Bureau of Reclamation Pumped Storage Hydropower Development Act

II Calendar No. 260 116TH CONGRESS 1ST SESSION S. 1751 [Report No. 116–140] 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 JUNE 5, 2019 Ms. CANTWELL introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources OCTOBER 23, 2019 Reported by Ms. MURKOWSKI, with an amendment [Omit the part struck through and insert the part printed in italic] 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 ‘‘Bureau of Reclamation 4 Pumped Storage Hydropower Development Act’’. 5 VerDate Sep 11 2014 22:10 Oct 23, 2019 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1751.RS S1751 kjohnson on DSK79L0C42 with BILLS 2 •S 1751 RS SEC. 2. AUTHORITY FOR PUMPED STORAGE HYDROPOWER 1 DEVELOPMENT USING MULTIPLE BUREAU OF 2 RECLAMATION RESERVOIRS. 3 Section 9(c) of the Reclamation Project Act of 1939 4 (43 U.S.C. 485h(c)) is amended— 5 (1) in paragraph (1), in the fourth sentence, by 6 striking ‘‘, including small conduit hydropower devel- 7 opment’’ and inserting ‘‘and reserve to the Secretary 8 the exclusive authority to develop small conduit hy- 9 dropower using Bureau of Reclamation facilities and 10 pumped storage hydropower exclusively using Bu- 11 reau of Reclamation reservoirs’’; and 12 (2) in paragraph (8), by striking ‘‘has been 13 filed with the Federal Energy Regulatory Commis- 14 sion as of August 9, 2013 as of the date of the enact- 15 ment of the Bureau of Reclamation Small Conduit 16 Hydropower Development and Rural Jobs Act’’ and 17 inserting ‘‘was filed with the Federal Energy Regu- 18 latory Commission before August 9, 2013, and is 19 still pending’’. 20 SEC. 3. LIMITATIONS ON ISSUANCE OF CERTAIN LEASES OF 21 POWER PRIVILEGE. 22 (a) DEFINITIONS.—In this section: 23 (1) COMMISSION.—The term ‘‘Commission’’ 24 means the Federal Energy Regulatory Commission. 25 VerDate Sep 11 2014 22:10 Oct 23, 2019 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1751.RS S1751 kjohnson on DSK79L0C42 with BILLS 3 •S 1751 RS (2) DIRECTOR.—The term ‘‘Director’’ means 1 the Director of the Office of Hearings and Appeals. 2 (3) OFFICE OF HEARINGS AND APPEALS.—The 3 term ‘‘Office of Hearings and Appeals’’ means the 4 Office of Hearings and Appeals of the Department 5 of the Interior. 6 (4) PARTY.—The term ‘‘party’’, with respect to 7 a study plan agreement, means each of the following 8 parties to the study plan agreement: 9 (A) The proposed lessee. 10 (B) The Tribes. 11 (5) PROJECT.—The term ‘‘project’’ means a 12 proposed pumped storage facility that— 13 (A) would use multiple Bureau of Rec- 14 lamation reservoirs; and 15 (B) as of June 1, 2017, was subject to a 16 preliminary permit issued by the Commission 17 pursuant to section 4(f) of the Federal Power 18 Act (16 U.S.C. 797(f)). 19 (6) PROPOSED LESSEE.—The term ‘‘proposed 20 lessee’’ means the proposed lessee of a project. 21 (7) SECRETARY.—The term ‘‘Secretary’’ means 22 the Secretary of the Interior. 23 (8) STUDY PLAN.—The term ‘‘study plan’’ 24 means the plan described in subsection (d)(1). 25 VerDate Sep 11 2014 22:10 Oct 23, 2019 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1751.RS S1751 kjohnson on DSK79L0C42 with BILLS 4 •S 1751 RS (9) STUDY PLAN AGREEMENT.—The term 1 ‘‘study plan agreement’’ means an agreement en- 2 tered into under subsection (b)(1) and described in 3 subsection (c). 4 (10) TRIBES.—The term ‘‘Tribes’’ means— 5 (A) the Confederated Tribes of the Colville 6 Reservation; and 7 (B) the Spokane Tribe of Indians of the 8 Spokane Reservation. 9 (b) REQUIREMENT FOR ISSUANCE OF LEASES OF 10 POWER PRIVILEGE.—The Secretary shall not issue a lease 11 of power privilege pursuant to section 9(c)(1) of the Rec- 12 lamation Project Act of 1939 (43 U.S.C. 485h(c)(1)) (as 13 amended by section 2) for a project unless— 14 (1) the proposed lessee and the Tribes have en- 15 tered into a study plan agreement; or 16 (2) the Secretary or the Director, as applicable, 17 makes a final determination for— 18 (A) a study plan agreement under sub- 19 section (c)(2); or 20 (B) a study plan under subsection (d). 21 (c) STUDY PLAN AGREEMENT REQUIREMENTS.— 22 (1) IN GENERAL.—A study plan agreement 23 shall— 24 VerDate Sep 11 2014 22:10 Oct 23, 2019 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1751.RS S1751 kjohnson on DSK79L0C42 with BILLS 5 •S 1751 RS (A) establish the deadlines for the pro- 1 posed lessee to formally respond in writing to 2 comments and study requests about the project 3 previously submitted to the Commission; 4 (B) allow for the parties to submit addi- 5 tional comments and study requests if any as- 6 pect of the project, as proposed, differs from an 7 aspect of the project, as described in a 8 preapplication document provided to the Com- 9 mission; 10 (C) except as expressly agreed to by the 11 parties or as provided in paragraph (2) or sub- 12 section (d), require that the proposed lessee 13 conduct each study described in— 14 (i) a study request about the project 15 previously submitted to the Commission; or 16 (ii) any additional study request sub- 17 mitted in accordance with the study plan 18 agreement; 19 (D) require that the proposed lessee study 20 any potential adverse economic effects of the 21 project on the Tribes, including effects on— 22 (i) annual payments to the Confed- 23 erated Tribes of the Colville Reservation 24 under section 5(b) of the Confederated 25 VerDate Sep 11 2014 22:10 Oct 23, 2019 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1751.RS S1751 kjohnson on DSK79L0C42 with BILLS 6 •S 1751 RS Tribes of the Colville Reservation Grand 1 Coulee Dam Settlement Act (Public Law 2 103–436; 108 Stat. 4579); and 3 (ii) annual payments to the Spokane 4 Tribe of Indians of the Spokane Reserva- 5 tion authorized after the date of enactment 6 of this Act, the amount of which derives 7 from the annual payments described in 8 clause (i); 9 (E) establish a protocol for communication 10 and consultation between the parties; 11 (F) provide mechanisms for resolving dis- 12 putes between the parties regarding implemen- 13 tation and enforcement of the study plan agree- 14 ment; and 15 (G) contain other provisions determined to 16 be appropriate by the parties. 17 (2) DISPUTES.— 18 (A) IN GENERAL.—If the parties cannot 19 agree to the terms of a study plan agreement 20 or implementation of those terms, the parties 21 shall submit to the Director, for final deter- 22 mination on the terms or implementation of the 23 study plan agreement, notice of the dispute, 24 consistent with paragraph (1)(F), to the extent 25 VerDate Sep 11 2014 22:10 Oct 23, 2019 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1751.RS S1751 kjohnson on DSK79L0C42 with BILLS 7 •S 1751 RS the parties have agreed to a study plan agree- 1 ment. 2 (B) INCLUSION.—A dispute covered by 3 subparagraph (A) may include the view of a 4 proposed lessee that an additional study request 5 submitted in accordance with paragraph (1)(B) 6 is not reasonably calculated to assist the Sec- 7 retary in evaluating the potential impacts of the 8 project. 9 (C) TIMING.—The Director shall issue a 10 determination regarding a dispute under sub- 11 paragraph (A) not later than 120 days after the 12 date on which the Director receives notice of 13 the dispute under that subparagraph. 14 (d) STUDY PLAN.— 15 (1) IN GENERAL.—The proposed lessee shall 16 submit to the Secretary for approval a study plan 17 that details the proposed methodology for per- 18 forming each of the studies— 19 (A) identified in the study plan agreement 20 of the proposed lessee; or 21 (B) determined by the Director in a final 22 determination regarding a dispute under sub- 23 section (c)(2). 24 VerDate Sep 11 2014 22:10 Oct 23, 2019 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1751.RS S1751 kjohnson on DSK79L0C42 with BILLS 8 •S 1751 RS (2) INITIAL DETERMINATION.—Not later than 1 60 days after the date on which the Secretary re- 2 ceives the study plan under paragraph (1), the Sec- 3 retary shall make an initial determination that— 4 (A) approves the study plan; 5 (B) rejects the study plan on the grounds 6 that the study plan— 7 (i) lacks sufficient detail on a pro- 8 posed methodology for a study identified in 9 the study plan agreement; or 10 (ii) is inconsistent with the study plan 11 agreement; or 12 (C) imposes additional study plan require- 13 ments that the Secretary determines are nec- 14 essary to adequately define the potential effects 15 of the project on— 16 (i) the exercise of the paramount 17 hunting, fishing, and boating rights of the 18 Tribes reserved pursuant to the Act of 19 June 29, 1940 (54 Stat. 703, chapter 460; 20 16 U.S.C. 835d et seq.); 21 (ii) the annual payments described in 22 clauses (i) and (ii) of subsection (c)(1)(D); 23 (iii) the Columbia Basin project (as 24 defined in section 1 of the Act of May 27, 25 VerDate Sep 11 2014 22:10 Oct 23, 2019 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1751.RS S1751 kjohnson on DSK79L0C42 with BILLS 9 •S 1751 RS 1937 (50 Stat. 208, chapter 269; 57 Stat. 1 14, chapter 14; 16 U.S.C. 835)); 2 (iv) historic properties and cultural or 3 spiritually significant resources; and 4 (v) the environment. 5 (3) OBJECTIONS.— 6 (A) IN GENERAL.—Not later than 30 days 7 after the date on which the Secretary makes an 8 initial determination under paragraph (2), the 9 Tribes or the proposed lessee may submit to the 10 Director an objection to the initial determina- 11 tion. 12 (B) FINAL DETERMINATION.—Not later 13 than 120 days after the date on which the Di- 14 rector receives an objection under subparagraph 15 (A), the Director shall— 16 (i) hold a hearing on the record re- 17 garding the objection; and 18 (ii) make a final determination that 19 establishes the study plan, including a de- 20 scription of studies the proposed lessee is 21 required to perform. 22 (4) NO OBJECTIONS.—If no objections are sub- 23 mitted by the deadline described in paragraph 24 VerDate Sep 11 2014 22:10 Oct 23, 2019 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1751.RS S1751 kjohnson on DSK79L0C42 with BILLS 10 •S 1751 RS (3)(A), the initial determination of the Secretary 1 under paragraph (2) shall be final. 2 (e) CONDITIONS OF LEASE.— 3 (1) CONSISTENCY WITH RIGHTS OF TRIBES; 4 PROTECTION, MITIGATION, AND ENHANCEMENT OF 5 FISH AND WILDLIFE.— 6 (A) IN GENERAL.—Any lease of power 7 privilege issued by the Secretary for a project 8 under subsection (b) shall contain conditions— 9 (i) to ensure that the project is con- 10 sistent with, and will not interfere with, 11 the exercise of the paramount hunting, 12 fishing, and boating rights of the Tribes 13 reserved pursuant to the Act of June 29, 14 1940 (54 Stat. 703, chapter 460; 16 15 U.S.C. 835d et seq.); and 16 (ii) to adequately and equitably pro- 17 tect, mitigate damages to, and enhance 18 fish and wildlife, including related spawn- 19 ing grounds and habitat, affected by the 20 development, operation, and management 21 of the project. 22 (B) RECOMMENDATIONS OF THE 23 TRIBES.—The conditions required under sub- 24 VerDate Sep 11 2014 22:10 Oct 23, 2019 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1751.RS S1751 kjohnson on DSK79L0C42 with BILLS 11 •S 1751 RS paragraph (A) shall be based on joint rec- 1 ommendations of the Tribes. 2 (C) RESOLVING INCONSISTENCIES.— 3 (i) IN GENERAL.—If the Secretary de- 4 termines that any recommendation of the 5 Tribes under subparagraph (B) is not rea- 6 sonably calculated to ensure the project is 7 consistent with subparagraph (A) or is in- 8 consistent with the requirements of the 9 Reclamation Project Act of 1939 (43 10 U.S.C. 485 et seq.), the Secretary shall at- 11 tempt to resolve any such inconsistency 12 with the Tribes, giving due weight to the 13 recommendations and expertise of the 14 Tribes. 15 (ii) PUBLICATION OF FINDINGS.—If, 16 after an attempt to resolve an inconsist- 17 ency under clause (i), the Secretary does 18 not adopt in whole or in part a rec- 19 ommendation of the Tribes under subpara- 20 graph (B), the Secretary shall issue each 21 of the following findings, including a state- 22 ment of the basis for each of the findings: 23 (I) A finding that adoption of the 24 recommendation is inconsistent with 25 VerDate Sep 11 2014 22:10 Oct 23, 2019 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1751.RS S1751 kjohnson on DSK79L0C42 with BILLS 12 •S 1751 RS the requirements of the Reclamation 1 Project Act of 1939 (43 U.S.C. 485 et 2 seq.). 3 (II) A finding that the conditions 4 selected by the Secretary to be con- 5 tained in the lease of power privilege 6 under subparagraph (A) comply with 7 the requirements of clauses (i) and 8 (ii) of that subparagraph. 9 (2) ANNUAL CHARGES PAYABLE BY LI- 10 CENSEE.— 11 (A) IN GENERAL.—Subject to subpara- 12 graph (B), any lease of power privilege issued 13 by the Secretary for a project under subsection 14 (b) shall contain conditions that require the les- 15 see of the project to make direct payments to 16 the Tribes through reasonable annual charges 17 in an amount that recompenses the Tribes for 18 any adverse economic effect of the project iden- 19 tified in a study performed pursuant to the 20 study plan agreement for the project. 21 (B) AGREEMENT.— 22 (i) IN GENERAL.—The amount of the 23 annual charges described in subparagraph 24 (A) shall be established through agreement 25 VerDate Sep 11 2014 22:10 Oct 23, 2019 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1751.RS S1751 kjohnson on DSK79L0C42 with BILLS 13 •S 1751 RS between the proposed lessee and the 1 Tribes. 2 (ii) CONDITION.—The agreement 3 under clause (i), including any modifica- 4 tion of the agreement, shall be deemed to 5 be a condition to the lease of power privi- 6 lege issued by the Secretary for a project 7 under subsection (b). 8 (C) DISPUTE RESOLUTION.— 9 (i) IN GENERAL.—If the proposed les- 10 see and the Tribes cannot agree to the 11 terms of an agreement under subpara- 12 graph (B)(i), the proposed lessee and the 13 Tribes shall submit notice of the dispute to 14 the Director. 15 (ii) RESOLUTION.—The Director shall 16 resolve the dispute described in clause (i) 17 not later than 180 days after the date on 18 which the Director receives [Text truncated for display. 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