Sec. 243. Hydropower licensing and process improvements

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Part I of the Federal Power Act ( 16 U.S.C. 792 et seq.) is amended by adding at the end the following: In this section, the term Federal authorization — means any authorization required under Federal law with respect to an application for a license under this part; and includes any conditions, prescriptions, permits, special use authorizations, certifications, opinions, or other approvals as may be required under Federal law to approve or implement the license under this part.

The Commission shall act as the lead agency for the purposes of complying with the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.) with respect to an application for a license under this part. Not later than 90 days after the date of enactment of this section the Commission, the Secretary of Agriculture, the Administrator of the National Oceanic and Atmospheric Administration, and the Secretary of the Interior shall enter into a negotiated rulemaking pursuant to subchapter III of chapter 5 of title 5, United States Code, to develop and publish a rule providing a process for the Commission to evaluate, and issue a final decision on, a completed application for a license under this part.

The negotiated rulemaking committee established pursuant to the negotiated rulemaking process entered into under paragraph

(1)shall include representatives of State and Indian tribal governments, and other stakeholders who will be significantly affected by a rule issued under this subsection. Not later than 2 years after the date of enactment of this section, the Commission shall publish a proposed rule resulting from the negotiated rulemaking under this subsection. Not later than 3 years after the date of enactment of this section, the Commission shall publish a final rule resulting from the negotiated rulemaking under this subsection. In publishing a rule under this subsection, the Commission shall ensure that— the rule includes a description of the Commission’s responsibility as the lead agency in coordinating Federal authorizations; the rule includes a process for development of a schedule for the review and disposition of a completed application for a license under this part; each schedule developed pursuant to such process shall— include deadlines for actions on the applicable completed application— that are consistent with the duties of each agency under this Act and under applicable State, tribal, and other Federal laws; and by— each Federal agency responsible for a Federal authorization; each State agency, local government, or Indian tribe that may consider an aspect of an application for a Federal authorization or is responsible for conducting any separate permitting and environmental reviews of the applicable project; the applicant; the Commission; and other participants in a license proceeding; facilitate the identification and completion of Federal, State, and tribal agency-requested studies, reviews, and any other procedures required to be conducted prior to, or concurrent with, the preparation of the Commission’s environmental review required under the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.), to the extent practicable; and provide for a final decision on the applicable completed application to be made by not later than 3 years after the date on which the Commission receives such completed application; the rule includes a mechanism for resolving issues of concern that may delay the completion of a license application or review of a completed application; the rule includes a definition of a completed application; and the rule provides for an opportunity for public notice and comment on— a completed application; and the schedule developed for the review and disposition of the application. The Commission, Federal, State, and local government agencies, and Indian tribes may allow an applicant seeking a Federal authorization to fund a third-party contractor selected by such an agency or tribe to assist in reviewing the application. All costs of an agency or tribe incurred pursuant to direct funding by the applicant, including all costs associated with the third-party contractor, shall not be considered costs of the United States for the administration of this part under section 10(e). The Commission may forward any issue of concern that has delayed either the completion of the application or the issuance of a license for a completed application beyond the deadline set forth in the schedule established under the final rule published under subsection

(c)to the heads of the relevant State, Federal, or Indian tribal agencies for resolution. If the Commission forwards an issue of concern to the head of a relevant agency, the Commission and the relevant agency shall enter into a memorandum of understanding to facilitate interagency coordination and resolution of the issue of concern, as appropriate. Nothing in this section— expands or limits the application of any power or authority vested in an agency, State, or Indian tribe by any applicable law or regulation; shall be construed to affect any requirements of State, tribal, or other Federal law (including under the Federal Water Pollution Control Act, the Fish and Wildlife Coordination Act, the Endangered Species Act of 1973, section 14 of the Act of March 3, 1899 (commonly known as the Rivers and Harbors Appropriation Act of 1899), the Coastal Zone Management Act of 1972, the Magnuson-Stevens Fishery Conservation and Management Act, and those provisions in subtitle III of title 54, United States Code, commonly known as the National Historic Preservation Act) with respect to an application for a license under this part; or abrogates, diminishes, or otherwise affects any treaty or other right of any Indian tribe. To facilitate the timely and efficient completion of the license proceedings under this part, the Commission shall, in consultation with applicable Federal and State agencies and interested members of the public— compile current and accepted best practices in performing studies required in such license proceedings, including methodologies and the design of studies to assess the full range of environmental impacts of a project that reflect the most recent peer-reviewed science; compile a comprehensive collection of studies and data accessible to the public that could be used to inform license proceedings under this part; and encourage license applicants, agencies, and Indian tribes to develop and use, for the purpose of fostering timely and efficient consideration of license applications, a limited number of open-source methodologies and tools applicable across a wide array of projects, including water balance models and streamflow analyses. To the extent practicable, the Commission and other Federal, State, and local government agencies and Indian tribes considering an aspect of an application for Federal authorization (as defined in section 37) shall use relevant, existing studies and data and avoid duplicating such studies that are applicable to the project. Studies repeated for the purpose of characterizing seasonal or annual variation of a relevant characteristic or resource shall not be considered duplicative. In this section: The term expedited license amendment process means an expedited process for issuing an amendment to an existing license issued under this part for a project. The term qualifying project upgrade means a change— to a project; and that meets the criteria under subsection (b). To improve the regulatory process and reduce the time and cost of making upgrades to existing projects, the Commission shall investigate the feasibility of implementing an expedited license amendment process for a change to a project that meets the following criteria: The change to the project— is limited to the power house equipment of the project; or will result in environmental protection, mitigation, or enhancement measures to benefit fish and wildlife resources or other natural or cultural resources. The change to the project is unlikely to adversely affect any species listed as threatened or endangered under the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq.), as determined by the Secretary of the Interior. The Commission ensures, in accordance with section 7 of the Endangered Species Act of 1973 ( 16 U.S.C. 1536 ), that the change to the project will not result in the destruction or modification of critical habitat. The change to the project is consistent with any applicable comprehensive plan under section 10(a). The change to the project is unlikely to adversely affect water quality and water supply, as determined in consultation with any applicable State or Indian tribe. Any adverse environmental effects resulting from the change to the project will be insignificant. The Commission shall— not later than 60 days after the date of enactment of this section, hold an initial workshop to solicit public comment and recommendations on how to implement an expedited license amendment process for qualifying project upgrades; evaluate pending applications for an amendment to an existing license of a project for a qualifying project upgrade that may benefit from an expedited license amendment process; not later than 180 days after the date of enactment of this section, identify and solicit participation by project developers in, and begin implementation of, a 3-year pilot program to evaluate the feasibility and utility of an expedited license amendment process for qualifying project upgrades; and not later than 3 months after the end of the 3-year pilot program under paragraph (3), hold a final workshop to solicit public comment on the expedited license amendment process. The Commission shall, to the extent practicable, enter into a memorandum of understanding with any applicable Federal, State, or tribal agency to implement the pilot program described in subsection (c). Not later than 3 months after the date of the final workshop held pursuant to subsection (c)(4), the Commission shall submit to the Committee on Energy and Commerce of the House of Representatives and the Committee on Energy and Natural Resources of the Senate a report that includes— a summary of the public comments received as part of the initial workshop held under subsection (c)(1); a summary of the public comments received as part of the final workshop held under subsection (c)(4); a description of the expedited license amendment process for qualifying project upgrades evaluated under the pilot program, including— a description of the procedures or requirements that were waived under the expedited license amendment process; and a comparison between— the average amount of time required to complete the licensing process for an amendment to a license under the expedited license amendment process tested under the pilot program; and the average amount of time required to complete the licensing process for a similar amendment to a license under current Commission processes; the number of requests received by the Commission to participate in the expedited license amendment process for qualifying project upgrades; a description of changes to Commission rules required to create and standardize an expedited license amendment process for qualifying project upgrades; and a description of factors that prevented any participant in the pilot program from completing the expedited license amendment process in the expedited timeframe. If the Commission determines, based upon the workshops and results of the pilot program under subsection (c), that an expedited license amendment process will reduce the time and costs for issuing amendments to licenses for qualifying project upgrades, the Commission shall revise its policies and regulations, in accordance with applicable law, to establish an expedited license amendment process. In carrying out subsection (f), the Commission shall solicit and consider public comments before finalizing any change to policies or regulations. . In this subsection: The term Commission means the Federal Energy Regulatory Commission. The term project has the meaning given such term in section 3 of the Federal Power Act ( 16 U.S.C. 796 ). Not later than 3 months after the date of enactment of this Act, the Commission shall hold a workshop to solicit public comment and recommendations on how to implement a pilot program described in paragraph (3). The Commission shall establish a voluntary pilot program to enable the Commission to consider multiple projects together in a consolidated licensing process in order to issue a license under part I of the Federal Power Act ( 16 U.S.C. 792 et seq.) for each such project. Not later than 1 year after the date of enactment of this Act, the Commission, in consultation with the head of any applicable Federal or State agency or Indian Tribe and licensees, shall identify and solicit candidate projects to participate in the pilot program established under paragraph (3). In order to participate in such pilot program a project shall meet the following criteria: The current license for the project expires between 2021 and 2030 or the project is not licensed under part I of the Federal Power Act ( 16 U.S.C. 792 et seq.). The project is located within the same watershed as other projects that are eligible to participate in the pilot program. The project is located in sufficiently close proximity and has environmental conditions that are sufficiently similar to other projects that are eligible to participate in the pilot program so that watershed-wide studies and information may be developed, thereby significantly reducing the need for, and scope of, individual project-level studies and information. The Commission may designate a group of projects to be considered together in a consolidated licensing process under the pilot program established under paragraph (3). The Commission may designate such a group only if each licensee (or applicant) for a project in the group, on a voluntary basis and in writing, agrees— to participate in the pilot program; and to a cost-sharing arrangement with other licensees (or applicants) and applicable Federal and State agencies with respect to the conduct of watershed-wide studies to be considered in support of the license applications for the group of projects. The Commission may change the term of any existing license for an individual licensee in a group designated under paragraph

(5)by up to 5 years— to provide sufficient time to develop a consolidated study plan for— studies for individual projects in the group, as necessary; and relevant watershed-wide studies for purposes of the consolidated licensing process under the pilot program established under paragraph

(3)that will be applicable to each project in the group; and to align the terms of the existing licenses such that they expire on the same date. The Commission shall, to the extent practicable, enter into a memorandum of understanding with any applicable Federal or State agency or Indian Tribe to implement the pilot program established under paragraph (3). Not later than 3 months after the date of the initial workshop held pursuant to paragraph (2), the Commission shall submit to the Committee on Energy and Commerce of the House of Representatives and the Committee on Energy and Natural Resources of the Senate a report that includes— a summary of the public comments received as part of such initial workshop; and a preliminary plan for identifying and soliciting participants in the pilot program established under paragraph (3). Not later than 4 years after the establishment of the pilot program under paragraph (3), the Commission shall submit to the Committee on Energy and Commerce of the House of Representatives and the Committee on Energy and Natural Resources of the Senate a report that includes— a description of the status of the pilot program, including a description of the individual projects that are participating in the pilot program and the watersheds in which such projects are located; or if no projects are participating in the pilot program, a summary of any barriers the Commission has identified to proceeding with the pilot program and the reasons provided by potential participants for their preference for using an individual license process. Part I of the Federal Power Act ( 16 U.S.C. 792 et seq.) is further amended by adding at the end the following new section: Interagency communications relating to the preparation of environmental documents under the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.) with respect to an application for a license under this part, or to the licensing process for a license under this part, shall not be considered to be ex parte communications under Commission rules. Interagency cooperation, at any time, in the preparation of environmental documents under the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.) with respect to an application for a license under this part, or in the licensing process for a license under this part, shall not preclude an agency from participating in a licensing proceeding under this part. Notwithstanding subsection (a), to the extent the Commission determines necessary, the Commission may require Federal and State agencies participating as cooperating agencies under the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.) to demonstrate a separation of staff that are cooperating with the Commission with respect to a proceeding under this part from staff that may participate in an intervention in the applicable proceeding. . Section 33(a)(2)(B) of the Federal Power Act ( 16 U.S.C. 823d(a)(2)(B) ) is amended, in the matter preceding clause (i), by inserting deemed necessary before by the Secretary . Section 4(e) of the Federal Power Act ( 16 U.S.C. 797(e) ) is amended by striking adequate protection and utilization of such reservation and all that follows through That no license affecting the navigable capacity and inserting adequate protection and utilization of such reservation. The license applicant and any party to the proceeding shall be entitled to a determination on the record, after opportunity for an agency trial-type hearing of no more than 90 days, on any disputed issues of material fact with respect to such conditions. All disputed issues of material fact raised by any party shall be determined in a single trial-type hearing to be conducted by the relevant resource agency in accordance with the regulations promulgated under this subsection and within the timeframe established by the Commission for each license proceeding. Within 90 days of the date of enactment of the Energy Policy Act of 2005, the Secretaries of the Interior, Commerce, and Agriculture shall establish jointly, by rule, the procedures for such expedited trial-type hearing, including the opportunity to undertake discovery and cross-examine witnesses, in consultation with the Federal Energy Regulatory Commission: . Provided further, That no license affecting the navigable capacity Not later than one year after the date of enactment of this Act, the Federal Energy Regulatory Commission and the Secretary of the Interior shall prepare, in consultation with interested Indian Tribes, licensees under part I of the Federal Power Act, and the public, a guidance document that identifies best practices for the Commission, Federal and State resource agencies, Indian Tribes, and applicants for licenses under part I of the Federal Power Act for effective engagement of Indian Tribes in the consideration of applications for licenses under part I of the Federal Power Act that may affect an Indian reservation, a treaty, or other right of an Indian Tribe. The Commission and Secretary shall update the guidance document prepared under subparagraph

(A)every 10 years. In preparing or updating the guidance document, the Commission and the Secretary shall convene public meetings at different locations in the United States, and shall provide an opportunity for written public comments. Not later than one year after preparing or updating the guidance document under paragraph (1), the Commission shall convene public workshops, held at different locations in the United States, to inform and educate Commission staff, Federal and State resource agencies, Indian Tribes, applicants for licenses under part I of the Federal Power Act, and interested members of the public, on the best practices identified in the guidance document. In preparing the agenda for such workshops, the Commission shall consult with the Secretary of the Interior, interested Indian Tribes, and licensees under part I of the Federal Power Act. Section 4 of the Federal Power Act ( 16 U.S.C. 797 ) is amended— in subsection (e), in the first proviso, by inserting , or, in the case of tribal land, subject to subsection (h), the Indian tribe having jurisdiction over the tribal land, after under whose supervision such reservation falls ; and by adding at the end the following: An Indian tribe may deem conditions necessary under the first proviso of subsection

(e)only if the Secretary of the Interior (referred to in this subsection as the Secretary ) determines that the Indian tribe has— confirmed the intent of the Indian tribe to deem conditions necessary under the first proviso of subsection

(e)by resolution or other official action by the governing body of the Indian tribe; demonstrated financial stability and financial management capability over the 3-fiscal-year period preceding the date of the determination of the Secretary under this paragraph; and demonstrated the ability to plan, conduct, and administer all services, functions, and activities that would otherwise be administered by the Secretary with respect to deeming conditions necessary on tribal land under the first proviso of subsection (e). On request of an Indian tribe, not later than 1 year after the date on which the Secretary receives the request, the Secretary shall make the determination under paragraph (1). Subject to subparagraph (B), if the Secretary determines that an Indian tribe no longer meets the criteria under paragraph (1), the Secretary may withdraw the determination under paragraph (2). Before withdrawing a determination under subparagraph (A), the Secretary shall provide to the Indian tribe— notice of the proposed withdrawal; and an opportunity to respond and, if necessary, redress the deficiencies identified by the Secretary. . Section 33(a) of the Federal Power Act ( 16 U.S.C. 823d(a) ) is amended— in paragraph (1), by inserting or an Indian tribe before deems a condition ; in paragraph (2), by inserting or Indian tribe after the Secretary each place it appears; in paragraph (3), by inserting or Indian tribe after the Secretary each place it appears; in paragraph (4)— by inserting or Indian tribe before concerned shall submit ; by inserting or Indian tribe before gave equal consideration ; by inserting or Indian tribe after may be available to the Secretary ; by inserting or Indian tribe before shall also submit, ; and by striking available to the Secretary and relevant to the Secretary's decision and inserting available to the Secretary or Indian tribe and relevant to the decision of the Secretary or Indian tribe ; and in paragraph (5)— by striking Secretary's final condition and inserting final condition of the Secretary or Indian tribe ; by inserting or Indian tribe after consult with the Secretary ; by inserting or Indian tribe before may accept the Dispute Resolution ; by inserting or Indian tribe after advisory unless the Secretary ; by inserting or Indian tribe before shall submit the advisory and ; and by striking Secretary's final written determination and inserting final written determination of the Secretary or Indian tribe . Section 18 of the Federal Power Act ( 16 U.S.C. 811 ) is amended by inserting after the Secretary of Commerce. the following: In prescribing a fishway, the Secretary of Commerce or the Secretary of the Interior, as appropriate, shall consider the threat of invasive species. .

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Sec. 243

Hydropower licensing and process improvements

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