user input.
As a result of these efforts, consultation has improved,
applications are more complete, and application processing
times have been reduced. With this background, I will turn to
the draft legislation.
iii. hydropower improvement act of 2013 (s. 545) and hydropower
regulatory efficiency act of 2013 (h.r. 267)
The Hydropower Improvement Act of 2013 and the Hydropower
Regulatory Efficiency Act of 2013 have the commendable goal of
increasing hydropower production in the United States. I
strongly support this goal, and offer comments on specific
sections of the draft legislation.
A. Section 5 of S. 545 and Section 6 of H.R. 267
Section 5 of S. 545 and Section 6 of H.R. 267 would require
the Commission to investigate the feasibility of implementing a
two-year licensing process, in particular, with respect to
hydropower development at existing, non-powered dams, and for
closed-loop pumped storage projects.
I support the goal of an expedited licensing process.
Indeed, as I have discussed, it is Commission staff's goal to
act on all license applications as quickly as possible, and the
Commission has established processes that allow for great
flexibility and efficiency. I am thus not certain whether an
additional licensing process is necessary. During the last few
years, we have been able to issue some licenses in a matter of
a few months, where the project proponent had selected a site
wisely, stakeholders had agreed on information needs, and state
and federal agencies performed their responsibilities quickly.
Moreover, the Commission operates under significant constraints
imposed by the FPA, and by other legislation affecting the
licensing process--the Clean Water Act, Coastal Zone Management
Act, Endangered Species Act, and National Historic Preservation
Act among them. In the absence of the ability to waive sections
of the FPA and other acts, or to set enforceable schedules in
licensing proceedings, it is not clear that the Commission,
under its existing authorities, can mandate a shortened
process.
B. Section 6 of S. 545 and Section 4 of H.R. 267
Section 6 of S. 545 and Section 4 of H.R. 267 would
establish various measures to promote conduit hydropower
projects. This goal is consistent with Commission policy and
has been a major focus of Commission staff's effort in the last
few years. These sections would amend section 30 of the FPA to
establish a procedure whereby conduit projects with an
installed capacity of 5 MW or less would not be required to be
licensed, provided the applicant makes a showing that the
project qualifies as a conduit project. These sections would
also allow the Commission to grant conduit exemptions on
federal lands and would permit the Commission to issue conduit
exemptions for those projects with an installed capacity of up
to 40 MW. This proposed upper limit would apply to non-
municipal, as well as municipal applicants. I support these
provisions, which should serve to increase the amount of
electric generation derived from conduits.
C. Section 7 of S. 545 and Section 3 of H.R. 267
Section 7 of S. 545 and Section 3 of H.R. 267 would amend
Section 405(d) of the Public Utility Regulatory Policies Act of
1978 to increase the installed capacity of a project to which
the Commission could grant a small hydropower exemption from
5,000 to 10,000 kilowatts. This change would promote the
development of small hydropower at the nation's existing non-
powered dams by allowing a larger pool of small, low-impact
projects to qualify for small hydropower exemptions. Such
exemptions are attractive to developers in that the exemptions
are perpetual, and thus the developer need not expend the cost
and effort to renew the authorization as is the case with
licenses. I, therefore, support this provision.
D. Section 8 of S. 545 and Section 5 of H.R. 267
Section 8 of S. 545 and Section 5 of H.R. 267 would amend
the FPA to authorize the Commission to extend the term of a
preliminary permit issued under FPA Section 5 once for up to
two years. Preliminary permits grant the permittee a ``first-
to-file'' preference with respect to license applications for
projects being studied under a permit. Commission staff has
heard anecdotally that developers are concerned that the need
for environmental studies in some instances makes it difficult
to complete a license application within the current maximum
three-year term of a permit, with the result that a developer
which has invested substantial time and money studying a
project may face the possibility of losing its project based on
competition from other entities--particular those with
statutorily-granted municipal preference--if it needs to seek a
subsequent permit. I therefore support the proposed FPA
amendment, which could ameliorate this problem. It might be
worth considering, as an alternative, authorizing the
Commission to issue permits for terms of up to five years,
which could avoid the need for developers to go through the
process of seeking an extension.
E. Section 9 of S. 545 and Section 7 of H.R. 267
Section 9 of S. 545 and Section 7 of H.R. 267 would require
the Department of Energy to study the flexibility and
reliability that pumped storage facilities can provide and the
opportunities and potential generation from conduits. While I
cannot speak for the Department of Energy, I support this
research.
iv. conclusion
There is a great deal of potential for the development of
additional hydropower projects throughout the country,
including small projects and marine and hydrokinetic projects.
Working within the authority given it by Congress, the
Commission continues to adapt its existing, flexible procedures
to facilitate the review and, where appropriate, the approval
of such projects. Commission staff remains committed to
exploring with project developers, its sister federal agencies,
Indian tribes, the states, local government, and other
stakeholders every avenue for the responsible development of
our nation's hydropower potential. The legislation under
consideration will, as I have testified, assist in realizing
that potential.
This concludes my remarks. I would be pleased to answer any
questions you may have.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill H.R. 267, as ordered reported, are shown as follows
(existing law proposed to be omitted is enclosed in black
brackets, new matter is printed in italic, existing law in
which no change is proposed is shown in roman):
PUBLIC UTILITY REGULATORY POLICIES ACT OF 1978
(Public Law 95-617, as amended)
AN ACT To suspend until the close of June 30, 1980, the duty on certain
doxorubicin hydrochloride antibiotics.
* * * * * * *
TITLE IV--SMALL HYDROELECTRIC POWER PROJECTS
* * * * * * *
SEC. 405. SIMPLIFIED AND EXPEDITIOUS LICENSING PROCEDURES.
(a) Establishment of Program.--The Commission shall
establish, in such manner as the Commission deems appropriate,
consistent with the applicable provisions of law, a program to
use simple and expeditious licensing procedures under the
Federal Power Act for small hydroelectric power projects in
connection with existing dams.
* * * * * * *
(d) Exemptions From Licensing Requirements in Certain
Cases.--The Commission may in its discretion (by rule or order)
grant an exemption in whole or in part from the requirements
(including the licensing requirements) of part I of the Federal
Power Act to small hydroelectric power projects having a
proposed installed capacity of [5,000] 10,000 kilowatts or
less, on a case-by-case basis or on the basis of classes or
categories of projects, subject to the same limitations (to
ensure protection for fish and wildlife as well as other
environmental concerns) as those which are set forth in
subsections (c) and (d) of section 30 of the Federal Power Act
with respect to determinations made and exemptions granted
under [subsection (a) of such section 30] subsection (b) of
such section 30; and subsections (c) and (d) of such section 30
shall apply with respect to actions taken and exemptions
granted under this subsection. Except as specifically provided
in this subsection, the granting of an exemption to a project
under this subsection shall in no case have the effect of
waiving or limiting the application (to such project) of the
second sentence of subsection (b) of this section.
* * * * * * *
FEDERAL POWER ACT
(The Act of June 10, 1920; 41 Stat. 1063, Chapter 685)
* * * * * * *
PART I
* * * * * * *
Sec. 5. (a) Each preliminary permit issued under this Part
shall be for the sole purpose of maintaining priority of
application for a license under the terms of this Act for such
period or periods, not exceeding a total of three years, as in
the discretion of the Commission may be necessary for making
examinations and surveys, for preparing maps, plans,
specifications, and estimates, and for making financial
arrangements.
(b) The Commission may extend the period of a preliminary
permit once for not more than 2 additional years beyond the 3
years permitted by subsection (a) if the Commission finds that
the permittee has carried out activities under such permit in
good faith and with reasonable diligence.
(c) Each such permit shall set forth the conditions under
which priority shall be maintained.
(d) Such permits shall not be transferable, and may be
canceled by order of the Commission upon failure of permittees
to comply with the conditions thereof or for other good cause
shown after notice and opportunity for hearing.
* * * * * * *
Sec. 30. [(a) Except as provided in subsection (b) or (c),
the Commission may grant an exemption in whole or in part from
the requirements of this part, including any license
requirements contained in this part, to any facility (not
including any dam or other impoundment) constructed, operated,
or maintained for the generation of electric power which the
Commission determines, by rule or order--
[(1) is located on non-Federal lands, and
[(2) utilizes for such generation only the
hydroelectric potential of a manmade conduit, which is
operated for the distribution of water for
agricultural, municipal, or industrial consumption and
not primarily for the generation of electricity.
[(b) The Commission may not grant any exemption under
subsection (a) to any facility the installed capacity of which
exceeds 15 megawatts (40 megawatts in the case of a facility
constructed, operated, and maintained by an agency or
instrumentality of a State or local government solely for water
supply for municipal purposes.]
(a)(1) A qualifying conduit hydropower facility shall not
be required to be licensed under this part.
(2)(A) Any person, State, or municipality proposing to
construct a qualifying conduit hydropower facility shall file
with the Commission a notice of intent to construct such
facility. The notice shall include sufficient information to
demonstrate that the facility meets the qualifying criteria.
(B) Not later than 15 days after receipt of a notice of
intent filed under subparagraph (A), the Commission shall--
(i) make an initial determination as to whether the
facility meets the qualifying criteria; and
(ii) if the Commission makes an initial
determination, pursuant to clause (i), that the
facility meets the qualifying criteria, publish public
notice of the notice of intent filed under subparagraph
(A).
(C) If, not later than 45 days after the date of
publication of the public notice described in subparagraph
(B)(ii)--
(i) an entity contests whether the facility meets the
qualifying criteria, the Commission shall promptly
issue a written determination as to whether the
facility meets such criteria; or
(ii) no entity contests whether the facility meets
the qualifying criteria, the facility shall be deemed
to meet such criteria.
(3) For purposes of this section:
(A) The term ``conduit'' means any tunnel, canal,
pipeline, aqueduct, flume, ditch, or similar manmade
water conveyance that is operated for the distribution
of water for agricultural, municipal, or industrial
consumption and not primarily for the generation of
electricity.
(B) The term ``qualifying conduit hydropower
facility'' means a facility (not including any dam or
other impoundment) that is determined or deemed under
paragraph (2)(C) to meet the qualifying criteria.
(C) The term ``qualifying criteria'' means, with
respect to a facility--
(i) the facility is constructed, operated, or
maintained for the generation of electric power
and uses for such generation only the
hydroelectric potential of a non-federally
owned conduit;
(ii) the facility has an installed capacity
that does not exceed 5 megawatts; and
(iii) on or before the date of enactment of
the Hydropower Regulatory Efficiency Act of
2013, the facility is not licensed under, or
exempted from the license requirements
contained in, this part.
(b) Subject to subsection (c), the Commission may grant an
exemption in whole or in part from the requirements of this
part, including any license requirements contained in this
part, to any facility (not including any dam or other
impoundment) constructed, operated, or maintained for the
generation of electric power which the Commission determines,
by rule or order--
(1) utilizes for such generation only the
hydroelectric potential of a conduit; and
(2) has an installed capacity that does not exceed 40
megawatts.
(c) In making the determination under [subsection (a)]
subsection (b) of this section the Commission shall consult
with the United States Fish and Wildlife Service, National
Marine Fisheries Service, and the State agency exercising
administration over the fish and wildlife resources of the
State in which the facility is or will be located, in the
manner provided by the Fish and Wildlife Coordination Act (16
U.S.C. 661, et seq.), and shall include in any such exemption--
(1) such terms and conditions as the Fish and
Wildlife Service, National Marine Fisheries Service,
and the State agency each determine are appropriate to
prevent loss of, or damage to, such resources and to
otherwise carry out the purposes of such Act, and
(2) such terms and conditions as the Commission deems
appropriate to insure that such facility continues to
comply with the provisions of this section and terms
and conditions included in any such exemption.
(d) Any violation of a term or condition of any exemption
granted under [subsection (a)] subsection (b) of this section
shall be treated as a violation of a rule or order of the
Commission under this chapter.
* * * * * * *