Sec. 15. Off-site considerations in hydropower licensing
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Part I of the Federal Power Act ( 16 U.S.C. 792 et seq. ) (as amended by section 14) is amended by adding at the end the following: In this section: The terms conditioning agency and Federal authorization have the meanings given the terms in section 38(a). The term nonjurisdictional dam means any non-Federal dam, dike, embankment, or other barrier that— is constructed to hold back or divert water; and is not— licensed under this part; or exempted from the license requirements contained in this part.
The term off-site measure means any activity intended to mitigate the project effects by replacing or providing substitute resources or habitat at a location different from the project area. In discharging responsibilities under any Federal authorization for the protection of, mitigation of damage to, and enhancement of resources affected by a project, the Commission and conditioning agencies— shall consider and include in the public record off-site measures recommended by any licensing participant, including Federal resource agencies, State resource agencies Indian Tribes, and the public; but shall not require any off-site measure that is not proposed by the applicant.
An off-site measure under this subsection may include coordination with another project in the applicable basin. The adoption by the Commission or any conditioning agency of an off-site measure proposed by an applicant shall satisfy the applicable requirements of a Federal authorization that otherwise would be necessary or appropriate to mitigate a project effect associated with the project site, subject to the condition that the Commission and conditioning agencies shall give preference to onsite measures to achieve that mitigation.
Notwithstanding section 3(11), the land, infrastructure, improvements, and waters associated with any off-site mitigation measure shall not be required to be included as part of a project, subject to the condition that any off-site measure adopted under this section shall be included, implemented, and enforced as a license condition issued by the Commission under this part. The requirements of this subsection apply to any off-site measure that— includes removal of a nonjurisdictional dam; is proposed by an applicant; and is approved by the Commission or a conditioning agency under a Federal authorization.
Notwithstanding any other provision of Federal, State, Tribal, local, or common law, a licensee shall not be liable for any harm, loss, or other damage to an individual or entity, property, a natural resource, or the environment, or any damages resulting from dam removal, arising from, relating to, or triggered by an action associated with the removal of a nonjurisdictional dam under this section, including any damage caused by the release of any material or substance (including a hazardous substance), if the licensee and the owner of the nonjurisdictional dam or third party have entered into a legally enforceable agreement ensuring that the owner (or an assignee) or third party retains that liability.
Notwithstanding any other provision of Federal, State, local, or common law, no individual or entity contributing funds for removal of a nonjurisdictional dam under this section shall be held liable, solely by virtue of that funding, for any harm, loss, or other damage to an individual or entity, property, or the environment, or damages, arising from the removal of a facility or facility operations arising from, relating to, or triggered by an action associated with removal of the nonjurisdictional dam, including any damage caused by the release of any material or substance (including a hazardous substance).
Notwithstanding section 10(c), except as provided in subparagraph (B), protection from liability under this subsection shall preempt the law of any State or Indian Tribe to the extent that the State or Tribal law is inconsistent with this section. Nothing in this subsection limits any otherwise-available immunity, privilege, or defense under any other provision of law. Not later than 1 year after the date of enactment of the Community and Hydropwer Improvement Act , the Commission, after providing notice and an opportunity for public comment, shall promulgate regulations to implement the requirements of this section. .
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Sec. 15
Off-site considerations in hydropower licensing
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