Pacific Northwest Pumped Storage Hydropower Development Act of 2021

II 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 mul- tiple Bureau of Reclamation reservoirs. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Pacific Northwest 4 Pumped Storage Hydropower Development Act of 2021’’. 5 SEC. 2. AUTHORITY FOR PUMPED STORAGE HYDROPOWER 6 DEVELOPMENT USING MULTIPLE BUREAU OF 7 RECLAMATION RESERVOIRS. 8 Section 9(c) of the Reclamation Project Act of 1939 9 (43 U.S.C. 485h(c)) is amended— 10 VerDate Sep 11 2014 04:23 May 14, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1246.IS S1246 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1246 IS (1) in paragraph (1), in the fourth sentence, by 1 striking ‘‘, including small conduit hydropower devel- 2 opment’’ and inserting ‘‘and reserve to the Secretary 3 the exclusive authority to develop small conduit hy- 4 dropower using Bureau of Reclamation facilities and 5 pumped storage hydropower exclusively using Bu- 6 reau of Reclamation reservoirs’’; and 7 (2) in paragraph (8), by striking ‘‘has been 8 filed with the Federal Energy Regulatory Commis- 9 sion as of the date of the enactment of the Bureau 10 of Reclamation Small Conduit Hydropower Develop- 11 ment and Rural Jobs Act’’ and inserting ‘‘was filed 12 with the Federal Energy Regulatory Commission be- 13 fore August 9, 2013, and is still pending’’. 14 SEC. 3. LIMITATIONS ON ISSUANCE OF CERTAIN LEASES OF 15 POWER PRIVILEGE. 16 (a) DEFINITIONS.—In this section: 17 (1) COMMISSION.—The term ‘‘Commission’’ 18 means the Federal Energy Regulatory Commission. 19 (2) DIRECTOR.—The term ‘‘Director’’ means 20 the Director of the Office of Hearings and Appeals. 21 (3) OFFICE OF HEARINGS AND APPEALS.—The 22 term ‘‘Office of Hearings and Appeals’’ means the 23 Office of Hearings and Appeals of the Department 24 of the Interior. 25 VerDate Sep 11 2014 04:23 May 14, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1246.IS S1246 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1246 IS (4) PARTY.—The term ‘‘party’’, with respect to 1 a study plan agreement, means each of the following 2 parties to the study plan agreement: 3 (A) The proposed lessee. 4 (B) The Tribes. 5 (5) PROJECT.—The term ‘‘project’’ means a 6 proposed pumped storage facility that— 7 (A) would use multiple Bureau of Rec- 8 lamation reservoirs; and 9 (B) as of June 1, 2017, was subject to a 10 preliminary permit issued by the Commission 11 pursuant to section 4(f) of the Federal Power 12 Act (16 U.S.C. 797(f)). 13 (6) PROPOSED LESSEE.—The term ‘‘proposed 14 lessee’’ means the proposed lessee of a project. 15 (7) SECRETARY.—The term ‘‘Secretary’’ means 16 the Secretary of the Interior. 17 (8) STUDY PLAN.—The term ‘‘study plan’’ 18 means the plan described in subsection (d)(1). 19 (9) STUDY PLAN AGREEMENT.—The term 20 ‘‘study plan agreement’’ means an agreement en- 21 tered into under subsection (b)(1) and described in 22 subsection (c). 23 (10) TRIBES.—The term ‘‘Tribes’’ means— 24 VerDate Sep 11 2014 04:23 May 14, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1246.IS S1246 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1246 IS (A) the Confederated Tribes of the Colville 1 Reservation; and 2 (B) the Spokane Tribe of Indians of the 3 Spokane Reservation. 4 (b) REQUIREMENT FOR ISSUANCE OF LEASES OF 5 POWER PRIVILEGE.—The Secretary shall not issue a lease 6 of power privilege pursuant to section 9(c)(1) of the Rec- 7 lamation Project Act of 1939 (43 U.S.C. 485h(c)(1)) (as 8 amended by section 2) for a project unless— 9 (1) the proposed lessee and the Tribes have en- 10 tered into a study plan agreement; or 11 (2) the Secretary or the Director, as applicable, 12 makes a final determination for— 13 (A) a study plan agreement under sub- 14 section (c)(2); or 15 (B) a study plan under subsection (d). 16 (c) STUDY PLAN AGREEMENT REQUIREMENTS.— 17 (1) IN GENERAL.—A study plan agreement 18 shall— 19 (A) establish the deadlines for the pro- 20 posed lessee to formally respond in writing to 21 comments and study requests about the project 22 previously submitted to the Commission; 23 (B) allow for the parties to submit addi- 24 tional comments and study requests if any as- 25 VerDate Sep 11 2014 04:23 May 14, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1246.IS S1246 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1246 IS pect of the project, as proposed, differs from an 1 aspect of the project, as described in a 2 preapplication document provided to the Com- 3 mission; 4 (C) except as expressly agreed to by the 5 parties or as provided in paragraph (2) or sub- 6 section (d), require that the proposed lessee 7 conduct each study described in— 8 (i) a study request about the project 9 previously submitted to the Commission; or 10 (ii) any additional study request sub- 11 mitted in accordance with the study plan 12 agreement; 13 (D) require that the proposed lessee study 14 any potential adverse economic effects of the 15 project on the Tribes, including effects on— 16 (i) annual payments to the Confed- 17 erated Tribes of the Colville Reservation 18 under section 5(b) of the Confederated 19 Tribes of the Colville Reservation Grand 20 Coulee Dam Settlement Act (Public Law 21 103–436; 108 Stat. 4579); and 22 (ii) annual payments to the Spokane 23 Tribe of Indians of the Spokane Reserva- 24 tion authorized after the date of enactment 25 VerDate Sep 11 2014 04:23 May 14, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1246.IS S1246 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1246 IS of this Act, the amount of which derives 1 from the annual payments described in 2 clause (i); 3 (E) establish a protocol for communication 4 and consultation between the parties; 5 (F) provide mechanisms for resolving dis- 6 putes between the parties regarding implemen- 7 tation and enforcement of the study plan agree- 8 ment; and 9 (G) contain other provisions determined to 10 be appropriate by the parties. 11 (2) DISPUTES.— 12 (A) IN GENERAL.—If the parties cannot 13 agree to the terms of a study plan agreement 14 or implementation of those terms, the parties 15 shall submit to the Director, for final deter- 16 mination on the terms or implementation of the 17 study plan agreement, notice of the dispute, 18 consistent with paragraph (1)(F), to the extent 19 the parties have agreed to a study plan agree- 20 ment. 21 (B) INCLUSION.—A dispute covered by 22 subparagraph (A) may include the view of a 23 proposed lessee that an additional study request 24 submitted in accordance with paragraph (1)(B) 25 VerDate Sep 11 2014 04:23 May 14, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1246.IS S1246 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1246 IS is not reasonably calculated to assist the Sec- 1 retary in evaluating the potential impacts of the 2 project. 3 (C) TIMING.—The Director shall issue a 4 determination regarding a dispute under sub- 5 paragraph (A) not later than 120 days after the 6 date on which the Director receives notice of 7 the dispute under that subparagraph. 8 (d) STUDY PLAN.— 9 (1) IN GENERAL.—The proposed lessee shall 10 submit to the Secretary for approval a study plan 11 that details the proposed methodology for per- 12 forming each of the studies— 13 (A) identified in the study plan agreement 14 of the proposed lessee; or 15 (B) determined by the Director in a final 16 determination regarding a dispute under sub- 17 section (c)(2). 18 (2) INITIAL DETERMINATION.—Not later than 19 60 days after the date on which the Secretary re- 20 ceives the study plan under paragraph (1), the Sec- 21 retary shall make an initial determination that— 22 (A) approves the study plan; 23 (B) rejects the study plan on the grounds 24 that the study plan— 25 VerDate Sep 11 2014 04:23 May 14, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1246.IS S1246 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1246 IS (i) lacks sufficient detail on a pro- 1 posed methodology for a study identified in 2 the study plan agreement; or 3 (ii) is inconsistent with the study plan 4 agreement; or 5 (C) imposes additional study plan require- 6 ments that the Secretary determines are nec- 7 essary to adequately define the potential effects 8 of the project on— 9 (i) the exercise of the paramount 10 hunting, fishing, and boating rights of the 11 Tribes reserved pursuant to the Act of 12 June 29, 1940 (54 Stat. 703, chapter 460; 13 16 U.S.C. 835d et seq.); 14 (ii) the annual payments described in 15 clauses (i) and (ii) of subsection (c)(1)(D); 16 (iii) the Columbia Basin project (as 17 defined in section 1 of the Act of May 27, 18 1937 (50 Stat. 208, chapter 269; 57 Stat. 19 14, chapter 14; 16 U.S.C. 835)); 20 (iv) historic properties and cultural or 21 spiritually significant resources; and 22 (v) the environment. 23 (3) OBJECTIONS.— 24 VerDate Sep 11 2014 04:23 May 14, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1246.IS S1246 kjohnson on DSK79L0C42PROD with BILLS 9 •S 1246 IS (A) IN GENERAL.—Not later than 30 days 1 after the date on which the Secretary makes an 2 initial determination under paragraph (2), the 3 Tribes or the proposed lessee may submit to the 4 Director an objection to the initial determina- 5 tion. 6 (B) FINAL DETERMINATION.—Not later 7 than 120 days after the date on which the Di- 8 rector receives an objection under subparagraph 9 (A), the Director shall— 10 (i) hold a hearing on the record re- 11 garding the objection; and 12 (ii) make a final determination that 13 establishes the study plan, including a de- 14 scription of studies the proposed lessee is 15 required to perform. 16 (4) NO OBJECTIONS.—If no objections are sub- 17 mitted by the deadline described in paragraph 18 (3)(A), the initial determination of the Secretary 19 under paragraph (2) shall be final. 20 (e) CONDITIONS OF LEASE.— 21 (1) CONSISTENCY WITH RIGHTS OF TRIBES; 22 PROTECTION, MITIGATION, AND ENHANCEMENT OF 23 FISH AND WILDLIFE.— 24 VerDate Sep 11 2014 04:23 May 14, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1246.IS S1246 kjohnson on DSK79L0C42PROD with BILLS 10 •S 1246 IS (A) IN GENERAL.—Any lease of power 1 privilege issued by the Secretary for a project 2 under subsection (b) shall contain conditions— 3 (i) to ensure that the project is con- 4 sistent with, and will not interfere with, 5 the exercise of the paramount hunting, 6 fishing, and boating rights of the Tribes 7 reserved pursuant to the Act of June 29, 8 1940 (54 Stat. 703, chapter 460; 16 9 U.S.C. 835d et seq.); and 10 (ii) to adequately and equitably pro- 11 tect, mitigate damages to, and enhance 12 fish and wildlife, including related spawn- 13 ing grounds and habitat, affected by the 14 development, operation, and management 15 of the project. 16 (B) RECOMMENDATIONS OF THE 17 TRIBES.—The conditions required under sub- 18 paragraph (A) shall be based on joint rec- 19 ommendations of the Tribes. 20 (C) RESOLVING INCONSISTENCIES.— 21 (i) IN GENERAL.—If the Secretary de- 22 termines that any recommendation of the 23 Tribes under subparagraph (B) is not rea- 24 sonably calculated to ensure the project is 25 VerDate Sep 11 2014 04:23 May 14, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1246.IS S1246 kjohnson on DSK79L0C42PROD with BILLS 11 •S 1246 IS consistent with subparagraph (A) or is in- 1 consistent with the requirements of the 2 Reclamation Project Act of 1939 (43 3 U.S.C. 485 et seq.), the Secretary shall at- 4 tempt to resolve any such inconsistency 5 with the Tribes, giving due weight to the 6 recommendations and expertise of the 7 Tribes. 8 (ii) PUBLICATION OF FINDINGS.—If, 9 after an attempt to resolve an inconsist- 10 ency under clause (i), the Secretary does 11 not adopt in whole or in part a rec- 12 ommendation of the Tribes under subpara- 13 graph (B), the Secretary shall issue each 14 of the following findings, including a state- 15 ment of the basis for each of the findings: 16 (I) A finding that adoption of the 17 recommendation is inconsistent with 18 the requirements of the Reclamation 19 Project Act of 1939 (43 U.S.C. 485 et 20 seq.). 21 (II) A finding that the conditions 22 selected by the Secretary to be con- 23 tained in the lease of power privilege 24 under subparagraph (A) comply with 25 VerDate Sep 11 2014 04:23 May 14, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1246.IS S1246 kjohnson on DSK79L0C42PROD with BILLS 12 •S 1246 IS the requirements of clauses (i) and 1 (ii) of that subparagraph. 2 (2) ANNUAL CHARGES PAYABLE BY LI- 3 CENSEE.— 4 (A) IN GENERAL.—Subject to subpara- 5 graph (B), any lease of power privilege issued 6 by the Secretary for a project under subsection 7 (b) shall contain conditions that require the les- 8 see of the project to make direct payments to 9 the Tribes through reasonable annual charges 10 in an amount that recompenses the Tribes for 11 any adverse economic effect of the project iden- 12 tified in a study performed pursuant to the 13 study plan agreement for the project. 14 (B) AGREEMENT.— 15 (i) IN GENERAL.—The amount of the 16 annual charges described in subparagraph 17 (A) shall be established through agreement 18 between the proposed lessee and the 19 Tribes. 20 (ii) CONDITION.—The agreement 21 under clause (i), including any modifica- 22 tion of the agreement, shall be deemed to 23 be a condition to the lease of power privi- 24 VerDate Sep 11 2014 04:23 May 14, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1246.IS S1246 kjohnson on DSK79L0C42PROD with BILLS 13 •S 1246 IS lege issued by the Secretary for a project 1 under subsection (b). 2 (C) DISPUTE RESOLUTION.— 3 (i) IN GENERAL.—If the proposed les- 4 see and the Tribes cannot agree to the 5 terms of an agreement under subpara- 6 graph (B)(i), the proposed lessee and the 7 Tribes shall submit notice of the dispute to 8 the Director. 9 (ii) RESOLUTION.—The Director shall 10 resolve the dispute described in clause (i) 11 not later than 180 days after the date on 12 which the Director receives notice of the 13 dispute under that clause. 14 (3) ADDITIONAL CONDITIONS.—The Secretary 15 may include in any lease of power privilege issued by [Text truncated for display. Full text available on Congress.gov.]