Hydropower Clean Energy Future Act

I 118TH CONGRESS 1ST SESSION H. R. 4045 To modernize the hydropower licensing process and to promote next- generation hydropower projects, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JUNE 12, 2023 Mrs. RODGERS of Washington introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Com- mittee on Oversight and Accountability, for a period to be subsequently determined by the Speaker, in each case for consideration of such provi- sions as fall within the jurisdiction of the committee concerned A BILL To modernize the hydropower licensing process and to pro- mote next-generation 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 ‘‘Hydropower Clean En- 4 ergy Future Act’’. 5 VerDate Sep 11 2014 23:49 Jul 12, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H4045.IH H4045 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •HR 4045 IH SEC. 2. CONFIRMING THAT HYDROPOWER IS AN ESSENTIAL 1 RENEWABLE RESOURCE. 2 (a) SENSE OF CONGRESS ON THE USE OF HYDRO- 3 POWER RENEWABLE RESOURCES.—It is the sense of Con- 4 gress that— 5 (1) hydropower is a renewable resource for pur- 6 poses of all Federal programs and is an essential 7 source of energy in the United States; and 8 (2) the United States should protect existing 9 hydropower resources and increase substantially the 10 capacity and generation of clean, renewable hydro- 11 power resources to address a changing climate and 12 improve environmental quality in the United States. 13 (b) MODIFYING DEFINITIONS OF RENEWABLE EN- 14 ERGY TO INCLUDE HYDROPOWER.— 15 (1) ENERGY POLICY ACT OF 2005.—Section 203 16 of the Energy Policy Act of 2005 (42 U.S.C. 15852) 17 is amended— 18 (A) in subsection (a), by amending para- 19 graphs (1) through (3) to read as follows: 20 ‘‘(1) Not less than 20 percent in fiscal years 21 2024 through 2025. 22 ‘‘(2) Not less than 23 percent in fiscal years 23 2026 through 2027. 24 ‘‘(3) Not less than 25 percent in fiscal year 25 2028 and each fiscal year thereafter.’’; and 26 VerDate Sep 11 2014 23:49 Jul 12, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H4045.IH H4045 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •HR 4045 IH (B) in subsection (b), by striking para- 1 graph (2) and inserting the following: 2 ‘‘(2) RENEWABLE ENERGY.—The term ‘renew- 3 able energy’ means energy produced from solar, 4 wind, biomass, landfill gas, ocean (including tidal, 5 wave, current, and thermal), geothermal, municipal 6 solid waste, or hydropower.’’. 7 (2) OTHER FEDERAL REGULATIONS, ORDERS, 8 AND POLICIES.—Not later than 180 days after the 9 date of enactment of this Act, each Federal depart- 10 ment and agency shall submit to the Committee on 11 Energy and Natural Resources of the Senate and 12 the Committee on Energy and Commerce of the 13 House of Representatives a report demonstrating 14 that the department or agency has amended any ap- 15 plicable regulation, order, or other policy of the de- 16 partment or agency related to renewable energy to 17 ensure treatment of hydropower by the Federal Gov- 18 ernment consistent with the amendments made by 19 paragraph (1). 20 (c) LICENSES FOR CONSTRUCTION.—Section 4(e) of 21 the Federal Power Act (16 U.S.C. 797(e)) is amended, 22 in the first sentence, by inserting ‘‘to mitigate the effects 23 of the applicable project on such reservation, so as to pro- 24 vide’’ after ‘‘deem necessary’’ in the first proviso. 25 VerDate Sep 11 2014 23:49 Jul 12, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H4045.IH H4045 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •HR 4045 IH (d) OPERATION OF NAVIGATION FACILITIES.—Sec- 1 tion 18 of the Federal Power Act (16 U.S.C. 811) is 2 amended by adding before the period at the end of the 3 first sentence ‘‘to mitigate effects of the applicable 4 project’’. 5 SEC. 3. PROTECTING AND PROMOTING SMALL AND NEXT- 6 GENERATION HYDROPOWER PROJECTS. 7 (a) EXEMPTIONS FROM LICENSING REQUIREMENTS 8 FOR CERTAIN SMALL HYDROELECTRIC POWER 9 PROJECTS.—Section 405 of the Public Utility Regulatory 10 Policies Act of 1978 (16 U.S.C. 2705) is amended by 11 striking subsection (d) and inserting the following: 12 ‘‘(d) EXEMPTIONS FROM LICENSING IN CERTAIN 13 CASES.— 14 ‘‘(1) IN GENERAL.—Subject to paragraphs (2) 15 and (3), the Commission may in its discretion (by 16 rule or order), upon application and on a case-by- 17 case basis or on the basis of classes or categories of 18 projects, grant an exemption in whole or in part 19 from the requirements (including the licensing re- 20 quirements) of part I of the Federal Power Act to 21 any small hydroelectric power project— 22 ‘‘(A) having a proposed installed capacity 23 of 40 megawatts or less; or 24 VerDate Sep 11 2014 23:49 Jul 12, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H4045.IH H4045 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •HR 4045 IH ‘‘(B) for which a license was issued under 1 part I of the Federal Power Act and the li- 2 censee applies for an exemption under this sub- 3 section, if— 4 ‘‘(i) the license was issued after the 5 date of enactment of the Electric Con- 6 sumers Protection Act of 1986; 7 ‘‘(ii) the Commission determines, 8 based on information available to the Com- 9 mission, that continued operation of the 10 project is not likely to jeopardize the con- 11 tinued existence of any species listed as a 12 threatened species or an endangered spe- 13 cies under the Endangered Species Act of 14 1973; 15 ‘‘(iii) the Commission determines, 16 based on information available to the Com- 17 mission, that continued operation of the 18 project is not likely to result in the de- 19 struction or adverse modification of an 20 area designated as critical habitat for any 21 species listed as a threatened species or an 22 endangered species under the Endangered 23 Species Act of 1973; and 24 VerDate Sep 11 2014 23:49 Jul 12, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H4045.IH H4045 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •HR 4045 IH ‘‘(iv) the project has an installed ca- 1 pacity of 40 megawatts or less. 2 ‘‘(2) REQUIREMENTS.—An exemption granted 3 under paragraph (1) shall be subject to the same 4 limitations (to ensure protection for fish and wildlife 5 as well as other environmental concerns) as those 6 which are set forth in subsections (c) and (d) of sec- 7 tion 30 of the Federal Power Act with respect to de- 8 terminations made and exemptions granted under 9 subsection (b) of such section 30 and subsections (c) 10 and (d) of such section 30 shall apply with respect 11 to actions taken and exemptions granted under this 12 subsection. 13 ‘‘(3) EFFECTS.— 14 ‘‘(A) IN GENERAL.—Except as provided in 15 subparagraph (B), the granting of an exemp- 16 tion to a project under this subsection shall in 17 no case have the effect of waiving or limiting 18 the application (to such project) of the second 19 sentence of subsection (b) of this section. 20 ‘‘(B) ENVIRONMENTAL REVIEW.—The 21 Commission granting an exemption under para- 22 graph (1) may not be considered a major Fed- 23 eral action under section 102(2)(C) of the Na- 24 tional Environmental Policy Act of 1969. 25 VerDate Sep 11 2014 23:49 Jul 12, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H4045.IH H4045 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •HR 4045 IH ‘‘(4) EXEMPTION PROCESS.—The Commission 1 shall make a determination with respect to any ap- 2 plication for an exemption under paragraph (1)(B) 3 not later than 90 days after submission of such ap- 4 plication, which period shall include notice and op- 5 portunity for public comment. Any exemption grant- 6 ed under paragraph (1)(B) shall become effective 7 upon the expiration of the applicable existing li- 8 cense.’’. 9 (b) EXPEDITED LICENSING OF NEXT-GENERATION 10 HYDROPOWER.—Part I of the Federal Power Act (16 11 U.S.C. 792 et seq.) is amended by adding at the end the 12 following: 13 ‘‘SEC. 37. EXPEDITED LICENSING OF NEXT-GENERATION 14 HYDROPOWER PROJECTS. 15 ‘‘(a) IN GENERAL.—The Commission shall issue li- 16 censes for all next-generation hydropower projects in ac- 17 cordance with this section. 18 ‘‘(b) DEFINITIONS.—In this section: 19 ‘‘(1) EMERGING HYDROPOWER TECHNOLOGY 20 PROJECT.—The term ‘emerging hydropower tech- 21 nology project’ means a project that the Commission 22 determines— 23 VerDate Sep 11 2014 23:49 Jul 12, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H4045.IH H4045 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •HR 4045 IH ‘‘(A) will produce electricity from a gener- 1 ator driven by a turbine that converts the po- 2 tential energy of falling or flowing water; 3 ‘‘(B) will utilize turbine or generating tech- 4 nology, an energy storage method, or a measure 5 to protect, mitigate, or enhance environmental 6 resources, that is not in widespread, utility- 7 scale use in the United States as of the date of 8 enactment of this section; 9 ‘‘(C) will not be, based on information 10 available to the Commission, likely to jeopardize 11 the continued existence of any species listed as 12 a threatened species or an endangered species 13 under the Endangered Species Act of 1973; and 14 ‘‘(D) will not be, based on information 15 available to the Commission, likely to result in 16 the destruction or adverse modification of an 17 area designated as critical habitat for any spe- 18 cies listed as a threatened species or an endan- 19 gered species under the Endangered Species 20 Act of 1973. 21 ‘‘(2) NEXT-GENERATION HYDROPOWER 22 PROJECT.—The term ‘next-generation hydropower 23 project’ means a project that— 24 ‘‘(A) may be licensed under this Act; 25 VerDate Sep 11 2014 23:49 Jul 12, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H4045.IH H4045 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •HR 4045 IH ‘‘(B) is not— 1 ‘‘(i) a qualifying conduit hydropower 2 facility under section 30; or 3 ‘‘(ii) exempted from licensing under— 4 ‘‘(I) section 30; or 5 ‘‘(II) section 405 of the Public 6 Utility Regulatory Policies Act of 7 1978; and 8 ‘‘(C) is— 9 ‘‘(i) an emerging hydropower tech- 10 nology project; 11 ‘‘(ii) a qualifying facility, as defined in 12 section 34; 13 ‘‘(iii) a qualifying closed-loop pumped 14 storage project, as defined in section 35; 15 ‘‘(iv) a marine or hydrokinetic project, 16 including a project that utilizes a wave 17 technology, tidal technology, or in-river 18 technology; or 19 ‘‘(v) a hydropower facility within an 20 irrigation, water supply, industrial, agricul- 21 tural, or other open or closed water con- 22 duit system. 23 ‘‘(c) EXPEDITED LICENSING PROCESS.— 24 ‘‘(1) NOTIFICATION OF INTENT.— 25 VerDate Sep 11 2014 23:49 Jul 12, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H4045.IH H4045 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •HR 4045 IH ‘‘(A) FILING OF NOTIFICATION.—An appli- 1 cant for any next-generation hydropower project 2 shall commence the licensing process by filing a 3 notification of intent with the Commission. 4 ‘‘(B) DEADLINE FOR FILING.—Notwith- 5 standing section 15(b)(1), an applicant for a 6 next-generation hydropower project shall file a 7 notification of intent at least 2 years before the 8 expiration of the existing license, if applicable. 9 ‘‘(2) FILING OF APPLICATION.— 10 ‘‘(A) GENERAL DEADLINE.—An applicant 11 for a next-generation hydropower project shall 12 submit to the Commission an application not 13 later than 1 year after filing the notification of 14 intent under paragraph (1). 15 ‘‘(B) EXISTING LICENCEE DEADLINE.— 16 Notwithstanding section 15(c)(1), an applica- 17 tion for any next-generation hydropower project 18 shall be filed with the Commission at least 1 19 year before the expiration of the term of the ex- 20 isting license, if applicable. 21 ‘‘(3) DEADLINE FOR ISSUANCE.—The Commis- 22 sion shall take final action on a license for a next- 23 generation hydropower project under this section not 24 later than 2 years after the applicant notifies the 25 VerDate Sep 11 2014 23:49 Jul 12, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H4045.IH H4045 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •HR 4045 IH Commission of its intent to file an application for a 1 license, as provided under paragraph (1). 2 ‘‘(d) REQUIREMENTS.—In issuing a license under 3 this section the Commission and all resource agencies with 4 regulatory responsibilities in the licensing process shall— 5 ‘‘(1) maximize reliance on existing studies and 6 information and require any person or agency re- 7 questing a new study or information to demonstrate 8 that collection of any new data or preparation of any 9 new study will not jeopardize the Commission’s abil- 10 ity to meet the licensing deadline under subsection 11 (c)(3); 12 ‘‘(2) consider whether obligations under the Na- 13 tional Environmental Protection Act of 1969 may be 14 met through preparation of an environmental assess- 15 ment or supplementing a previously prepared envi- 16 ronmental assessment or environmental impact 17 statement; 18 ‘‘(3) eliminate any nonessential meetings, re- 19 ports, and paperwork, including interim study re- 20 ports and a draft license application or similar docu- 21 ment, without compromising effective consultation 22 with, and participation of, Federal and State re- 23 source agencies, Indian tribe, and the public; and 24 VerDate Sep 11 2014 23:49 Jul 12, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H4045.IH H4045 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •HR 4045 IH ‘‘(4) consider existing project works and other 1 infrastructure to be included in the environmental 2 baseline. 3 ‘‘(e) RULE.—Not later than 90 days after the date 4 of enactment of this section, and after consultation with 5 the task force described in subsection (f), which 90 days 6 shall include public notice and opportunity for comment, 7 the Commission shall issue a rule implementing this sec- 8 tion. Such rule shall include a process, not to exceed 60 9 days, for the Commission to determine on a case-by-case 10 basis whether a proposed or existing project qualifies as 11 a next-generation hydropower project prior to the initi- 12 ation of the licensing or relicensing process. 13 ‘‘(f) TASK FORCE.—The Commission shall convene a 14 task force, with appropriate Federal and State agencies, 15 Indian tribes, and licensees under this part represented, 16 to coordinate the regulatory processes associated with the 17 authorizations required to license next-generation hydro- 18 power projects pursuant to this section.’’. 19 SEC. 4. IDENTIFYING AND REMOVING MARKET BARRIERS 2 [Text truncated for display. Full text available on Congress.gov.]