Community and Hydropower Improvement Act

II 118TH CONGRESS 1ST SESSION S. 1521 To amend the Federal Power Act to modernize and improve the licensing of non-Federal hydropower projects, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 10, 2023 Mr. DAINES (for himself and Ms. CANTWELL) introduced the following bill; which was read twice and referred to the Committee on Energy and Nat- ural Resources A BILL To amend the Federal Power Act to modernize and improve the licensing of non-Federal hydropower projects, and for other purposes. 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 ‘‘Community and Hy- 4 dropower Improvement Act’’. 5 SEC. 2. DEFINITIONS. 6 Section 3 of the Federal Power Act (16 U.S.C. 796) 7 is amended— 8 (1) in paragraph (2)— 9 VerDate Sep 11 2014 21:35 May 17, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1521.IS S1521 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1521 IS (A) by striking ‘‘tribal lands embraced 1 within Indian reservations,’’; and 2 (B) by striking ‘‘also’’ and inserting ‘‘land 3 and interests in land held in legal title by the 4 United States in trust for the benefit of an In- 5 dian Tribe; and’’; 6 (2) in paragraph (5), by inserting ‘‘Indian 7 Tribe,’’ after ‘‘State,’’; and 8 (3) by adding at the end the following: 9 ‘‘(30) INDIAN TRIBE.—The term ‘Indian Tribe’ 10 means the recognized governing body of any Indian 11 or Alaska Native tribe, band, nation, pueblo, village, 12 community, component band, or component reserva- 13 tion, individually identified (including parentheti- 14 cally) in the list published annually pursuant to sec- 15 tion 104 of the Federally Recognized Indian Tribe 16 List Act of 1994 (25 U.S.C. 5131). 17 ‘‘(31) PROJECT EFFECTS.—The term ‘project 18 effects’ has the meaning given the term in para- 19 graph (1) of section 2403(c) of the Energy Policy 20 Act of 1992 (16 U.S.C. 797d(c)).’’. 21 SEC. 3. GENERAL POWERS OF THE FEDERAL ENERGY REG- 22 ULATORY COMMISSION. 23 (a) TECHNICAL CORRECTION TO THE ENERGY POL- 24 ICY ACT OF 2005 AND FEDERAL POWER ACT.— 25 VerDate Sep 11 2014 21:35 May 17, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1521.IS S1521 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1521 IS (1) ENERGY POLICY ACT OF 2005.— 1 (A) IN GENERAL.—Section 241(a) of the 2 Energy Policy Act of 2005 (Public Law 109– 3 58; 119 Stat. 674) is amended by striking 4 ‘‘after ‘adequate protection and utilization of 5 such reservation.’ at the end of the first pro- 6 viso’’ and inserting ‘‘after ‘adequate protection 7 and utilization of such reservation’ at the end 8 of the first proviso a period and’’. 9 (B) EXECUTION.—Subparagraph (A) and 10 the amendments made by that subparagraph 11 shall take effect as if included in the Energy 12 Policy Act of 2005 (42 U.S.C. 15801 et seq.), 13 and section 241(a) of that Act (Public Law 14 1058; 119 Stat. 674) and the amendments 15 made by that section shall be executed as if the 16 amendment made by subparagraph (A) had 17 been included in that Act. 18 (2) FEDERAL POWER ACT.—Section 4(e) of the 19 Federal Power Act (16 U.S.C. 797(e)) is amended 20 by striking the period after ‘‘Federal Energy Regu- 21 latory Commission’’. 22 (b) ISSUANCE OF LICENSES.—Section 4(e) of the 23 Federal Power Act (16 U.S.C. 797(e)) is amended— 24 VerDate Sep 11 2014 21:35 May 17, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1521.IS S1521 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1521 IS (1) by striking the colon each place it appears 1 and inserting a period; 2 (2) in the fourth proviso, by striking ‘‘And pro- 3 vided further, That upon’’ and inserting the fol- 4 lowing: 5 ‘‘(5) NOTICE; CONSIDERATIONS.—On’’; 6 (3) in the third proviso, by striking ‘‘Provided 7 further, That in case’’ and inserting the following: 8 ‘‘(4) PUBLIC PURPOSES.—In case’’; 9 (4) in the second proviso, by striking ‘‘Provided 10 further, That no license’’ and inserting the following: 11 ‘‘(3) NAVIGABLE WATERS.—No license’’; 12 (5) in the first proviso, by striking ‘‘Provided, 13 That licenses’’ and inserting the following: 14 ‘‘(2) RESERVATION.— 15 ‘‘(A) IN GENERAL.—Licenses’’; 16 (6) in the first sentence, by striking ‘‘(e) To 17 issue licenses’’ and inserting the following: 18 ‘‘(e) ISSUANCE OF LICENSES.— 19 ‘‘(1) IN GENERAL.—To issue licenses’’; 20 (7) in paragraph (1) (as so designated), by 21 striking ‘‘, or to any State’’ and inserting ‘‘, or to 22 any State, Indian Tribe,’’; 23 (8) in paragraph (2)(A) (as so designated)— 24 VerDate Sep 11 2014 21:35 May 17, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1521.IS S1521 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1521 IS (A) by striking the fourth sentence and in- 1 serting the following: 2 ‘‘(iii) PROCEDURES.—Not later than 3 180 days after the date of enactment of 4 the Community and Hydropwer Improve- 5 ment Act, the Secretary of the Interior, 6 Secretary of the Army, the Secretary of 7 Commerce, and the Secretary of Agri- 8 culture shall jointly update, by rule, after 9 consultation with the Commission and pro- 10 viding notice and an opportunity for public 11 comment, the procedures for an expedited 12 trial-type hearing under this section and 13 section 18, including the opportunity to 14 undertake discovery and cross-examine wit- 15 nesses, providing— 16 ‘‘(I) a forum for conditions sub- 17 mitted under section 33(a) to obtain a 18 hearing; 19 ‘‘(II) a requirement that the 20 party raising a disputed issue, or the 21 proponent of an alternative, bears the 22 burden of proof by a preponderance of 23 the evidence; and 24 VerDate Sep 11 2014 21:35 May 17, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1521.IS S1521 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1521 IS ‘‘(III) and opportunities for all 1 parties to a trial-type hearing to par- 2 ticipate in settlement negotiations be- 3 fore and after the hearing.’’; 4 (B) in the third sentence— 5 (i) by striking ‘‘by the relevant re- 6 source’’ and inserting ‘‘by the relevant’’; 7 and 8 (ii) by striking ‘‘All disputed’’ and in- 9 serting the following: 10 ‘‘(ii) REQUIREMENT.—All disputed’’; 11 (C) in the second sentence— 12 (i) by inserting ‘‘, including alter- 13 native conditions submitted under section 14 33(a), as applicable’’ after ‘‘on any dis- 15 puted issues of material fact with respect 16 to such conditions’’; and 17 (ii) by striking ‘‘The license appli- 18 cant’’ and inserting the following: 19 ‘‘(B) HEARING.— 20 ‘‘(i) IN GENERAL.—The license appli- 21 cant’’; and 22 (D) in the first sentence, by striking ‘‘shall 23 deem necessary for the adequate protection and 24 utilization of such reservation’’ and inserting 25 VerDate Sep 11 2014 21:35 May 17, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1521.IS S1521 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1521 IS the following: ‘‘or the applicable Indian Tribe, 1 as provided in section 37, shall deem— 2 ‘‘(i) necessary for the adequate pro- 3 tection and utilization of such reservation; 4 and 5 ‘‘(ii) reasonably related to project ef- 6 fects on— 7 ‘‘(I) the reservation; and 8 ‘‘(II) the utilization of the res- 9 ervation’’; and 10 (9) in paragraph (5) (as designated by para- 11 graph (2)), by inserting ‘‘addressing the effects of 12 hydrologic alterations that may occur over the li- 13 cense term,’’ after ‘‘the protection of recreational op- 14 portunities,’’. 15 (c) PRELIMINARY PERMITS; NOTICE OF APPLICA- 16 TION.—Section 4(f) of the Federal Power Act (16 U.S.C. 17 797(f)) is amended, in the proviso, by inserting ‘‘, Indian 18 Tribe,’’ after ‘‘in writing to any State’’. 19 SEC. 4. APPROACH TO ENVIRONMENTAL REVIEW. 20 (a) IN GENERAL.—Section 2403 of the Energy Policy 21 Act of 1992 (16 U.S.C. 797d) is amended— 22 (1) in the section heading, by striking ‘‘THIRD 23 PARTY CONTRACTING BY FERC’’ and inserting 24 ‘‘APPROACH TO ENVIRONMENTAL REVIEW’’; 25 VerDate Sep 11 2014 21:35 May 17, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1521.IS S1521 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1521 IS (2) in subsection (a)— 1 (A) in the subsection heading, by striking 2 ‘‘ENVIRONMENTAL IMPACT STATEMENTS’’ and 3 inserting ‘‘THIRD-PARTY CONTRACTING BY THE 4 FEDERAL ENERGY REGULATORY COMMIS- 5 SION’’; and 6 (B) in the first sentence, by striking 7 ‘‘Where the Federal’’ and inserting the fol- 8 lowing: 9 ‘‘(1) ENVIRONMENTAL IMPACT STATEMENTS.— 10 If the Federal’’; 11 (3) in subsection (c), by striking ‘‘This section’’ 12 and inserting ‘‘This subsection’’; 13 (4) by redesignating subsections (b) and (c) as 14 paragraphs (2) and (3), respectively, and indenting 15 appropriately; and 16 (5) by adding at the end the following: 17 ‘‘(b) COOPERATION WITH OTHER AGENCIES.— 18 ‘‘(1) IN GENERAL.—The Federal Energy Regu- 19 latory Commission shall request that any Federal, 20 State, or local agency or Indian Tribe with a respon- 21 sibility under the National Environmental Policy Act 22 of 1969 (42 U.S.C. 4321 et seq.) or comparable 23 State or Tribal law requirements with respect to the 24 licensing of a project cooperate in the preparation of 25 VerDate Sep 11 2014 21:35 May 17, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1521.IS S1521 kjohnson on DSK79L0C42PROD with BILLS 9 •S 1521 IS the environmental assessment or environmental im- 1 pact statement that will be a record basis for the de- 2 cisions of the applicable agency or Indian Tribe with 3 respect to the applicable application. 4 ‘‘(2) EFFECT.—Cooperation under paragraph 5 (1) shall not impair the right of a cooperating agen- 6 cy or Indian Tribe to participate as a party in a pro- 7 ceeding, subject to appropriate protections against 8 ex parte communications. 9 ‘‘(c) ENVIRONMENTAL EFFECTS.— 10 ‘‘(1) DEFINITIONS.—In this subsection: 11 ‘‘(A) NONRECURRING PAST EFFECT.—The 12 term ‘nonrecurring past effect’, with respect to 13 a project, means an environmental effect that— 14 ‘‘(i) may have been caused by— 15 ‘‘(I) the original construction or 16 development of the project; or 17 ‘‘(II) prior operations of the 18 project; but 19 ‘‘(ii) has no ongoing effect on environ- 20 mental resources. 21 ‘‘(B) ONGOING EFFECT.—The term ‘ongo- 22 ing effect’, with respect to a project, means a 23 material environmental effect that would not 24 occur or that would be different, but for the 25 VerDate Sep 11 2014 21:35 May 17, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1521.IS S1521 kjohnson on DSK79L0C42PROD with BILLS 10 •S 1521 IS continued existence, operation, or maintenance 1 of the project. 2 ‘‘(C) PROJECT.—The term ‘project’ has 3 the meaning given the term in section 3 of the 4 Federal Power Act (16 U.S.C. 796). 5 ‘‘(D) PROJECT EFFECTS.—The term 6 ‘project effects’ means the ongoing effects and 7 reasonably foreseeable effects of a project. 8 ‘‘(E) REASONABLY FORESEEABLE EF- 9 FECT.—The term ‘reasonably foreseeable ef- 10 fect’, with respect to a project, means a mate- 11 rial future environmental effect that— 12 ‘‘(i)(I) in the case of new construc- 13 tion, would not occur or would be different, 14 but for the construction, existence, oper- 15 ation, or maintenance of the project; or 16 ‘‘(II) in the case of no new construc- 17 tion, would not occur or would be different, 18 but for the existence, operation, or mainte- 19 nance of the project; and 20 ‘‘(ii) the Federal Energy Regulatory 21 Commission, another agency, or an Indian 22 Tribe determines, based on substantial evi- 23 dence— 24 VerDate Sep 11 2014 21:35 May 17, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1521.IS S1521 kjohnson on DSK79L0C42PROD with BILLS 11 •S 1521 IS ‘‘(I) is not speculative or improb- 1 able; and 2 ‘‘(II) is supported by monitoring, 3 modeling, or other scientific analysis 4 that is generally accepted in the sci- 5 entific community. 6 ‘‘(2) REQUIRED CONSIDERATIONS.—In carrying 7 out any authorities and responsibilities under part I 8 of the Federal Power Act (16 U.S.C. 792 et seq.) 9 with respect to resources affected by the project, the 10 Federal Energy Regulatory Commission, other agen- 11 cies, and Indian Tribes— 12 ‘‘(A) shall consider ongoing and reasonably 13 foreseeable effects of any existing dam and 14 other appurtenant project works included as 15 part of an application under part I of the Fed- 16 eral Power Act (16 U.S.C. 792 et seq.); 17 ‘‘(B) shall not consider nonrecurring past 18 effects of the dam and other appurtenant works 19 of the project; 20 ‘‘(C)(i) shall consider whether the project 21 has an adverse effect on any fish species; and 22 ‘‘(ii) if a determination is made in the af- 23 firmative under clause (i), shall consider pas- 24 sage and nonpassage strategies for reasonably 25 VerDate Sep 11 2014 21:35 May 17, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1521.IS S1521 kjohnson on DSK79L0C42PROD with BILLS 12 •S 1521 IS mitigating the adverse effect, as appropriate, 1 based on— 2 ‘‘(I) the extent and quality of habitat 3 upstream and downstream of the project, 4 including the feasibility of creating new 5 habitat or improving existing habitat 6 through habitat improvement projects; 7 ‘‘(II) off-site mitigation as provided in 8 section 39 of the Federal Power Act; 9 ‘‘(III) risks to the health of the fish 10 and the river system associated with both 11 passage and nonpassage strategies; 12 ‘‘(IV) costs of construction, operation, 13 and maintenance associated with both pas- 14 sage and nonpassage strategies; and 15 ‘‘(V) such other biological, oper- 16 ational, and economic factors determined 17 to be relevant by the Federal Energy Reg- 18 ulatory Commission, other agencies, and 19 Indian Tribes; 20 ‘‘(D) shall evaluate reasonably foreseeable 21 project effects on hydrologic patterns, other as- 22 pects of environmental quality and develop- 23 mental uses during the term of the license, 24 based on fieldwork investigations, literature re- 25 VerDate Sep 11 2014 21:35 May 17, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1521.IS S1521 kjohnson on DSK79L0C42PROD with BILLS 13 •S 1521 IS views, resource monitoring, technical models, or 1 other appropriate methodologies, consistent 2 with generally accepted scientific practices; 3 ‘‘(E) shall— 4 ‘‘(i) for purposes of deploying a model 5 under this subsection, encourage the pref- 6 erential use of open-sourced technical mod- 7 els, subject to the limitation that nothing 8 in this clause prohibits the use of a propri- 9 etary model or proprietary data; and 10 ‘‘(ii) for purposes of using or other- 11 wise relying on a model or data under this 12 subsection— 13 ‘‘(I) ensu [Text truncated for display. 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