[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 1246 Introduced in Senate (IS)]
<DOC>
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 multiple Bureau of Reclamation
reservoirs.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Pacific Northwest Pumped Storage
Hydropower Development Act of 2021''.
SEC. 2. AUTHORITY FOR PUMPED STORAGE HYDROPOWER DEVELOPMENT USING
MULTIPLE BUREAU OF RECLAMATION RESERVOIRS.
Section 9(c) of the Reclamation Project Act of 1939 (43 U.S.C.
485h(c)) is amended--
(1) in paragraph (1), in the fourth sentence, by striking
``, including small conduit hydropower development'' and
inserting ``and reserve to the Secretary the exclusive
authority to develop small conduit hydropower using Bureau of
Reclamation facilities and pumped storage hydropower
exclusively using Bureau of Reclamation reservoirs''; and
(2) in paragraph (8), by striking ``has been filed with the
Federal Energy Regulatory Commission as of the date of the
enactment of the Bureau of Reclamation Small Conduit Hydropower
Development and Rural Jobs Act'' and inserting ``was filed with
the Federal Energy Regulatory Commission before August 9, 2013,
and is still pending''.
SEC. 3. LIMITATIONS ON ISSUANCE OF CERTAIN LEASES OF POWER PRIVILEGE.
(a) Definitions.--In this section:
(1) Commission.--The term ``Commission'' means the Federal
Energy Regulatory Commission.
(2) Director.--The term ``Director'' means the Director of
the Office of Hearings and Appeals.
(3) Office of hearings and appeals.--The term ``Office of
Hearings and Appeals'' means the Office of Hearings and Appeals
of the Department of the Interior.
(4) Party.--The term ``party'', with respect to a study
plan agreement, means each of the following parties to the
study plan agreement:
(A) The proposed lessee.
(B) The Tribes.
(5) Project.--The term ``project'' means a proposed pumped
storage facility that--
(A) would use multiple Bureau of Reclamation
reservoirs; and
(B) as of June 1, 2017, was subject to a
preliminary permit issued by the Commission pursuant to
section 4(f) of the Federal Power Act (16 U.S.C.
797(f)).
(6) Proposed lessee.--The term ``proposed lessee'' means
the proposed lessee of a project.
(7) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(8) Study plan.--The term ``study plan'' means the plan
described in subsection (d)(1).
(9) Study plan agreement.--The term ``study plan
agreement'' means an agreement entered into under subsection
(b)(1) and described in subsection (c).
(10) Tribes.--The term ``Tribes'' means--
(A) the Confederated Tribes of the Colville
Reservation; and
(B) the Spokane Tribe of Indians of the Spokane
Reservation.
(b) Requirement for Issuance of Leases of Power Privilege.--The
Secretary shall not issue a lease of power privilege pursuant to
section 9(c)(1) of the Reclamation Project Act of 1939 (43 U.S.C.
485h(c)(1)) (as amended by section 2) for a project unless--
(1) the proposed lessee and the Tribes have entered into a
study plan agreement; or
(2) the Secretary or the Director, as applicable, makes a
final determination for--
(A) a study plan agreement under subsection (c)(2);
or
(B) a study plan under subsection (d).
(c) Study Plan Agreement Requirements.--
(1) In general.--A study plan agreement shall--
(A) establish the deadlines for the proposed lessee
to formally respond in writing to comments and study
requests about the project previously submitted to the
Commission;
(B) allow for the parties to submit additional
comments and study requests if any aspect of the
project, as proposed, differs from an aspect of the
project, as described in a preapplication document
provided to the Commission;
(C) except as expressly agreed to by the parties or
as provided in paragraph (2) or subsection (d), require
that the proposed lessee conduct each study described
in--
(i) a study request about the project
previously submitted to the Commission; or
(ii) any additional study request submitted
in accordance with the study plan agreement;
(D) require that the proposed lessee study any
potential adverse economic effects of the project on
the Tribes, including effects on--
(i) annual payments to the Confederated
Tribes of the Colville Reservation under
section 5(b) of the Confederated Tribes of the
Colville Reservation Grand Coulee Dam
Settlement Act (Public Law 103-436; 108 Stat.
4579); and
(ii) annual payments to the Spokane Tribe
of Indians of the Spokane Reservation
authorized after the date of enactment of this
Act, the amount of which derives from the
annual payments described in clause (i);
(E) establish a protocol for communication and
consultation between the parties;
(F) provide mechanisms for resolving disputes
between the parties regarding implementation and
enforcement of the study plan agreement; and
(G) contain other provisions determined to be
appropriate by the parties.
(2) Disputes.--
(A) In general.--If the parties cannot agree to the
terms of a study plan agreement or implementation of
those terms, the parties shall submit to the Director,
for final determination on the terms or implementation
of the study plan agreement, notice of the dispute,
consistent with paragraph (1)(F), to the extent the
parties have agreed to a study plan agreement.
(B) Inclusion.--A dispute covered by subparagraph
(A) may include the view of a proposed lessee that an
additional study request submitted in accordance with
paragraph (1)(B) is not reasonably calculated to assist
the Secretary in evaluating the potential impacts of
the project.
(C) Timing.--The Director shall issue a
determination regarding a dispute under subparagraph
(A) not later than 120 days after the date on which the
Director receives notice of the dispute under that
subparagraph.
(d) Study Plan.--
(1) In general.--The proposed lessee shall submit to the
Secretary for approval a study plan that details the proposed
methodology for performing each of the studies--
(A) identified in the study plan agreement of the
proposed lessee; or
(B) determined by the Director in a final
determination regarding a dispute under subsection
(c)(2).
(2) Initial determination.--Not later than 60 days after
the date on which the Secretary receives the study plan under
paragraph (1), the Secretary shall make an initial
determination that--
(A) approves the study plan;
(B) rejects the study plan on the grounds that the
study plan--
(i) lacks sufficient detail on a proposed
methodology for a study identified in the study
plan agreement; or
(ii) is inconsistent with the study plan
agreement; or
(C) imposes additional study plan requirements that
the Secretary determines are necessary to adequately
define the potential effects of the project on--
(i) the exercise of the paramount hunting,
fishing, and boating rights of the Tribes
reserved pursuant to the Act of June 29, 1940
(54 Stat. 703, chapter 460; 16 U.S.C. 835d et
seq.);
(ii) the annual payments described in
clauses (i) and (ii) of subsection (c)(1)(D);
(iii) the Columbia Basin project (as
defined in section 1 of the Act of May 27, 1937
(50 Stat. 208, chapter 269; 57 Stat. 14,
chapter 14; 16 U.S.C. 835));
(iv) historic properties and cultural or
spiritually significant resources; and
(v) the environment.
(3) Objections.--
(A) In general.--Not later than 30 days after the
date on which the Secretary makes an initial
determination under paragraph (2), the Tribes or the
proposed lessee may submit to the Director an objection
to the initial determination.
(B) Final determination.--Not later than 120 days
after the date on which the Director receives an
objection under subparagraph (A), the Director shall--
(i) hold a hearing on the record regarding
the objection; and
(ii) make a final determination that
establishes the study plan, including a
description of studies the proposed lessee is
required to perform.
(4) No objections.--If no objections are submitted by the
deadline described in paragraph (3)(A), the initial
determination of the Secretary under paragraph (2) shall be
final.
(e) Conditions of Lease.--
(1) Consistency with rights of tribes; protection,
mitigation, and enhancement of fish and wildlife.--
(A) In general.--Any lease of power privilege
issued by the Secretary for a project under subsection
(b) shall contain conditions--
(i) to ensure that the project is
consistent with, and will not interfere with,
the exercise of the paramount hunting, fishing,
and boating rights of the Tribes reserved
pursuant to the Act of June 29, 1940 (54 Stat.
703, chapter 460; 16 U.S.C. 835d et seq.); and
(ii) to adequately and equitably protect,
mitigate damages to, and enhance fish and
wildlife, including related spawning grounds
and habitat, affected by the development,
operation, and management of the project.
(B) Recommendations of the tribes.--The conditions
required under subparagraph (A) shall be based on joint
recommendations of the Tribes.
(C) Resolving inconsistencies.--
(i) In general.--If the Secretary
determines that any recommendation of the
Tribes under subparagraph (B) is not reasonably
calculated to ensure the project is consistent
with subparagraph (A) or is inconsistent with
the requirements of the Reclamation Project Act
of 1939 (43 U.S.C. 485 et seq.), the Secretary
shall attempt to resolve any such inconsistency
with the Tribes, giving due weight to the
recommendations and expertise of the Tribes.
(ii) Publication of findings.--If, after an
attempt to resolve an inconsistency under
clause (i), the Secretary does not adopt in
whole or in part a recommendation of the Tribes
under subparagraph (B), the Secretary shall
issue each of the following findings, including
a statement of the basis for each of the
findings:
(I) A finding that adoption of the
recommendation is inconsistent with the
requirements of the Reclamation Project
Act of 1939 (43 U.S.C. 485 et seq.).
(II) A finding that the conditions
selected by the Secretary to be
contained in the lease of power
privilege under subparagraph (A) comply
with the requirements of clauses (i)
and (ii) of that subparagraph.
(2) Annual charges payable by licensee.--
(A) In general.--Subject to subparagraph (B), any
lease of power privilege issued by the Secretary for a
project under subsection (b) shall contain conditions
that require the lessee of the project to make direct
payments to the Tribes through reasonable annual
charges in an amount that recompenses the Tribes for
any adverse economic effect of the project identified
in a study performed pursuant to the study plan
agreement for the project.
(B) Agreement.--
(i) In general.--The amount of the annual
charges described in subparagraph (A) shall be
established through agreement between the
proposed lessee and the Tribes.
(ii) Condition.--The agreement under clause
(i), including any modification of the
agreement, shall be deemed to be a condition to
the lease of power privilege issued by the
Secretary for a project under subsection (b).
(C) Dispute resolution.--
(i) In general.--If the proposed lessee and
the Tribes cannot agree to the terms of an
agreement under subparagraph (B)(i), the
proposed lessee and the Tribes shall submit
notice of the dispute to the Director.
(ii) Resolution.--The Director shall
resolve the dispute described in clause (i) not
later than 180 days after the date on which the
Director receives notice of the dispute under
that clause.
(3) Additional conditions.--The Secretary may include in
any lease of power privilege issued by the Secretary for a
project under subsection (b) other conditions determined
appropriate by the Secretary, on the condition that the
conditions shall be consistent with the Reclamation Project Act
of 1939 (43 U.S.C. 485 et seq.).
(4) Consultation.--In establishing conditions under this
subsection, the Secretary shall consult with the Tribes.
(f) Deadlines.--The Secretary or any officer of the Office of
Hearing and Appeals before whom a proceeding is pending under this
section may extend any deadline or enlarge any timeframe described in
this section--
(1) at the discretion of the Secretary or the officer; or
(2) on a showing of good cause by any party.
(g) Judicial Review.--Any final action of the Secretary or the
Director made pursuant to this section shall be subject to judicial
review in accordance with chapter 7 of title 5, United States Code.
(h) Effect on Other Projects.--Nothing in this section establishes
any precedent or is binding on any Bureau of Reclamation lease of power
privilege, other than for a project.
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