Hydropower: Comparison of Selected Provisions in S. 2012, as Engrossed in the House, and S. 2012, as Engrossed in the Senate

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Hydropower: Comparison of Selected

Provisions in S. 2012, as Engrossed in the

House, and S. 2012, as Engrossed in the Senate

Kelsi Bracmort

Specialist in Agricultural Conservation and Natural Resources Policy

Updated June 13, 2016

Congressional Research Service

7-....

www.crs.gov

R44523

Hydropower: Comparison of the House and Senate Versions of S. 2012

Summary

In the 114th Congress, the House and Senate have passed energy legislation that addresses

hydropower. Both the North American Energy Security and Infrastructure Act of 2016 (S. 2012,

as engrossed in the House) and the Energy Policy Modernization Act of 2016 (S. 2012, as

engrossed in the Senate) contain provisions that would alter the regulation and development of

nonfederal hydropower, among other things. Both bills would establish a formal timeline for

nonfederal hydropower project regulation, would appoint the Federal Energy Regulatory

Commission (FERC) as the lead agency for nonfederal hydropower regulation, and would require

FERC—and other agencies—to maintain and make publicly available more robust hydropower

project data.

There are similarities and differences between the bills. Both bills generally seek to modify

regulation and development processes for nonfederal hydropower. However, the bills would

modify the regulatory process in different ways. For instance, the bills would handle the delay of

issuing a hydropower project license due to interagency disputes differently; the House version

would resolve such a delay in a federal circuit court, whereas the Senate version would resolve

such a delay by referring the issue to the chairman of the Council on Environmental Quality.

Further, each bill would address some aspects of hydropower that the other bill would not

address. For instance, the House version contains a provision that would address hydropower

development at existing, non-powered dams, whereas the Senate version does not contain a

similar provision. Lastly, both bills would modify the regulation process for specific projects

(e.g., extends the time period to start construction for a specific project).

Both the House and Senate versions contain hydropower provisions that could significantly

impact nonfederal hydropower regulation and could be viewed as controversial. For example,

both bills would make FERC the lead agency to coordinate the licensing process. This

designation could be viewed by some as lessening the contribution of other involved agencies

because these agencies would be required to abide by the schedule and decisions set by FERC. It

could also be viewed as making the license issuance process timelier because one agency would

have leadership authority for the process.

This report provides a comparison of the hydropower provisions in each bill and analysis for

certain provisions of the bills.

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Hydropower: Comparison of the House and Senate Versions of S. 2012

Contents

Introduction ..................................................................................................................................... 1

General Similarities and Differences Between the House and Senate Versions of S. 2012 ............ 1

S. 2012, as Engrossed in the House ................................................................................................. 2

Section 1201 .............................................................................................................................. 2

Section 1202 .............................................................................................................................. 3

Section 1203 .............................................................................................................................. 3

Section 1204 .............................................................................................................................. 3

Section 1205 .............................................................................................................................. 4

Section 1206 .............................................................................................................................. 4

Section 1207 .............................................................................................................................. 5

Section 1208 .............................................................................................................................. 5

Sections 8001-8006 ................................................................................................................... 6

S. 2012, as Engrossed in the Senate ................................................................................................ 6

Section 3001 .............................................................................................................................. 6

Section 3002 .............................................................................................................................. 9

Sections 3003, 3004, 10341, 10342, 10343, 10344, and 10346 .............................................. 10

Section 10345 .......................................................................................................................... 10

Section 10351 .......................................................................................................................... 10

Potential Issues .............................................................................................................................. 10

Tables

Table 1. House- and Senate-Engrossed Versions of S. 2012 for Specific

Hydropower Projects .................................................................................................................. 12

Contacts

Author Contact Information .......................................................................................................... 14

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Hydropower: Comparison of the House and Senate Versions of S. 2012

Introduction

For years, Congress has expressed interest in hydropower—the generation of electricity from

flowing water.1 In particular, it has focused on the regulation and development of nonfederal

hydropower, as well as on the environmental impacts of hydropower.2 Additionally, discussions

have taken place between Congress, the executive branch, and several stakeholder groups—

including industry associations, state governments, and tribes, among others—about various

issues with hydropower (e.g., the time to issue a license, resource agency conditions, whether

hydropower should be considered renewable). Recently, both chambers of the 114th Congress

passed energy bills containing hydropower provisions that could potentially transform

hydropower regulation and development to an extent not observed by the industry in some time

(e.g., by changing certain parts of the licensing process).

This report analyzes pertinent components of the hydropower provisions in the North American

Energy Security and Infrastructure Act of 2016 (S. 2012, as engrossed in the House; referred to

herein as the House version) and the Energy Policy Modernization Act of 2016 (S. 2012, as

engrossed in the Senate; referred to herein as the Senate version).3 The report briefly describes

some of the current statutory requirements related to certain provisions. It does not provide a

comprehensive examination of each hydropower provision, nor does it provide a comprehensive

examination of how proponents or opponents regard individual provisions.

General Similarities and Differences Between the

House and Senate Versions of S. 2012

Both the Senate and the House versions of S. 2012 generally seek to modify regulation and

development processes for nonfederal hydropower.4 The regulation and development provisions

in both bills broadly address three primary objectives: 1) establish a more explicit timeline for the

regulation of nonfederal hydropower projects (e.g., issuing a project license or an extension); 2)

appoint more definitively the Federal Energy Regulatory Commission (FERC) as the lead agency

for nonfederal hydropower facility regulation; and 3) require FERC—and other agencies—to

maintain and make publicly available more robust data on hydropower projects. Additionally,

both bills direct attention to modifying these processes for specific projects (e.g., extending the

time period to start project construction).

Differences in the bills involve how the nonfederal hydropower regulation and development

processes would be modified, which are described in later sections of this report, and the specific

projects referenced. For instance, Section 3001 of the Senate version would allow a construction

1 For more information on hydropower, including nonfederal hydropower opportunities and challenges, see CRS

Report R42579, Hydropower: Federal and Nonfederal Investment.

2 Nonfederal hydropower projects can be privately or publicly owned, may or may not be located at a federal site, and

are regulated by the Federal Energy Regulatory Commission (FERC).

3 The House passed H.R. 8, the North American Energy Security and Infrastructure Act of 2015, on December 3, 2015,

and the Senate passed S. 2012, the Energy Policy Modernization Act of 2016, on April 20, 2016. H.R. 8 was moved

into the House version of S. 2012; the hydropower provisions under Division A, Subtitle B are identical to H.R. 8. The

House version was passed by the House on May 25, 2016. This report does not discuss the marine hydrokinetic

provisions included in each bill.

4 For more information on nonfederal hydropower licensing and compliance, see FERC, Handbook for Hydroelectric

Project Licensing and 5 MW Exemptions from Licensing, April 2004, and FERC, Compliance Handbook, December

2015.

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start date to be extended for eight years for any project, whereas the House version does not

address the extension of a project construction start date. Further, the House version would

require licenses and preliminary extensions for pumped storage projects, whereas the Senate

version does not include such a requirement. The Senate version and the House version would

modify the regulation process for seven specific projects (see Table 1).

S. 2012, as Engrossed in the House

The House version of S. 2012 explicitly addresses hydropower in eight sections under Division A,

Subtitle B (Hydropower Regulatory Modernization) and in six sections under Division A, Title

VIII (Extensions of Time for Various Federal Energy Regulatory Commission Projects). The

majority of the sections under Subtitle B, Sections 1201 and 1203-1208, focus on hydropower

licensing, regulation, and development. One section under Subtitle B, Section 1202, centers on an

extended construction time period for a specific project. The six sections under Title VIII,

Sections 8001-8006, focus on the construction timeline for specific projects or stipulate certain

license criteria.

This portion of the report summarizes the contents of each section of the House version of S.

2012 that addresses hydropower. Where applicable, it also discusses comparable provisions of the

Senate version of S. 2012.

Section 1201

Section 1201 of S. 2012, as engrossed in the House, would modify Section 4(e) of the Federal

Power Act of 1935 (FPA; 16 U.S.C. §§791-828c)—which, in part, authorizes the issuance of

licenses for hydropower projects.5 Section 1201 would add “minimizing infringement of the

useful exercise and enjoyment of property rights held by nonlicensees” as a factor to which FERC

must give equal consideration when issuing a license. Essentially, when issuing a license, FERC

would be instructed to equally consider how the project could balance the use and enjoyment of

nonlicensees with property rights, along with existing requirements, including “purposes of

energy conservation, the protection, mitigation of damage to, and enhancement of, fish and

wildlife (including related spawning grounds and habitat), the protection of recreational

opportunities, and the preservation of other aspects of environmental quality.”6

Section 1201 also would modify Section 10 of the FPA, which addresses license conditions,

including resource agency recommendations, among other things.7 Section 1201 would require

FERC to ensure that the comprehensive plan for the project outlined in Section 10(a) of the FPA

addresses “minimizing infringement of the useful exercise and enjoyment of property rights held

by nonlicensees.” Further, Section 1201 would add a private landownership condition to Section

10 of the FPA. This condition would require the licensee to consider private landownership as a

way to encourage and facilitate private investment and increase tourism and recreation if the

recreational resources within the project area are developed.

The Senate version of S. 2012 contains no comparable language.

5 16 U.S.C. §797(e).

6 Ibid.

7 16 U.S.C. §803.

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Section 1202

Section 1202 of S. 2012, as engrossed in the House, would modify various aspects of the license

for a specific project. See Table 1 for a synopsis of the section.

This section is comparable to Section 10343 of the Senate version of S. 2012.

Section 1203

Section 1203 of S. 2012, as engrossed in the House, would modify Part I of the FPA—which

addresses mainly hydroelectric project licensing and dam safety—by adding a new Section 34,

“Hydropower Licensing and Process Improvements,” to the act.8 Essentially, Section 1203 would

designate FERC as the lead agency to coordinate the nonfederal hydropower project licensing

process and to comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C.

§§4321 et seq.). It also would formalize the license-issuance timeline. As the lead agency, FERC

would be required to identify and notify any federal or state agency, local government, or Indian

tribe that may participate in the federal authorization of a project. Section 1203 would define

federal authorization to include any authorization required under federal law pertaining to a

license, license amendment, or exemption, among other things.

Section 1203 would establish multiple deadlines for FERC and other involved parties. Further,

the section would require that all parties, including the licensee, adhere to the deadlines set forth

in the final schedule established by FERC. The section would require that the respective federal

or state agency, local government, or Indian tribe identify and share, as early as possible, with

FERC any issues of concern that may delay or prevent the granting of a federal authorization or

prevent the agency or tribe from adhering to the established schedule. FERC would then be able

to move to resolve such issues. Any agency or tribe not able to adhere to the schedule would be

able to file for an extension in federal circuit court or the Court of Appeals for the District of

Columbia.9 Section 1203 would allow an applicant seeking a federal authorization (i.e., a license)

to pay a third-party contractor—approved by the agency or tribe—to assist in reviewing their

application. FERC would then be able to make a recommendation regarding the scope of the

environmental review to federal and state agencies and Indian tribes, and agencies and tribes

would be able to defer to FERC’s recommendations. Furthermore, FERC would maintain a

complete, consolidated record of all decisions or actions regarding a federal authorization.

This section resembles Section 3001(i) of the Senate version of S. 2012, with some differences.10

Section 1204

Section 1204 of S. 2012, as engrossed in the House, would modify Section 13(b) of the FPA,

which addresses the judicial review of a FERC decision.11 Section 1204 would add a section that

centers on the delay of a federal authorization. More specifically, it would require any agency or

tribe that will not meet the deadline set in the final schedule established by FERC to file for an

extension in a federal circuit court where the project is located or in the Court of Appeals for the

District of Columbia at least 30 days prior to the deadline. The court may grant an extension only

if the agency or tribe shows that it otherwise complied with the necessary requirements, except

8 16 U.S.C. §§792 et seq.

9 The process is described in §1204.

10 See “Section 3001” of this report for a discussion of the differences.

11 16 U.S.C. §825l(b).

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when complying with the schedule would have prevented the agency from complying with

federal or state law. If the court grants the extension, the court must set a new schedule and

deadline, no longer than 90 days, for the agency to comply. If the court denies the extension—or

if the agency or tribe does not file for an extension and does not complete its responsibilities by

the deadline—FERC and the applicant can move forward with the proposed action.

The Senate version of S. 2012 contains no comparable language.12

Section 1205

Section 1205 of S. 2012, as engrossed in the House, would modify Part I of the FPA—which

addresses mainly hydroelectric project licensing and dam safety—by adding a new Section 35,

“Licensing Study Improvements,” to the act.13 Section 1205 would require FERC, in consultation

with other federal and state agencies and interested members of the public, to compile and make

available a list of current and accepted best practices, studies, data, and more that would support

FERC, the agencies, and the tribes with federal authorization proceedings. Further, the section

would require FERC to establish a basin-wide or regional review program that would develop

comprehensive plans on a basin-wide or regional scale in instances where there is more than one

project or application for a project. FERC, in consultation with the other agencies and tribes,

would be authorized to commission such an environmental study if at least two applicants were

participating in a given project.

This section is similar to Section 3001(i) of the Senate version of S. 2012, with some

differences.14

Section 1206

Section 1206 of S. 2012, as engrossed in the House, would modify Part I of the FPA—which

addresses mainly hydroelectric project licensing and dam safety—by adding a new Section 36,

“Closed-Loop Pumped Storage Projects,” to the act.15 Section 1206 would require FERC to issue

and amend licenses and preliminary permits for closed-loop pumped storage projects. FERC

would be required to assess the safety of the existing dam and other structures related to the

project before issuing a license for such a project. FERC’s authority to place a condition on such

a license would be limited to public safety protection and the prevention of the loss of or damage

to fish and wildlife resources. Additionally, to facilitate the development of a closed-loop pumped

storage project, FERC would be authorized to add entities as joint permittees once a preliminary

permit has been issued and would be able to transfer a license to nonmunicipal entities as colicensees with a municipality.

The first part of this section is similar to Section 3001(i) of the Senate version of S. 2012.16

12 S. 2012 (the Senate version) differs in how it addresses the delay of a federal authorization. See Section 3001(i) of S.

2012 (the Senate version), which discusses resolution of interagency disputes and the use of trial-type hearings for

certain conditions.

13 16 U.S.C. §§792 et seq.

14 See “Section 3001” of this report for a discussion of the differences.

15 16 U.S.C. §§792 et seq.; A closed-loop pumped storage project is defined in the bill as a project in which the upper

and lower reservoirs do not impound or directly withdraw water from navigable waters or are not continuously

connected to a naturally flowing water feature.

16 See “Section 3001” of this report for a discussion of the differences.

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Section 1207

Section 1207 of S. 2012, as engrossed in the House, would modify Part I of the FPA—which

addresses mainly hydroelectric project licensing and dam safety—by adding a new Section 37,

“License Amendment Improvements,” to the act.17 Section 1207 would allow FERC to approve a

license amendment for a qualifying project upgrade.18 FERC would have 15 days to make an

initial determination about the proposed change once contacted by the applicant, which would be

followed by a 45-day opportunity for public comment. If the proposed license amendment is not

contested, FERC would publish a notice stating so. If the amendment is contested, FERC would

issue a written determination about whether the license amendment is for a project upgrade. Then,

FERC would proceed with soliciting comments from federal, state, and local agencies and tribes

about the proposed license amendment. FERC would be authorized to take final action on the

application no later than 150 days after the date of the announced initial determination. Any

conditions imposed on the license amendment must relate to public safety protection and the

prevention of the loss of or damage to fish and wildlife resources. If FERC decided the proposed

license amendment was not for a qualifying project upgrade, the procedures mentioned above in

this section would not apply.

FERC would be required to issue a rule 180 days after enactment of this section including the

given definitions for qualifying project upgrade and qualifying criteria. FERC would also be

required to issue a new rule one year after enactment of this section establishing new standards

and procedures for license amendment applications. When issuing the new rule, FERC would be

obligated to consider whether changes in generation or hydraulic capacity could indicate a

potential environmental effect for the proposed amendment, but these factors would not be

determinative.

The Senate version of S. 2012 contains no comparable language.

Section 1208

Section 1208 of S. 2012, as engrossed in the House, would modify Part I of the FPA—which

addresses mainly hydroelectric project licensing and dam safety—by adding a new Section 38,

“Promoting Hydropower Development at Existing Nonpowered Dams,” to the act.19 This section

would allow FERC to issue an exemption for qualifying facilities.20 FERC would consult with

agencies and tribes when granting such an exemption. FERC would be able to impose conditions

on the exemption related to public safety protection and prevention of the loss of or damage to

fish and wildlife resources. An exemption granted under this section would not include a

condition or other requirement that would alter the “storage, control, withdrawal, diversion,

release, or flow operations of the associated qualifying nonpowered dam.” The environmental

review for the proposed exemption would be limited to an environmental assessment, unless

FERC determines that the NEPA obligations can be met with a categorical exclusion. Exemptees

17 16 U.S.C. §§792 et seq.

18 A qualifying project upgrade is defined as a change to a hydropower project license that meets qualifying criteria as

determined by FERC. Qualifying criteria include a project change that would be unlikely to adversely affect threatened

and endangered species, would result in insignificant or minimal cumulative adverse environmental effects, would

increase capacity, would improve efficiency, would protect the environment, or would improve public recreation at the

project, among other things.

19 16 U.S.C. §§792 et seq.

20 A qualifying facility would have to meet certain qualifying criteria. One such criterion is that the facility was not

licensed or exempted from license requirements prior to enactment of the bill.

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for facilities located at a nonfederal dam would pay the United States annual charges, with any

proceeds paid into the Treasury.

The Senate version of S. 2012 contains no comparable language in S. 2012.

Sections 8001-8006

Sections 8001-8006 of S. 2012, as engrossed in the House, would modify various aspects of the

license for specific projects. See Table 1 for a synopsis of the sections and comparisons to the

Senate-engrossed version of the bill.

S. 2012, as Engrossed in the Senate

The Senate version of S. 2012 explicitly addresses hydropower in 11 sections—4 of which are

under Title III–Supply, Part I–Hydroelectric; 6 of which are under Title X–Natural Resources,

Part V–Hydroelectric Projects; and 1 of which is under Title X–Natural Resources, Part VI–

Pumped Storage Hydropower Compensation. Seven of the 11 sections focus on the construction

timeline for specific projects or stipulate certain license criteria. Two sections under Title III,

Sections 3001 and 3002, focus on hydropower licensing improvements and incentives. One

section under Title X, Section 10345, centers on termination of authority for the Secretary of the

Interior. Another section under Title X, Section 10351, focuses on compensation for pumped

storage hydropower projects.

This portion of the report summarizes the contents of each of the 11 sections in the Senate version

of S. 2012 that address hydropower. Where applicable, it also discusses comparable provisions in

the House version.

Section 3001

Section 3001 of S. 2012, as engrossed in the Senate, contains several wide-ranging hydropower

initiatives, as well as one general renewable electricity initiative.

Section 3001(a) would convey Congress’s perspective that hydropower is a

renewable and essential energy source and that the United States should increase

hydropower capacity and generation. The House version of S. 2012 contains no

comparable language.

Section 3001(b)(1) would modify the federal purchase requirement for electricity

from renewable sources in the Energy Policy Act of 2005 (EPAct05; P.L. 109-58)

by setting the federal purchase requirement at no less than 15% starting in

FY2016 and for each fiscal year thereafter.21 With this modification, the Senate

version would double the amount of electric energy the federal government

would be required to consume from renewable energy during any fiscal year.

Although Section 3115 of the House version would address the federal purchase

requirement, the House version has no such comparable language stipulating

what the purchase requirement would be.

Section 3001(b)(2) would modify the definition of renewable energy in Section

203(b) of EPAct05 for the federal purchase requirement to mean “energy

produced from solar, wind, biomass, landfill gas, ocean (including tidal, wave,

21 The statutory requirement is not less than 7.5% in FY2013 and each fiscal year thereafter. 42 U.S.C. §15852.

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current, and thermal), geothermal, municipal solid waste, or hydropower.”22 This

new definition would broaden the statutory definition to include all hydropower.

Section 3115 of the House version also would modify the definition of renewable

energy in Section 203(b) of EPAct05, but the modification would address thermal

energy, not hydropower.23

Section 3001(c) would modify Section 4(e) of the FPA to allow FERC to

determine what would be necessary or useful regarding investigations and data

collection.24 The House version of S. 2012 contains no comparable language.

Section 3001(d) would modify Section 5 of the FPA—which addresses

preliminary permits—by allowing FERC to issue a preliminary permit for up to

four years and to extend the preliminary permit period once for no more than four

additional years. Further, it would allow FERC to issue an additional permit to

the permittee after an extension if there are extraordinary circumstances that

warrant such.25 The House version of S. 2012 contains no comparable language.

Section 3001(e) would modify Section 13 of the FPA—which addresses the time

period to construct a project, extensions for the construction start date, and

license terminations—to extend the start of project construction for up to eight

years.26 The House version of S. 2012 contains no comparable language.

Section 3001(f) would modify Section 15(e) of the FPA—which addresses the

term of a license—to require FERC to consider, when determining the term of

the license, project-related investments that could lead to new development,

efficiency improvements, and more, over the term of the existing license.27 The

House version of S. 2012 contains no comparable language.

Section 3001(g) would modify Section 18 of the FPA—which addresses the

operations of navigation facilities in connection to hydropower projects—by

eliminating the applicant’s ability to request a determination on the record

following a trial-type hearing for any disputes related to fishways.28 The House

version of S. 2012 contains no comparable language.

Section 3001(h) would modify Section 33 of the FPA—which addresses

alternative conditions and prescriptions for hydropower licenses—by eliminating

22 The statutory definition of renewable energy is as follows: “The term ‘renewable energy’ means electric energy

generated from solar, wind, biomass, landfill gas, ocean (including tidal, wave, current, and thermal), geothermal,

municipal solid waste, or new hydroelectric generation capacity achieved from increased efficiency or additions of new

capacity at an existing hydroelectric project.” 42 U.S.C. §15852.

23 §3115 of S. 2012 (the House version) says “The term ‘renewable energy’ means electric energy, or thermal energy if

resulting from a thermal energy project placed in service after December 31, 2014, generated from, or avoided by,

solar, wind, biomass, landfill gas, ocean (including tidal, wave, current, and thermal), geothermal, municipal solid

waste (in accordance with subsection (e)), qualified waste heat resource, or new hydroelectric generation capacity

achieved from increased efficiency or additions of new capacity at an existing hydroelectric project.”

24 The statutory language states “to the extent the Commission [FERC] may deem necessary.” 16 U.S.C. §797.

25 The statute allows FERC to issue a preliminary permit for a period of up to three years and to extend the permit for

an additional two years. 16 U.S.C §798.

26 The statute allows FERC to extend the start of project construction once for two years. 16 U.S.C. §806.

27 16 U.S.C. §808e.

28 16 U.S.C. §811. A trial-type hearing is generally defined as a proceeding before an administrative law judge. S. 2012

(the Senate version), §3001(i), adds a new Section 36, Trial-Type Hearings, which would further address trial-type

hearings.

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the respective Secretary’s (e.g., Secretary of the Interior) ability to submit to

FERC, for both alternative conditions and alternative prescriptions, a written

statement about a condition for a license including equal consideration, among

other things. In addition, it would eliminate dispute resolution between FERC

and the Secretary about the condition.29 It also would modify the section to apply

to any further conditions or prescriptions proposed or imposed pursuant to

Sections 4(e), 6, and 18 of the FPA. The House version of S. 2012 contains no

comparable language.

Section 3001(i) would modify Part I of the FPA—which addresses mainly

hydroelectric project licensing and dam safety—by adding a new Section 34,

“Licensing Process Improvements,” to the act.30 This section is similar to Section

1205 of the House version, except the Senate bill text emphasizes that any

biological opinion to form the basis for a prescription prepared by the National

Marine Fisheries Service would be done concurrently rather than sequentially

and that water quality certification deadlines would take effect only if the

certifying agency were to request one. Unlike the House version, the Senate

version does not discuss a basin-wide or regional review program that would

develop comprehensive plans on a regional or basin-wide scale.31

Section 3001(i) would modify Part I of the FPA by adding a new Section 35,

“Licensing Process Coordination,” to the act.32 This section resembles Section

1203 of the House version, except the Senate bill would note that it is the “sense

of Congress” that all federal authorizations—including a license or exemption—

should be issued within three years after the date FERC considers an application

to be complete. In addition, the Senate version would stipulate that interagency

disputes regarding failure to adhere to the schedule established by FERC and

issues associated with alternative conditions and prescriptions should be referred

to the chairman of the Council on Environmental Quality.33

Section 3001(i) would modify Part I of the FPA by adding a new Section 36,

“Trial-Type Hearings,” to the act.34 This section would allow for the license

applicant to receive a determination on the record about covered measures (e.g.,

conditions and fishways) following a trial-type hearing that is to last no longer

than 120 days. The decision by the FERC administrative law judge for the case

would be final and not subject to further administrative review. No later than 60

days following the judge’s decision, the Secretary associated with the condition

or prescription being challenged would have to make a determination to adopt,

modify, or withdraw the condition or prescription. If FERC disagrees with the

Secretary’s determination, the matter could be referred to the chairman of the

29 16 U.S.C. §823d. S. 2012 (the Senate version), §3001(i)—which adds a new Section 35, “Licensing Process

Coordination,” would further address the equal consideration requirement.

30 16 U.S.C. §§792 et seq.

31 §3001 of S. 2012 (the Senate version) does contain a pilot program for region-wide, or basin-wide, studies in its

addition of a §38 to the Federal Power Act of 1935 (FPA; 16 U.S.C. §§791-828c).

32 16 U.S.C. §§792 et seq.

33 §1204 of the House version of S. 2012 addresses the delay of a federal authorization, due in part to an interagency

dispute.

34 Ibid.

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Council on Environmental Quality. The House version of S. 2012 contains no

comparable language.

Section 3001(i) would modify Part I of the FPA by adding a new Section 37,

“Pumped Storage Projects,” to the act.35 This section is similar to the first part of

Section 1206 of the House version. However, the Senate text addresses only what

FERC should consider to be a closed-loop pumped storage project for Section

6(a) of the Hydropower Regulatory Efficiency Act of 2013 (P.L. 113-23);36 it

does not address closed-loop pumped storage project license issuance, dam

safety, conditions, and transfers.

Section 3001(i) would modify Part I of the FPA by adding a new Section 38,

“Annual Reports,” to the act.37 This section would require FERC to submit to the

Senate Committee on Energy and Natural Resources and the House Committee

on Energy and Commerce an annual report about the various criteria for project

license and preliminary permit issuance, renewals, the quantity of energy and

capacity for new and reauthorized projects, and more. FERC would be required

to establish and maintain a publicly available website with the required

information. Further, resource agencies would be required to submit to the two

committees a report that describes all of the terms, conditions, and more that the

agencies issued during the year and specifies whether those terms, conditions, or

other requirements would lead to a loss of energy, capacity, or ancillary services

at the project, among other things.38 The resource agencies would be required to

establish and maintain a publicly available website with the required information.

The House version of S. 2012 contains no comparable language.

Section 3001(j) would require FERC to establish a voluntary pilot program for

hydropower focused on covering at least one region with a set of region-wide

studies that could inform subsequent project-level studies within the region. This

section is similar to Section 1205 of the House version.

Section 3002

Section 3002 of S. 2012, as engrossed in the Senate, would modify Section 242 of EPAct05—

which addresses hydroelectric production incentives—to expand the eligibility period for the

hydroelectric production incentive program to 2025. Section 3002 also would establish the sunset

date for the program at 2035 and would reauthorize appropriations for the program at $10 million

annually for FY2016 to FY2025.39 In addition, this section would modify Section 243 of

35 16 U.S.C. §§792 et seq.

36 §6(a) of P.L. 113-23 requires FERC to investigate the feasibility of issuing a license for hydropower projects at non-

powered dams and closed-loop pumped storage projects within a two-year period.

37 16 U.S.C. §§792 et seq.

38 Resource agencies generally refer to those agencies at federal departments (e.g., Department of the Interior,

Department of Agriculture) that may develop conditions or prescriptions for inclusion in a hydropower license issued

by FERC. There has been some discussion about resource agency involvement in the hydropower licensing process.

For more information on resource agency involvement when a dispute arises, see Department of Agriculture,

Department of the Interior, and Department of Commerce, “Resource Agency Hearings and Alternatives Development

Procedures in Hydropower Licenses; Interim Rule,” 80 Federal Register 17156-17220, March 31, 2015.

39 42 U.S.C. §15881.

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EPAct05—which addresses hydroelectric efficiency improvements—to reauthorize

appropriations for the program for FY2016 to FY2025.40

The House version of S. 2012 contains no comparable language.

Sections 3003, 3004, 10341, 10342, 10343, 10344, and 10346

Sections 3003-3004, 10341-10344, and 10346 of S. 2012, as engrossed in the Senate, would

modify various aspects of the license for specific projects. See Table 1 for a synopsis of the

sections and comparisons to the House version of the bill.

Section 10345

Section 10345 of S. 2012, as engrossed in the Senate, would modify Section 10(h) of P.L. 86787—which centers on the Equus Beds aquifer recharge and recovery.41 This section would allow

the Secretary of the Interior to carry out any provision under the act for 20 years from the date on

which the law was enacted.42

The House version of S. 2012 contains no comparable language.

Section 10351

Section 10351 of S. 2012, as engrossed in the Senate, would require FERC to identify and

determine mechanisms that would encourage development of and allow for compensation for

pumped storage hydropower assets.

The House version of S. 2012 contains no comparable language.

Potential Issues

The Senate and House versions of S. 2012 contain provisions that would significantly impact

nonfederal hydropower. Chief among these provisions is the one that would make FERC the lead

agency for federal authorizations—and the lead agency for issuing a hydropower license.43 With

this provision, Congress would be signaling that it wants FERC to play a more prominent role

and to be the gatekeeper for the licensing process. It could be argued that FERC could misuse this

leadership authority if the commission does not fully cooperate with the other involved agencies.

On the other hand, having FERC as the lead agency could shorten the licensing process by

facilitating cooperation among the stakeholders. Further, both bills set timeframes for steps within

the licensing process, perhaps as an attempt to make issuing a license timelier.

Additionally, both bills have provisions that could be viewed as controversial.44 In particular,

those provisions pertaining to mandatory conditioning authority and the new hydropower

40 42 U.S.C. §15882.

41 P.L. 86-787; 74 Stat. 1026; 120 Stat. 1474; An Act to Provide for the Construction of the Cheney Division, Wichita

Federal Reclamation Project, Kansas, and for Other Purposes.

42 The statute gives the Secretary of the Interior the authority to carry out any provision under the act for 10 years from

the date on which the law was enacted.

43 §1203 of S. 2012 (House version); §3001(i) of S. 2012 (Senate version).

44 Several stakeholders have expressed their views to Congress on both bills—including the National Hydropower

Association, American Rivers, the California State Water Resources Control Board, Maryland Department of the

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Hydropower: Comparison of the House and Senate Versions of S. 2012

licensing schedule have invited debate.45 For instance, some states and environmental groups are

concerned that the bills provide FERC with a unique authority to set the schedule for issuing a

hydropower license. Some contend that a schedule set by FERC could make the other involved

parties unable to contribute to the hydropower licensing process as they have in the past and

could potentially weaken their contribution to the environmental review process of such

projects.46 However, the National Hydropower Association argues that the bills would make the

licensing process more coherent and collaborative and would require regulators to make more

timely decisions “without narrowing the authorities of federal and state resources agencies and

Indian tribes under existing federal environmental laws.”47

Another controversial provision could be Section 3001(b)(2) of S. 2012, as engrossed in the

Senate, which significantly broadens the statutory definition for renewable energy for the federal

purchase requirement to include all hydropower. Some could argue that there should be limits to

what type of hydropower qualifies for the purchase requirement. Others could contend that

hydropower itself is sufficient to qualify for the federal purchase requirement without any relation

to new capacity.48

Environment, Karuk Tribe, Puyallup Tribe, and others.

45 Mandatory conditioning authority allows certain agencies to impose conditions on relicensed projects to ensure that

the projects comply with certain laws, such as the Clean Water Act and the Endangered Species Act. This authority is

granted to the Department of the Interior and the Department of Agriculture/Forest Service under §4(e) of the FPA and

to the Departments of Commerce and the Interior under §18 of the FPA for fishways.

46 Letter from California State Water Resources Control Board to Representatives Upton and Pallone, Jr., Comments in

opposition to provisions of House of Representatives Bill 8—North American Energy Security and Infrastructure Act

of 2015, October 15, 2015; Letter from Puyallup Tribe of Indians to Senators Murray and Cantwell, Amendments to

the Federal Power Act in S. 2012, January 26, 2016.

47 National Hydropower Association, “House Passes Bill to Bring Hydropower Licensing Process into the 21 st

Century,” press release, December 3, 2015.

48 For more information on modifying the renewable energy definition for the federal purchase requirement, see the

section titled “Section 3001” in this report.

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Table 1. House- and Senate-Engrossed Versions of S. 2012 for Specific

Hydropower Projects

Bill and

Section

No.

FERC

Project

No.

Project

Name

State

Authorized

Capacity

(KW)

WV

14,000

Synopsis of Bill

Requirementa

Comparable Provision

in the Other Bill

S. 2012, as Engrossed in the House

Section

8003

12715

Jennings

Randolph

Would extend the time

period to start

construction for no more

than 3 consecutive 2-year

periods

Would allow FERC to

reinstate the license if the

period to begin

construction expires prior

to enactment of the bill

Would allow FERC to

reinstate the license

Would extend the time

period to start

construction to be within

3 years of the enactment

date of the bill

Would extend the time

period to start

construction to be within

6 years of the expiration

date of the extension

issued by FERC

Would allow FERC to

reinstate the license if the

time period to start

project construction

lapses before enactment

of the bill

Would require that no

more than 20 acres of

federal land be allotted

for the construction,

operation, and

maintenance of the Upper

Hidden Basin Diversion

Expansion of the project

No comparable provision

in the Senate version

S. 2012, as Engrossed in the Senate

Section

3003

Section

3004

Section

10341

12429

12478003

2743

Clark

Canyon Dam

Gibson Dam

Terror Lake

Congressional Research Service

MT

MT

AK

4,700

15,000

36,000

R44523 · VERSION 2 · UPDATED

Section 8001 of the House

version

Section 8002 of the House

version; the House version

does not address

reinstatement of the

license

No comparable provision

in the House version

12

Hydropower: Comparison of the House and Senate Versions of S. 2012

Bill and

Section

No.

FERC

Project

No.

Section

10342

11393

Section

10343

12642

Section

10344

Section

10346

12737;

12740

13287

State

Authorized

Capacity

(KW)

Mahoney

Lake

AK

9,600

Would allow FERC to

continue the stay of the

license or to lift the stay

(within a 10 year period

from enactment of the

bill), making the license

effective on the date the

stay is lifted, and grant

extensions to start

construction of the

project for no more than

3 consecutive 2-year

periods

No comparable provision

in the House version

W. Kerr

Scott

NC

4,000

Would extend the time

period to start

construction for no more

than 3 consecutive 2-year

periods

Section 1202 of the House

version

Would allow FERC to

reinstate the license if the

period to begin

construction expires prior

to enactment of the bill

Would extend the time

period to start

construction for no more

than 3 consecutive 2-year

periods from the

expiration date contained

in the original extension

Would allow FERC to

reinstate the license if the

period to start

construction expires prior

to enactment of the bill

Would extend the time

period to start

construction for up to 4

consecutive 2-year

periods

Would allow FERC to

reinstate the license if the

period to start

construction expires prior

to enactment of the bill

Project

Name

Gathright;

Flannagan

Cannonsville

VA;

VA

NY

3,700;

1,800

14,080

Synopsis of Bill

Requirementa

Comparable Provision

in the Other Bill

Sections 8005 and 8006 of

the House version

Section 8004 of the House

version

Sources: House- and Senate-engrossed versions of S. 2012.

Notes: Bill requirements for each specific project are brief summaries of the more pertinent bill requirements.

See the respective bill for the complete requirement. FERC = Federal Energy Regulatory Commission. KW =

kilowatts.

a. For those projects in which the construction start period is extended, the legislation modifies §13 of the

FPA, which requires licensees to commence project construction within two years of a given date and to

finish construction and start project operation by a given date. Further, §13 allows for the construction start

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Hydropower: Comparison of the House and Senate Versions of S. 2012

date to be extended once for a two-year period and allows FERC to extend the completion period given

certain conditions. If the licensee has not begun project construction within the given time frame, FERC may

terminate the license. If project construction began but was not finished within the given time frame, a

resolution is decided by the district court where any part of the project is situated. 16 U.S.C. §806.

Author Contact Information

Kelsi Bracmort

Specialist in Agricultural Conservation and Natural

Resources Policy

[redacted]@crs.loc.gov , 7-....

Congressional Research Service

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14

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