Pacific Northwest Pumped Storage Hydropower Development Act of 2021

IB Union Calendar No. 463 117TH CONGRESS 2D SESSION H. R. 2641 [Report No. 117–644] To amend the Reclamation Project Act of 1939 to authorize pumped storage hydropower development utilizing multiple Bureau of Reclamation reservoirs. IN THE HOUSE OF REPRESENTATIVES APRIL 19, 2021 Mr. NEWHOUSE introduced the following bill; which was referred to the Committee on Natural Resources DECEMBER 15, 2022 Reported from the Committee on Natural Resources; committed to the Com- mittee of the Whole House on the State of the Union and ordered to be printed VerDate Sep 11 2014 21:46 Dec 15, 2022 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\H2641.RH H2641 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 2641 RH A BILL To amend the Reclamation Project Act of 1939 to authorize pumped storage hydropower development utilizing mul- tiple Bureau of Reclamation reservoirs. VerDate Sep 11 2014 21:46 Dec 15, 2022 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6652 E:\BILLS\H2641.RH H2641 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 2641 RH 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 (1) in paragraph (1), in the fourth sentence, by 11 striking ‘‘, including small conduit hydropower devel- 12 opment’’ and inserting ‘‘and reserve to the Secretary 13 the exclusive authority to develop small conduit hy- 14 dropower using Bureau of Reclamation facilities and 15 pumped storage hydropower exclusively using Bu- 16 reau of Reclamation reservoirs’’; and 17 (2) in paragraph (8), by striking ‘‘has been 18 filed with the Federal Energy Regulatory Commis- 19 sion as of the date of the enactment of the Bureau 20 of Reclamation Small Conduit Hydropower Develop- 21 ment and Rural Jobs Act’’ and inserting ‘‘was filed 22 with the Federal Energy Regulatory Commission be- 23 fore August 9, 2013, and is still pending’’. 24 VerDate Sep 11 2014 21:46 Dec 15, 2022 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2641.RH H2641 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 2641 RH SEC. 3. LIMITATIONS ON ISSUANCE OF CERTAIN LEASES OF 1 POWER PRIVILEGE. 2 (a) DEFINITIONS.—In this section: 3 (1) COMMISSION.—The term ‘‘Commission’’ 4 means the Federal Energy Regulatory Commission. 5 (2) DIRECTOR.—The term ‘‘Director’’ means 6 the Director of the Office of Hearings and Appeals. 7 (3) OFFICE OF HEARINGS AND APPEALS.—The 8 term ‘‘Office of Hearings and Appeals’’ means the 9 Office of Hearings and Appeals of the Department 10 of the Interior. 11 (4) PARTY.—The term ‘‘party’’, with respect to 12 a study plan agreement, means each of the following 13 parties to the study plan agreement: 14 (A) The proposed lessee. 15 (B) The Tribes. 16 (5) PROJECT.—The term ‘‘project’’ means a 17 proposed pumped storage facility that— 18 (A) would use multiple Bureau of Rec- 19 lamation reservoirs; and 20 (B) as of June 1, 2017, was subject to a 21 preliminary permit issued by the Commission 22 pursuant to section 4(f) of the Federal Power 23 Act (16 U.S.C. 797(f)). 24 (6) PROPOSED LESSEE.—The term ‘‘proposed 25 lessee’’ means the proposed lessee of a project. 26 VerDate Sep 11 2014 21:46 Dec 15, 2022 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2641.RH H2641 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 2641 RH (7) SECRETARY.—The term ‘‘Secretary’’ means 1 the Secretary of the Interior. 2 (8) STUDY PLAN.—The term ‘‘study plan’’ 3 means the plan described in subsection (d)(1). 4 (9) STUDY PLAN AGREEMENT.—The term 5 ‘‘study plan agreement’’ means an agreement en- 6 tered into under subsection (b)(1) and described in 7 subsection (c). 8 (10) TRIBES.—The term ‘‘Tribes’’ means— 9 (A) the Confederated Tribes of the Colville 10 Reservation; and 11 (B) the Spokane Tribe of Indians of the 12 Spokane Reservation. 13 (b) REQUIREMENT FOR ISSUANCE OF LEASES OF 14 POWER PRIVILEGE.—The Secretary shall not issue a lease 15 of power privilege pursuant to section 9(c)(1) of the Rec- 16 lamation Project Act of 1939 (43 U.S.C. 485h(c)(1)) (as 17 amended by section 2) for a project unless— 18 (1) the proposed lessee and the Tribes have en- 19 tered into a study plan agreement; or 20 (2) the Secretary or the Director, as applicable, 21 makes a final determination for— 22 (A) a study plan agreement under sub- 23 section (c)(2); or 24 (B) a study plan under subsection (d). 25 VerDate Sep 11 2014 21:46 Dec 15, 2022 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2641.RH H2641 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 2641 RH (c) STUDY PLAN AGREEMENT REQUIREMENTS.— 1 (1) IN GENERAL.—A study plan agreement 2 shall— 3 (A) establish the deadlines for the pro- 4 posed lessee to formally respond in writing to 5 comments and study requests about the project 6 previously submitted to the Commission; 7 (B) allow for the parties to submit addi- 8 tional comments and study requests if any as- 9 pect of the project, as proposed, differs from an 10 aspect of the project, as described in a 11 preapplication document provided to the Com- 12 mission; 13 (C) except as expressly agreed to by the 14 parties or as provided in paragraph (2) or sub- 15 section (d), require that the proposed lessee 16 conduct each study described in— 17 (i) a study request about the project 18 previously submitted to the Commission; or 19 (ii) any additional study request sub- 20 mitted in accordance with the study plan 21 agreement; 22 (D) require that the proposed lessee study 23 any potential adverse economic effects of the 24 project on the Tribes, including effects on— 25 VerDate Sep 11 2014 21:46 Dec 15, 2022 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2641.RH H2641 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 2641 RH (i) annual payments to the Confed- 1 erated Tribes of the Colville Reservation 2 under section 5(b) of the Confederated 3 Tribes of the Colville Reservation Grand 4 Coulee Dam Settlement Act (Public Law 5 103–436; 108 Stat. 4579); and 6 (ii) annual payments to the Spokane 7 Tribe of Indians of the Spokane Reserva- 8 tion authorized after the date of enactment 9 of this Act, the amount of which derives 10 from the annual payments described in 11 clause (i); 12 (E) establish a protocol for communication 13 and consultation between the parties; 14 (F) provide mechanisms for resolving dis- 15 putes between the parties regarding implemen- 16 tation and enforcement of the study plan agree- 17 ment; and 18 (G) contain other provisions determined to 19 be appropriate by the parties. 20 (2) DISPUTES.— 21 (A) IN GENERAL.—If the parties cannot 22 agree to the terms of a study plan agreement 23 or implementation of those terms, the parties 24 shall submit to the Director, for final deter- 25 VerDate Sep 11 2014 21:46 Dec 15, 2022 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2641.RH H2641 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 2641 RH mination on the terms or implementation of the 1 study plan agreement, notice of the dispute, 2 consistent with paragraph (1)(F), to the extent 3 the parties have agreed to a study plan agree- 4 ment. 5 (B) INCLUSION.—A dispute covered by 6 subparagraph (A) may include the view of a 7 proposed lessee that an additional study request 8 submitted in accordance with paragraph (1)(B) 9 is not reasonably calculated to assist the Sec- 10 retary in evaluating the potential impacts of the 11 project. 12 (C) TIMING.—The Director shall issue a 13 determination regarding a dispute under sub- 14 paragraph (A) not later than 120 days after the 15 date on which the Director receives notice of 16 the dispute under that subparagraph. 17 (d) STUDY PLAN.— 18 (1) IN GENERAL.—The proposed lessee shall 19 submit to the Secretary for approval a study plan 20 that details the proposed methodology for per- 21 forming each of the studies— 22 (A) identified in the study plan agreement 23 of the proposed lessee; or 24 VerDate Sep 11 2014 21:46 Dec 15, 2022 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2641.RH H2641 kjohnson on DSK79L0C42PROD with BILLS 9 •HR 2641 RH (B) determined by the Director in a final 1 determination regarding a dispute under sub- 2 section (c)(2). 3 (2) INITIAL DETERMINATION.—Not later than 4 60 days after the date on which the Secretary re- 5 ceives the study plan under paragraph (1), the Sec- 6 retary shall make an initial determination that— 7 (A) approves the study plan; 8 (B) rejects the study plan on the grounds 9 that the study plan— 10 (i) lacks sufficient detail on a pro- 11 posed methodology for a study identified in 12 the study plan agreement; or 13 (ii) is inconsistent with the study plan 14 agreement; or 15 (C) imposes additional study plan require- 16 ments that the Secretary determines are nec- 17 essary to adequately define the potential effects 18 of the project on— 19 (i) the exercise of the paramount 20 hunting, fishing, and boating rights of the 21 Tribes reserved pursuant to the Act of 22 June 29, 1940 (54 Stat. 703, chapter 460; 23 16 U.S.C. 835d et seq.); 24 VerDate Sep 11 2014 21:46 Dec 15, 2022 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2641.RH H2641 kjohnson on DSK79L0C42PROD with BILLS 10 •HR 2641 RH (ii) the annual payments described in 1 clauses (i) and (ii) of subsection (c)(1)(D); 2 (iii) the Columbia Basin project (as 3 defined in section 1 of the Act of May 27, 4 1937 (50 Stat. 208, chapter 269; 57 Stat. 5 14, chapter 14; 16 U.S.C. 835)); 6 (iv) historic properties and cultural or 7 spiritually significant resources; and 8 (v) the environment. 9 (3) OBJECTIONS.— 10 (A) IN GENERAL.—Not later than 30 days 11 after the date on which the Secretary makes an 12 initial determination under paragraph (2), the 13 Tribes or the proposed lessee may submit to the 14 Director an objection to the initial determina- 15 tion. 16 (B) FINAL DETERMINATION.—Not later 17 than 120 days after the date on which the Di- 18 rector receives an objection under subparagraph 19 (A), the Director shall— 20 (i) hold a hearing on the record re- 21 garding the objection; and 22 (ii) make a final determination that 23 establishes the study plan, including a de- 24 VerDate Sep 11 2014 21:46 Dec 15, 2022 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H2641.RH H2641 kjohnson on DSK79L0C42PROD with BILLS 11 •HR 2641 RH scription of studies the proposed lessee is 1 required to perform. 2 (4) NO OBJECTIONS.—If no objections are sub- 3 mitted by the deadline described in paragraph 4 (3)(A), the initial determination of the Secretary 5 under paragraph (2) shall be final. 6 (e) CONDITIONS OF LEASE.— 7 (1) CONSISTENCY WITH RIGHTS OF TRIBES; 8 PROTECTION, MITIGATION, AND ENHANCEMENT OF 9 FISH AND WILDLIFE.— 10 (A) IN GENERAL.—Any lease of power 11 privilege issued by the Secretary for a project 12 under subsection (b) shall contain conditions— 13 (i) to ensure that the project is con- 14 sistent with, and will not interfere with, 15 the exercise of the paramount hunting, 16 fishing, and boating rights of the Tribes 17 reserved pursuant to the Act of June 29, 18 1940 (54 Stat. 703, chapter 460; 16 19 U.S.C. 835d et seq.); and 20 (ii) to adequately and equitably pro- 21 tect, mitigate damages to, and enhance 22 fish and wildlife, including related spawn- 23 ing grounds and habitat, affected by the 24 VerDate Sep 11 2014 21:46 Dec 15, 2022 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H2641.RH H2641 kjohnson on DSK79L0C42PROD with BILLS 12 •HR 2641 RH development, operation, and management 1 of the project. 2 (B) RECOMMENDATIONS OF THE 3 TRIBES.—The conditions required under sub- 4 paragraph (A) shall be based on joint rec- 5 ommendations of the Tribes. 6 (C) RESOLVING INCONSISTENCIES.— 7 (i) IN GENERAL.—If the Secretary de- 8 termines that any recommendation of the 9 Tribes under subparagraph (B) is not rea- 10 sonably calculated to ensure the project is 11 consistent with subparagraph (A) or is in- 12 consistent with the requirements of the 13 Reclamation Project Act of 1939 (43 14 U.S.C. 485 et seq.), the Secretary shall at- 15 tempt to resolve any such inconsistency 16 with the Tribes, giving due weight to the 17 recommendations and expertise of the 18 Tribes. 19 (ii) PUBLICATION OF FINDINGS.—If, 20 after an attempt to resolve an inconsist- 21 ency under clause (i), the Secretary does 22 not adopt in whole or in part a rec- 23 ommendation of the Tribes under subpara- 24 graph (B), the Secretary shall issue each 25 VerDate Sep 11 2014 21:46 Dec 15, 2022 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H2641.RH H2641 kjohnson on DSK79L0C42PROD with BILLS 13 •HR 2641 RH of the following findings, including a state- 1 ment of the basis for each of the findings: 2 (I) A finding that adoption of the 3 recommendation is inconsistent with 4 the requirements of the Reclamation 5 Project Act of 1939 (43 U.S.C. 485 et 6 seq.). 7 (II) A finding that the conditions 8 selected by the Secretary to be con- 9 tained in the lease of power privilege 10 under subparagraph (A) comply with 11 the requirements of clauses (i) and 12 (ii) of that subparagraph. 13 (2) ANNUAL CHARGES PAYABLE BY LI- 14 CENSEE.— 15 (A) IN GENERAL.—Subject to subpara- 16 graph (B), any lease of power privilege issued 17 by the Secretary for a project under subsection 18 (b) shall contain conditions that require the les- 19 see of the project to make direct payments to 20 the Tribes through reasonable annual charges 21 in an amount that recompenses the Tribes for 22 any adverse economic effect of the project iden- 23 tified in a study performed pursuant to the 24 study plan agreement for the project. 25 VerDate Sep 11 2014 21:46 Dec 15, 2022 Jkt 039200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H2641.RH H2641 kjohnson on DSK79L0C42PROD with BILLS 14 •HR 2641 RH (B) AGREEMENT.— 1 (i) IN GENERAL.—The amount of the 2 annual charges described in subparagraph 3 (A) shall be established through agreement 4 between the proposed lessee and the 5 Tribes. 6 (ii) CONDITION.—The agreement 7 under clause (i), including any modifica- 8 tion of the agreement, shall be deemed to 9 be a condition to the lease of power privi- 10 lege issued by the Secretary for a project 11 under subsection (b). 12 (C) DISPUTE RESOLUTION.— 13 (i) IN GENERAL.—If the proposed les- 14 see and the Tribes cannot agree to the 15 terms of an agreement under subpara- 16 graph (B)(i), the proposed lessee and the 17 [Text truncated for display. 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