Sec. 8. Hydroelectric facilities

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Subject to paragraph (3), in accordance with section 3 of the Hydroelectric Settlement, the Governors and the Secretary shall jointly— as soon as practicable after the date of enactment of this Act, determine whether to proceed with facilities removal, based on but not limited to factors identified in the Hydroelectric Settlement; and if the Governors and the Secretary determine under subparagraph

(A)to proceed with facilities removal, include in the determination the designation of a dam removal entity, subject to paragraph (6). For purposes of making a determination under paragraph (1)(A), the Governors and the Secretary, in cooperation with the Secretary of Commerce and other appropriate entities, shall— use existing information; conduct any necessary additional studies; comply with the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq. ); and take such other actions as the Governors and the Secretary determine to be appropriate to support the determination under paragraph (1). The Secretary and the Governors may not make or publish the determination under this subsection, unless the conditions specified in section 3.3.4 of the Hydroelectric Settlement, as modified by this Act as applicable, have been satisfied. The Secretary shall publish notification of the determination under this subsection in the Federal Register. For purposes of judicial review, the determination of the Secretary under paragraph

(1)shall constitute a final agency action with respect to whether or not to proceed with facilities removal. Judicial review of the determination and related actions to comply with environmental laws (including the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq. ), the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. ), and the National Historic Preservation Act ( 16 U.S.C. 470 et seq. )) may be obtained by an aggrieved person only as provided in this paragraph. A petition for review under this paragraph may be filed only in the United States Court of Appeals for the District of Columbia Circuit or in the Ninth Circuit Court of Appeals. A district court of the United States and a State court shall not have jurisdiction to review the determination of the Secretary or related actions to comply with environmental laws described in subclause (I). Except as provided in subclause (II), any petition for review under this paragraph shall be filed not later than 60 days after the date of publication of the determination in the Federal Register. If a petition is based solely on grounds arising after the date that is 60 days after the date of publication of the determination in the Federal Register, the petition for review under this subsection shall be filed not later than 60 days after the grounds arise. Any action of the Secretary with respect to which review could have been obtained under this paragraph shall not be subject to judicial review in any action relating to the implementation of the determination of the Secretary or in proceedings for enforcement of the Hydroelectric Settlement. Judicial review of the determination of the Secretary shall be in accordance with the standard and scope of review under subchapter II of chapter 5, and chapter 7, of title 5, United States Code (commonly known as the Administrative Procedure Act ). The filing of a petition for reconsideration by the Secretary of an action subject to review under this subsection shall not— affect the finality of the action for purposes of judicial review; extend the time within which a petition for judicial review under this subsection may be filed; or postpone the effectiveness of the action. A dam removal entity designated by the Governors and the Secretary under paragraph (1)(B) shall, in the sole judgment of the Governors and the Secretary— have the capabilities for facilities removal described in section 7.1.1 of the Hydroelectric Settlement; be otherwise qualified to perform facilities removal; and have committed, if so designated, to perform facilities removal within the State Cost Cap as described in section 4.1.3 of the Hydroelectric Settlement. The dam removal entity designated by the Governors and the Secretary under paragraph (1)(B) shall have the responsibilities described in section 7.1.2 of the Hydroelectric Settlement. This subsection shall apply if— the determination of the Governors and the Secretary under subsection

(a)provides for proceeding with facilities removal; the availability of non-Federal funds for the purposes of facilities removal is consistent with the Hydroelectric Settlement; and the Hydroelectric Settlement has not terminated in accordance with section 8.11 of the Hydroelectric Settlement. Notwithstanding title 31, United States Code, if the Department of the Interior is designated as the dam removal entity under subsection (a)(1)(B), the Secretary may accept, manage, and expend, without further appropriation, non-Federal funds for the purpose of facilities removal in accordance with sections 4 and 7 of the Hydroelectric Settlement. The Secretary may administer and refund any amounts described in subparagraph

(A)received from the State of California in accordance with the requirements established by the State. The costs of dam removal shall include, within the State Cost Cap described in section 4.1.3 of the Hydroelectric Settlement, reasonable compensation for property owners whose property or property value is directly damaged by facilities removal, consistent with State, local, and Federal law. The dam removal entity may enter into agreements and contracts as necessary to assist in the implementation of the Hydroelectric Settlement. The dam removal entity shall, consistent with the Hydroelectric Settlement— develop a definite plan for facilities removal as described in section 7 of the Hydroelectric Settlement, including a schedule for facilities removal; obtain all permits, authorizations, entitlements, certifications, and other approvals necessary to implement facilities removal, including a permit under section 404 of the Federal Water Pollution Control Act ( 33 U.S.C. 1344 ), notwithstanding subsection

(r)of that section; and implement facilities removal. The Governors and the Secretary shall prepare and make public a report on the determination and plan for facilities removal. The report shall, at a minimum— provide a detailed explanation of the basis for the determination to proceed with facilities removal and for the designation of the dam removal entity, including relevant supporting documents; include any comments received from the Commission on the determination and a written response to the comments; state specific goals intended to be achieved by facilities removal; include specific performance measures that will be used to show achievements in meeting the goals; provide a detailed explanation of factors that are unique to facilities removal in the Klamath Basin, including why the Federal role is limited to the Klamath Basin and sets no precedent for future Federal action; describe plans to address any potential costs in excess of the State Cost Cap described in section 4.1.3 of the Hydroelectric Settlement; describe plans for addressing or mitigating intentional or unintentional impacts on local communities and property owners; and describe how any potential environmental or other liability concerns will be addressed. The report required under this subparagraph shall be submitted to— the Committee on Energy and Natural Resources of the Senate; the Committee on Natural Resources of the House of Representatives; and the Commission. Not later than 180 days before the publication of the report required by this subparagraph, the Governors and the Secretary shall submit to the Commission the section of the report describing the basis of the determination to proceed with dam removal for comment and, as appropriate, consultation. The report required under this subparagraph shall be made public— not less than 1 year before the date of implementation of facilities removal; and not more than 2 years before the date of implementation of facilities removal. Except as provided in clause (ii), facilities removal shall be subject to applicable requirements of State and local laws relating to permits and other authorizations, to the extent the requirements are not in conflict with Federal law, including the determination of the Governors and the Secretary under subsection

(a)and the definite plan (including the schedule) for facilities removal authorized under this Act. Clause

(i)shall not affect— the authorities of the States regarding concurrence with the determination of the Secretary under subsection

(a)in accordance with State law; or the authority of a State public utility commission regarding funding of facilities removal. The United States district courts shall have original jurisdiction over all claims regarding the consistency of State and local laws regarding permits and other authorizations, and of State and local actions pursuant to those laws, with the definite plan (including the schedule) for facilities removal authorized under this Act. The dam removal entity may accept from PacifiCorp all rights, titles, permits, and other interests in the facilities and associated land, for facilities removal and for disposition of facility land (as provided in section 7.6.4 of the Hydroelectric Settlement) on providing to PacifiCorp a notice that the dam removal entity is ready to commence facilities removal in accordance with section 7.4.1 of the Hydroelectric Settlement. Notwithstanding section 8 of the Federal Power Act ( 16 U.S.C. 801 ), the transfer of title to facilities from PacifiCorp to a non-Federal dam removal entity, in accordance with the Hydroelectric Settlement and this Act, is authorized. In accordance with an agreement negotiated under clause (ii), on transfer of title pursuant to subparagraph

(C)and until the dam removal entity instructs PacifiCorp to cease the generation of power, PacifiCorp may continue, consistent with State law— to generate, and retain title to, any power generated by the facilities in accordance with section 7 of the Hydroelectric Settlement; and to transmit and use the power for the benefit of the customers of PacifiCorp under the jurisdiction of applicable State public utility commissions and the Commission. As a condition of transfer of title pursuant to subparagraph (C), the dam removal entity shall enter into an agreement with PacifiCorp that provides for continued generation of power in accordance with clause (i). Not later than 3 years after the date of the completion of facilities removal, the Governors and the Secretary shall submit to the Committee on Energy and Natural Resources of the Senate, the Committee on Natural Resources of the House of Representatives, and the Commission— a detailed report describing the results of facilities removal, including the status of achieving the performance measures and goals included in the report described in subparagraph (B); and such additional reports as the Committees consider appropriate, to be completed and submitted by the Secretary, in consultation with the Governors. The Commission shall issue annual licenses authorizing PacifiCorp to continue to operate the facilities until PacifiCorp transfers title to all of the facilities. The annual licenses shall terminate with respect to a facility on transfer of title for the facility from PacifiCorp to the dam removal entity. On transfer of title of any facility by PacifiCorp to the dam removal entity, annual license conditions shall no longer be in effect with respect to the facility. Annual license conditions shall remain in effect with respect to any facility for which PacifiCorp has not transferred title to the dam removal entity to the extent compliance with the annual license conditions are not prevented by the removal of any other facility. The jurisdiction of the Commission under part I of the Federal Power Act ( 16 U.S.C. 792 et seq. ) shall terminate with respect to a facility on the transfer of title for the facility from PacifiCorp to the dam removal entity. The Commission shall— stay the proceeding of the Commission regarding the pending license application of PacifiCorp for Project No. 2082 for the period during which the Hydroelectric Settlement remains in effect; and resume the proceeding and proceed to take final action on the new license application only if the Hydroelectric Settlement terminates pursuant to section 8.11 of the Hydroelectric Settlement. If the Hydroelectric Settlement is terminated pursuant to section 8.11 of the Hydroelectric Settlement, the Commission, in proceedings on the application for relicensing, shall not be bound by the record or findings of the Secretary relating to the determination of the Secretary or by the determination of the Secretary. Notwithstanding any other Federal, State, local, or common law, PacifiCorp shall not be liable for any harm to an individual or entity, property, or the environment, or any damages resulting from facilities removal or facility operations arising from, relating to, or triggered by actions associated with facilities removal under this Act, including any damage caused by the release of any material or substance (including a hazardous substance). Notwithstanding any other Federal, State, local, or common law, no individual or entity contributing funds for facilities removal shall be held liable, solely by virtue of that funding, for any harm to an individual or entity, property, or the environment, or damages arising from facilities removal or facility operations arising from, relating to, or triggered by actions associated with facilities removal under this Act, including any damage caused by the release of any material or substance (including a hazardous substance). Notwithstanding section 10(c) of the Federal Power Act ( 16 U.S.C. 803(c) ), protection from liability pursuant to this section shall preempt the laws of any State to the extent the laws are inconsistent with this Act, except that this Act shall not limit any otherwise-available immunity, privilege, or defense under any other provision of law. Liability protection under this subsection shall take effect as the protection relates to any particular facilities on transfer of title to the facility from PacifiCorp to the dam removal entity designated by the Secretary under subsection (a)(1)(B). On notice that the dam removal entity is ready to commence removal of the J.C. Boyle Dam, the Secretary shall accept the transfer of title to the Keno Facility to the United States in accordance with section 7.5 of the Hydroelectric Settlement. On the transfer under subparagraph (A), and without further action by Congress— the Keno Facility shall— become part of the Klamath Reclamation Project; and be operated and maintained in accordance with the Federal reclamation laws and this Act; and the jurisdiction of the Commission over the Keno Facility shall terminate. On filing by PacifiCorp of an application for surrender of the East Side and West Side Developments in Project No. 2082, the Commission shall issue an order approving partial surrender of the license for Project No. 2082, including any reasonable and appropriate conditions, as provided in section 6.4.1 of the Hydroelectric Settlement. Not later than 60 days after the date of the transfer of title to the Iron Gate Facility to the dam removal entity, the Commission shall resume timely consideration of the pending licensing application for the Fall Creek development pursuant to the Federal Power Act ( 16 U.S.C. 791a et seq. ), regardless of whether PacifiCorp retains ownership of Fall Creek or transfers ownership to a new licensee. Notwithstanding section 8 of the Federal Power Act ( 16 U.S.C. 801 ), consistent with section 7.6.6 of the Hydroelectric Settlement title to the PacifiCorp hatchery facilities within the State of California shall be transferred to the State of California at— the time of transfer to the dam removal entity of title to the Iron Gate Dam; or such other time as may be agreed to by the parties to the Hydroelectric Settlement.

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Sec. 8

Hydroelectric facilities

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