Sec. 11. Promoting hydropower development at existing nonpowered dams
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Section 34 of the Federal Power Act ( 16 U.S.C. 823e ) is amended— by striking subsection (c); by redesignating subsections (a), (b), (d), (e), and
(f)as subsections (b), (c), (g), (a), and (h), respectively, and moving the subsections so as to appear in alphabetical order; in subsection
(a)(as so redesignated)— in paragraph (1)— in subparagraph (D), by striking and at the end; in subparagraph (E), by striking the period at the end and inserting ; and ; and by adding at the end the following: the Commission determines, after considering the notification of intent submitted by the applicant under subsection (e)(1), any supporting information, and comments received under subsection (e)(2)(A), and any consultation under subsection (e)(2)(B), that an expeditious licensing decision under this section is reasonably practicable, taking into consideration, as appropriate— whether any applicable environmental or dam safety considerations demonstrate that the qualifying nonpowered dam associated with the qualifying facility is likely to be removed during the term of a license; whether existing information establishes that the qualifying nonpowered dam associated with the qualifying facility will no longer serve an existing public purpose during the term of a license; whether any adverse resource effect associated with the qualifying nonpowered dam, including lack of fish passage, is— presently unmitigated; and likely to remain unmitigated under future operation; whether the licensing of the facility by the Commission has the potential to mitigate or enhance environmental conditions associated with the qualifying nonpowered dam associated with the qualifying facility, including any preliminary protection, mitigation, and enhancement measures identified by the applicant; whether the resource issues likely to be involved in the licensing process are unusual or complex; and whether information submitted with, or referenced in, the notification of intent is adequate to support the development of the license application. ; by striking paragraph
(2)and inserting the following: The term qualifying facility means a facility that— includes only— the power house, power tunnel, penstocks, and tailrace; any other water conveyance infrastructure connected directly to the powerhouse; each primary line transmitting power from the facility to the point of junction with the distribution system or the interconnected primary transmission system; and any other new, miscellaneous structures used and useful in connection with the facility; and is determined under this section to meet the qualifying criteria. Notwithstanding subparagraph (A)(i)(IV) and section 3(11), the term qualifying facility does not include, with respect to the complete unit of improvement or development of a facility described in subparagraph (A)— a dam or appurtenant work or structure (including a navigation structure); a dike; any other water retention or diversion infrastructure; an impoundment; a shoreline; an access road; or any recreational or other infrastructure associated with an existing nonpowered dam or impoundment. ; and in paragraph (3)— in the matter preceding subparagraph (A), by inserting Federal or non-Federal after means any ; and by striking subparagraph
(C)and inserting the following: that— for a non-Federal dam— as of October 23, 2018, is not generating electricity using any hydropower-generating facility that is— licensed under this part; or exempted from the license requirements contained in this part; and is regulated by an established dam safety program of the State in which the non-Federal dam is located; or for a Federal dam— is available for non-Federal power development; and is not equipped with power generating equipment; or has available incremental generation potential for non-Federal power development. ; in subsection
(b)(as so redesignated)— in the subsection heading, by inserting Certain after Process for ; in paragraph (1)— by striking As provided in this section, the Commission may issue and amend and inserting The Commission may issue ; and by inserting in accordance with this section before the period at the end; by striking paragraph
(2)and inserting the following: Not later than 180 days after the date of enactment of the Community and Hydropower Improvement Act , after consulting with the interagency task force under paragraph
(3)and providing notice and an opportunity for public comment, the Commission shall update regulations of the Commission for issuing licenses for qualifying facilities under this section. ; in paragraph (3)— in subparagraph (A)— by striking
(A)In establishing the expedited process and inserting the following: In updating regulations ; and by striking and Indian tribes and inserting , Indian Tribes, and the public ; and by striking subparagraph
(B)and inserting the following: Before issuing any proposed rule for public comment pursuant to paragraph (2), the Commission shall convene workshops and other meetings with the interagency task force under this paragraph to develop procedures that allow the Commission and appropriate Federal and State agencies and Indian Tribes to exercise authority in accordance with subsection (d). ; and by striking paragraph
(4)and inserting the following: The Commission shall issue a final decision regarding an application for a license for a qualifying facility submitted under subsection (e)(3) not later than 2 years after the date on which the Commission determines under subsection (e)(2) that the proposed hydroelectric facility that is the subject of the application is a qualifying facility. ; in subsection
(c)(as so redesignated)— by striking paragraph (2); by redesignating paragraph
(1)as paragraph (2); by inserting before paragraph
(2)(as so redesignated) the following: The rules and regulations of the Commission relating to the protection of life, health, and property shall apply to a qualifying facility licensed under this section, only with respect to the potential effects of the construction, operation, and maintenance of the qualifying facility on the safety of the applicable qualifying nonpowered dam. For any qualifying facility licensed at a non-Federal qualifying nonpowered dam, the applicable dam safety rules and regulations of the State in which the qualifying nonpowered dam is located shall apply to— the qualifying nonpowered dam; and any infrastructure associated with the qualifying nonpowered dam that is not a part of the qualifying facility that is the subject of the license. ; and by inserting after paragraph
(2)(as so redesignated) the following: Before issuing any license for a qualifying facility at a non-Federal qualifying nonpowered dam, the Commission shall— ensure that the qualifying nonpowered dam, and each other structure associated with the qualifying facility, is or will be consistent with the applicable dam safety standards of the Commission; and consult with the applicable dam regulator in the State in which the qualifying facility is located to ensure appropriate continued oversight of the qualifying nonpowered dam associated with the qualifying facility, and associated structures, over the term of the license. ; by inserting after subsection
(c)(as so redesignated) the following: Notwithstanding any other legal requirement pertaining to a qualifying facility licensed under this section, the Commission, Federal and State agencies, and Indian Tribes shall not impose any obligation in the licensing of the qualifying facility that would interfere with, or materially change or affect in any way, the storage, release, or flow operations of the qualifying nonpowered dam associated with the qualifying facility, other than the routing of release or flow operations through the qualifying facility. Notwithstanding any other legal requirement pertaining to a qualifying facility licensed under this section, the licensing of a qualifying facility under this section by the Commission shall not interfere with, or materially change or affect in any way, any other Federal, State, or Tribal authority pertaining to the storage, release, or flow operations applicable to the qualifying nonpowered dam associated with the qualifying facility, other than the routing of release or flow operations through the qualifying facility. The Commission shall include in any license issued pursuant to this section a condition prohibiting the licensee from materially changing the storage, release, or flow operations of a qualifying nonpowered dam associated with the qualifying facility for the sole purpose of improving the power value of the qualifying facility. The applicant for a qualifying facility shall commence the licensing process under this section by submitting to the Commission a notification of intent to file an application for a license, together with supporting information, which shall inform the determination of the Commission under paragraph (2). Not later than 90 days after the date on which an applicant submits to the Commission a notification of intent under paragraph (1), the Commission, after providing notice and an opportunity for public comment, shall— determine whether the proposed hydroelectric facility is a qualifying facility under this section; and include in a determination under clause
(i)information, including analyses supported by information in the public record, relating to the factual basis for the determination. In making a determination under subparagraph
(A)with respect to a proposed facility, the Commission shall consult with Federal and State agencies and Indian Tribes with authority over the facility regarding any qualifying criteria that may disqualify the facility from the expedited process under this section. If the Commission determines under subparagraph
(B)that any qualifying criteria potentially disqualify a proposed facility from the expedited process under this section, the Commission shall— seek to resolve any issues in advance of issuing a determination regarding whether the proposed facility is a qualifying facility under this paragraph; and include in a determination under clause
(i)information relevant to efforts to resolve the issues. After submitting a notification of intent under paragraph (1), an applicant for a qualifying facility shall submit to the Commission an application for a license under this section. An application under subparagraph
(A)shall include a description of each protection, mitigation, and enhancement measure proposed to be carried out in order for the applicable qualifying facility to receive a license from the Commission, in accordance with subsection (f). An application under this paragraph shall be submitted to the Commission not later than the later of— the date that is 30 days after the close of a single season of studies conducted in support of the application; and the date that is 1 year after the date on which a determination of the Commission is provided under paragraph (2). In determining whether to approve an application for a license for a qualifying facility under subsection (e)(3), in accordance with the deadline described in subsection (b)(4), the Commission, in consultation with applicable Federal and State resource agencies and Indian Tribes with regulatory responsibility for the qualifying facility, shall— use relevant existing studies, monitoring information, and data that are applicable to the relevant qualifying facility, in accordance with section 10(l); avoid duplicating current, existing studies; and design any new studies and information requirements to be consistent with the ability of the Commission to meet the licensing deadline under subsection (b)(4); consider whether obligations under the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq. ) may be met through— preparing an environmental assessment; or supplementing a previously prepared environmental assessment or environmental impact statement; develop a licensing process that reduces administrative burdens on resource agencies, Indian Tribes, the applicant, and the public by avoiding unnecessary paperwork, meetings, and other process obligations, subject to the condition that nothing in this paragraph eliminates any applicable consultation requirement under Federal or State law (including regulations); exercise authorities commensurate with the limited unit of development and improvement for a qualifying facility described in subsection (a)(2)(A)(i), recognizing— the existence of infrastructure at the time of the license application; and that ongoing operations of existing infrastructure, including water releases, will be materially unchanged as a result of the development and operation of the qualifying facility, in accordance with subsection (d); and consider a set of standard license terms and conditions that generally would apply to all qualifying facilities licensed under this section, based on common technical considerations and environmental effects, subject to the condition that the development of standard license terms and conditions shall not limit the imposition of facility-specific conditions for any particular qualifying facility. ; and in subsection
(h)(as so redesignated)— in paragraph (1), by striking and at the end; in paragraph (2), by striking the period at the end and inserting ; or ; and by adding at the end the following: any applicable State or Tribal law relating to a qualifying nonpowered dam, dike, conduit, impoundment, or shoreline, or any land or infrastructure associated with such qualifying nonpowered dam, that is not a component of a license issued pursuant to this section, including such a law relating to dam safety, property ownership and control, public access and safety, or the appropriation, use, or distribution of water at the qualifying nonpowered dam. .
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