[House Report 115-391]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 115-391
======================================================================
PROVIDING FOR CONSIDERATION OF THE BILL (H.R. 3043) TO MODERNIZE
HYDROPOWER POLICY, AND FOR OTHER PURPOSES, AND PROVIDING FOR
CONSIDERATION OF THE BILL (H.R. 3441) TO CLARIFY THE TREATMENT OF TWO
OR MORE EMPLOYERS AS JOINT EMPLOYERS UNDER THE NATIONAL LABOR RELATIONS
ACT AND THE FAIR LABOR STANDARDS ACT OF 1938
_______
November 6, 2017.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Byrne, from the Committee on Rules,
submitted the following
R E P O R T
[To accompany H. Res. 607]
The Committee on Rules, having had under consideration
House Resolution 607, by a record vote of 9 to 2, report the
same to the House with the recommendation that the resolution
be adopted.
SUMMARY OF PROVISIONS OF THE RESOLUTION
The resolution provides for consideration of H.R. 3043, the
Hydropower Policy Modernization Act of 2017, under a structured
rule. The resolution provides one hour of general debate
equally divided and controlled by the chair and ranking
minority member of the Committee on Energy and Commerce. The
resolution waives all points of order against consideration of
the bill. The resolution makes in order as original text for
the purpose of amendment the amendment in the nature of a
substitute recommended by the Committee on Energy and Commerce
now printed in the bill, and provides that it shall be
considered as read. The resolution waives all points of order
against that amendment in the nature of a substitute. The
resolution makes in order only those further amendments printed
in this report. Each such amendment may be offered only in the
order printed in this report, may be offered only by a Member
designated in this report, shall be considered as read, shall
be debatable for the time specified in this report equally
divided and controlled by the proponent and an opponent, shall
not be subject to amendment, and shall not be subject to a
demand for division of the question in the House or in the
Committee of the Whole. The resolution waives all points of
order against the amendments printed in this report. The
resolution provides one motion to recommit with or without
instructions.
Section 2 of the resolution provides for consideration of
H.R. 3441, the Save Local Business Act, under a closed rule.
The resolution provides one hour of debate equally divided and
controlled by the chair and ranking minority member of the
Committee on Education and the Workforce. The resolution waives
all points of order against consideration of the bill. The
resolution provides that the amendment in the nature of a
substitute recommended by the Committee on Education and the
Workforce now printed in the bill shall be considered as
adopted and that the bill, as amended, shall be considered as
read. The resolution waives all points of order against
provisions in the bill, as amended. The resolution provides one
motion to recommit with or without instructions.
EXPLANATION OF WAIVERS
Although the resolution waives all points of order against
consideration of H.R. 3043, the Committee is not aware of any
points of order. The waiver is prophylactic in nature.
Although the resolution waives all points of order against
the amendment in the nature of a substitute to H.R. 3043 made
in order as original text, the Committee is not aware of any
points of order. The waiver is prophylactic in nature.
Although the resolution waives all points of order against
the amendments to H.R. 3043 printed in this report, the
Committee is not aware of any points of order. The waiver is
prophylactic in nature.
Although the resolution waives all points of order against
consideration of H.R. 3441, the Committee is not aware of any
points of order. The waiver is prophylactic in nature.
Although the resolution waives all points of order against
provisions in H.R. 3441, as amended, the Committee is not aware
of any points of order. The waiver is prophylactic in nature.
COMMITTEE VOTES
The results of each record vote on an amendment or motion
to report, together with the names of those voting for and
against, are printed below:
Rules Committee record vote No. 137
Motion by Ms. Slaughter to provide H.R. 3441 and H.R. 3043
each an open rule. Defeated: 2-9
----------------------------------------------------------------------------------------------------------------
Majority Members Vote Minority Members Vote
----------------------------------------------------------------------------------------------------------------
Mr. Cole........................................ Nay Ms. Slaughter..................... Yea
Mr. Woodall..................................... Nay Mr. McGovern...................... Yea
Mr. Burgess..................................... Nay Mr. Hastings of Florida........... ............
Mr. Collins..................................... Nay Mr. Polis......................... ............
Mr. Byrne....................................... Nay
Mr. Newhouse.................................... Nay
Mr. Buck........................................ Nay
Ms. Cheney...................................... Nay
Mr. Sessions, Chairman.......................... Nay
----------------------------------------------------------------------------------------------------------------
Rules Committee record vote No. 138
Motion by Mr. Cole to report the rule. Adopted: 9-2
----------------------------------------------------------------------------------------------------------------
Majority Members Vote Minority Members Vote
----------------------------------------------------------------------------------------------------------------
Mr. Cole........................................ Yea Ms. Slaughter..................... Nay
Mr. Woodall..................................... Yea Mr. McGovern...................... Nay
Mr. Burgess..................................... Yea Mr. Hastings of Florida........... ............
Mr. Collins..................................... Yea Mr. Polis......................... ............
Mr. Byrne....................................... Yea
Mr. Newhouse.................................... Yea
Mr. Buck........................................ Yea
Ms. Cheney...................................... Yea
Mr. Sessions, Chairman.......................... Yea
----------------------------------------------------------------------------------------------------------------
SUMMARY OF THE AMENDMENTS TO H.R. 3043 MADE IN ORDER
1. Pocan (WI), Grothman (WI): Requires the U.S. Department
of Interior consider the threat of invasive species when it
makes decisions on hydropower licensing. (10 minutes)
2. Babin (TX): Allows FERC to examine the licenses of any
project located in an area that was declared by the President
to be a disaster area in 2017. (10 minutes)
3. Jenkins, Evan (WV): Ensures that when hydro projects
have an existing Memorandum of Understanding for non-federal
hydropower with FERC that all relevant federal agencies are
authorized to fully study and review the potential expansion of
non-federal hydropower, including a review of seasonal pool
levels and slowing flood releases. (10 minutes)
4. Rush (IL): (SUBSTITUTE) Adds a new section to the
Federal Power Act (FPA) to improve the hydropower licensing
process. It directs the Commission and the Federal resource
agencies to convene a negotiated rulemaking within 90 days of
enactment with state and local government representatives,
Indian tribes, and stakeholders to develop a process that will
coordinate all necessary Federal authorizations and enable the
Commission to make a final decision on a license not later than
3 years of receiving a completed license application. (10
minutes)
TEXT OF AMENDMENTS TO H.R. 3043 MADE IN ORDER
1. An Amendment To Be Offered by Representative Pocan of Wisconsin or
His Designee, Debatable for 10 Minutes
At the end of the bill, add the following new section:
SEC. 5. CONSIDERATION OF INVASIVE SPECIES.
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.''.
----------
2. An Amendment To Be Offered by Representative Babin of Texas or His
Designee, Debatable for 10 Minutes
At the end of the bill, add the following new section:
SEC. 5. EXAMINATION OF LICENSES FOR PROJECTS LOCATED IN DISASTER AREAS.
Not later than one year after the date of enactment of this
Act, the Federal Energy Regulatory Commission may examine the
license issued by the Commission under part I of the Federal
Power Act for any project that is located in an area that was
declared by the President to be a disaster area in 2017.
----------
3. An Amendment To Be Offered by Representative Jenkins of West
Virginia or His Designee, Debatable for 10 Minutes
At the end of the bill, add the following new section:
SEC. 5. STUDIES FOR NON-FEDERAL HYDROPOWER.
Notwithstanding any other provision of law, if the Federal
Energy Regulatory Commission has in place a memorandum of
understanding with another Federal agency for non-federal
hydropower with respect to a project licensed under part I of
the Federal Power Act (regardless of explicit Congressional
authorization for such non-federal hydropower), the other
Federal agency may fully study and review the potential
expansion of such non-federal hydropower at the project,
including a review of seasonal pool levels and slowing flood
releases.
----------
4. An Amendment To Be Offered by Representative Rush of Illinois or His
Designee, Debatable for 10 Minutes
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Hydropower Policy
Modernization Act of 2017''.
SEC. 2. HYDROPOWER REGULATORY IMPROVEMENTS.
(a) Sense of Congress on the Use of Hydropower Renewable
Resources.--It is the sense of Congress that--
(1) hydropower is a renewable resource for purposes
of all Federal programs and is an essential source of
energy in the United States; and
(2) the United States should increase substantially
the capacity and generation of clean, renewable
hydropower that would improve environmental quality in
the United States.
(b) Modifying the Definition of Renewable Energy to Include
Hydropower.--Section 203 of the Energy Policy Act of 2005 (42
U.S.C. 15852) is amended--
(1) in subsection (a), by amending paragraphs (1)
through (3) to read as follows:
``(1) Not less than 17 percent in fiscal years 2017
through 2019.
``(2) Not less than 20 percent in fiscal years 2020
through 2024.
``(3) Not less than 25 percent in fiscal year 2025
and each fiscal year thereafter.''; and
(2) in subsection (b), by striking paragraph (2) and
inserting the following:
``(2) Renewable energy.--The term `renewable energy'
means electric energy generated from solar, wind,
biomass, landfill gas, ocean (including tidal, wave,
current, and thermal), geothermal, or municipal solid
waste, or from a hydropower project.''.
(c) Preliminary Permits.--Section 5 of the Federal Power Act
(16 U.S.C. 798) is amended--
(1) in subsection (a), by striking ``three'' and
inserting ``4''; and
(2) by amending subsection (b) to read as follows:
``(b) The Commission may--
``(1) extend the period of a preliminary permit once
for not more than 4 additional years beyond the 4 years
permitted by subsection (a) if the Commission finds
that the permittee has carried out activities under
such permit in good faith and with reasonable
diligence; and
``(2) if the period of a preliminary permit is
extended under paragraph (1), extend the period of such
preliminary permit once for not more than 4 additional
years beyond the extension period granted under
paragraph (1), if the Commission determines that there
are extraordinary circumstances that warrant such
additional extension.''.
(d) Time Limit for Construction of Project Works.--Section 13
of the Federal Power Act (16 U.S.C. 806) is amended in the
second sentence by striking ``once but not longer than two
additional years'' and inserting ``for not more than 8
additional years,''.
(e) Considerations for Relicensing Terms.--Section 15(e) of
the Federal Power Act (16 U.S.C. 808(e)) is amended--
(1) by striking ``(e) Except'' and inserting the
following:
``(e) License Term on Relicensing.--
``(1) In general.--Except''; and
(2) by adding at the end the following:
``(2) Consideration.--In determining the term of a
license under paragraph (1), the Commission shall
consider project-related investments by the licensee
over the term of the existing license (including any
terms under annual licenses) that resulted in new
development, construction, capacity, efficiency
improvements, or environmental measures, but which did
not result in the extension of the term of the license
by the Commission.''.
SEC. 3. HYDROPOWER LICENSING AND PROCESS IMPROVEMENTS.
(a) Hydropower Licensing and Process Improvements.--Part I of
the Federal Power Act (16 U.S.C. 792 et seq.) is amended by
adding at the end the following:
``SEC. 34. HYDROPOWER LICENSING AND PROCESS IMPROVEMENTS.
``(a) Definition.--In this section, the term `Federal
authorization'--
``(1) means any authorization required under Federal
law with respect to an application for a license under
this part; and
``(2) 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.
``(b) Designation as Lead Agency.--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.
``(c) Rulemaking to Establish Process to Set Schedule.--
``(1) Negotiated rulemaking.--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.
``(2) Negotiated rulemaking committee.--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.
``(3) Deadlines.--
``(A) Proposed rule.--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.
``(B) Final rule.--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.
``(4) Elements of rule.--In publishing a rule under
this subsection, the Commission shall ensure that--
``(A) the rule includes a description of the
Commission's responsibility as the lead agency
in coordinating Federal authorizations;
``(B) 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;
``(C) each schedule developed pursuant to
such process shall--
``(i) include deadlines for actions
on the applicable completed
application--
``(I) that are consistent
with the duties of each agency
under this Act and under
applicable State, tribal, and
other Federal laws; and
``(II) by--
``(aa) each Federal
agency responsible for
a Federal
authorization;
``(bb) 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;
``(cc) the applicant;
``(dd) the
Commission; and
``(ee) other
participants in a
license proceeding;
``(ii) 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
``(iii) 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;
``(D) 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;
``(E) the rule includes a definition of a
completed application; and
``(F) the rule provides for an opportunity
for public notice and comment on--
``(i) a completed application; and
``(ii) the schedule developed for the
review and disposition of the
application.
``(d) Application Processing.--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).
``(e) Issue Resolution.--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.
``(f) No Effect on Other Laws.--Nothing in this section--
``(1) expands or limits the application of any power
or authority vested in an agency, State, or Indian
tribe by any applicable law or regulation;
``(2) 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
``(3) abrogates, diminishes, or otherwise affects any
treaty or other right of any Indian tribe.
``SEC. 35. LICENSING STUDY IMPROVEMENTS.
``(a) In General.--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--
``(1) 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;
``(2) compile a comprehensive collection of studies
and data accessible to the public that could be used to
inform license proceedings under this part; and
``(3) 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.
``(b) Use of Studies.--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
34) 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.
``SEC. 36. EVALUATION OF EXPEDITED LICENSING FOR QUALIFYING PROJECT
UPGRADES.
``(a) Definitions.--In this section:
``(1) Expedited license amendment process.--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.
``(2) Qualifying project upgrade.--The term
`qualifying project upgrade' means a change--
``(A) to a project; and
``(B) that meets the criteria under
subsection (b).
``(b) In General.--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:
``(1) The change to the project--
``(A) is limited to the power house equipment
of the project; or
``(B) will result in environmental
protection, mitigation, or enhancement measures
to benefit fish and wildlife resources or other
natural or cultural resources.
``(2) 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.
``(3) 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.
``(4) The change to the project is consistent with
any applicable comprehensive plan under section 10(a).
``(5) 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.
``(6) Any adverse environmental effects resulting
from the change to the project will be insignificant.
``(c) Workshops and Pilots.--The Commission shall--
``(1) 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;
``(2) 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;
``(3) 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
``(4) 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.
``(d) Memorandum of Understanding.--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).
``(e) Reports.--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--
``(1) a summary of the public comments received as
part of the initial workshop held under subsection
(c)(1);
``(2) a summary of the public comments received as
part of the final workshop held under subsection
(c)(4);
``(3) a description of the expedited license
amendment process for qualifying project upgrades
evaluated under the pilot program, including--
``(A) a description of the procedures or
requirements that were waived under the
expedited license amendment process;
``(B) a comparison between--
``(i) 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
``(ii) the average amount of time
required to complete the licensing
process for a similar amendment to a
license under current Commission
processes;
``(4) the number of requests received by the
Commission to participate in the expedited license
amendment process for qualifying project upgrades;
``(5) a description of changes to Commission rules
required to create and standardize an expedited license
amendment process for qualifying project upgrades;
``(6) a description of factors that prevented any
participant in the pilot program from completing the
expedited license amendment process in the expedited
time frame.
``(f) Implementation.--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.
``(g) Public Input.--In carrying out subsection (f), the
Commission shall solicit and consider public comments before
finalizing any change to policies or regulations.''.
SEC. 4. PILOT PROGRAM FOR CONSOLIDATED LICENSING PROCESS FOR INTRA-
WATERSHED PROJECTS.
(a) Definitions.--In this section:
(1) Commission.--The term ``Commission'' means the
Federal Energy Regulatory Commission.
(2) Project.--The term ``project'' has the meaning
given such term in section 3 of the Federal Power Act
(16 U.S.C. 796).
(b) Initial Workshop.--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 subsection (c).
(c) Establishment of Pilot Program.--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.
(d) Candidate Project Identification.--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 subsection (c). In order to participate in
such pilot program a project shall meet the following criteria:
(1) The current license for the project expires
between 2019 and 2029 or the project is not licensed
under part I of the Federal Power Act (16 U.S.C. 792 et
seq.).
(2) The project is located within the same watershed
as other projects that are eligible to participate in
the pilot program.
(3) 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.
(e) Designation of Individual Projects as a Single Group.--
The Commission may designate a group of projects to be
considered together in a consolidated licensing process under
the pilot program established under subsection (c). 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--
(1) to participate in the pilot program; and
(2) 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.
(f) Project License Terms.--The Commission may change the
term of any existing license for an individual licensee in a
group designated under subsection (e) by up to 5 years--
(1) to provide sufficient time to develop a
consolidated study plan for--
(A) studies for individual projects in the
group, as necessary; and
(B) relevant watershed-wide studies for
purposes of the consolidated licensing process
under the pilot program established under
subsection (c) that will be applicable to each
project in the group; and
(2) to align the terms of the existing licenses such
that they expire on the same date.
(g) Memorandum of Understanding.--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
subsection (c).
(h) Initial Report.--Not later than 3 months after the date
of the initial workshop held pursuant to subsection (b), 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--
(1) a summary of the public comments received as part
of such initial workshop; and
(2) a preliminary plan for identifying and soliciting
participants in the pilot program established under
subsection (c).
(i) Interim Report.--Not later than 4 years after the
establishment of the pilot program under subsection (c), 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--
(1) 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
(2) 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.
SEC. 5. INTERAGENCY COMMUNICATIONS AND COOPERATION.
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:
``SEC. 37. INTERAGENCY COMMUNICATIONS AND COOPERATION.
``(a) Ex Parte Communications.--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.
``(b) Participation in Proceedings.--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.
``(c) Separation of Staff.--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.''.
SEC. 6. HYDROELECTRIC PRODUCTION INCENTIVES AND EFFICIENCY
IMPROVEMENTS.
(a) Hydroelectric Production Incentives.--Section 242 of the
Energy Policy Act of 2005 (42 U.S.C. 15881) is amended--
(1) in subsection (c), by striking ``10'' and
inserting ``20'';
(2) in subsection (f), by striking ``20'' and
inserting ``30''; and
(3) in subsection (g), by striking ``each of the
fiscal years 2006 through 2015'' and inserting ``each
of fiscal years 2017 through 2026''.
(b) Hydroelectric Efficiency Improvement.--Section 243(c) of
the Energy Policy Act of 2005 (42 U.S.C. 15882(c)) is amended
by striking ``each of the fiscal years 2006 through 2015'' and
inserting ``each of fiscal years 2017 through 2026''.''.
SEC. 7. TECHNICAL AMENDMENTS.
(a) Alternative Conditions.--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''.
(b) Licenses.--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 time frame 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''.
SEC. 8. IMPROVING CONSULTATION WITH INDIAN TRIBES.
(a) Guidance Document.--
(1) In general.--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.
(2) Updates.--The Commission and Secretary shall
update the guidance document prepared under paragraph
(1) every 10 years.
(3) Public participation.--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.
(b) Public Workshops.--
(1) In general.--Not later than one year after
preparing or updating the guidance document under
subsection (a), 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.
(2) Consultation.--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.
SEC. 9. TRIBAL MANDATORY CONDITIONS.
(a) In General.--Section 4 of the Federal Power Act (16
U.S.C. 797) is amended--
(1) 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
(2) by adding at the end the following:
``(h) Tribal Mandatory Conditions.--
``(1) Criteria.--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--
``(A) 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;
``(B) 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
``(C) 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).
``(2) Determination on request.--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).
``(3) Withdrawal of determination.--
``(A) In general.--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).
``(B) Notice and opportunity to respond.--
Before withdrawing a determination under
subparagraph (A), the Secretary shall provide
to the Indian tribe--
``(i) notice of the proposed
withdrawal; and
``(ii) an opportunity to respond and,
if necessary, redress the deficiencies
identified by the Secretary.''.
(b) Alternative Conditions.--Section 33(a) of the Federal
Power Act (16 U.S.C. 823d(a)) is amended--
(1) in paragraph (1), by inserting ``or an Indian
tribe'' before ``deems a condition'';
(2) in paragraph (2), by inserting ``or Indian
tribe'' after ``the Secretary'' each place it appears;
(3) in paragraph (3), by inserting ``or Indian
tribe'' after ``the Secretary'' each place it appears;
(4) in paragraph (4)--
(A) by inserting ``or Indian tribe'' before
``concerned shall submit'';
(B) by inserting ``or Indian tribe'' before
``gave equal consideration'';
(C) by inserting ``or Indian tribe'' after
``may be available to the Secretary'';
(D) by inserting ``or Indian tribe'' before
``shall also submit,''; and
(E) 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
(5) in paragraph (5)--
(A) by striking ``Secretary's final
condition'' and inserting ``final condition of
the Secretary or Indian tribe'';
(B) by inserting ``or Indian tribe'' after
``consult with the Secretary'';
(C) by inserting ``or Indian tribe'' before
``may accept the Dispute Resolution'';
(D) by inserting ``or Indian tribe'' after
``advisory unless the Secretary'';
(E) by inserting ``or Indian tribe'' before
``shall submit the advisory and''; and
(F) by striking ``Secretary's final written
determination'' and inserting ``final written
determination of the Secretary or Indian
tribe''.
SEC. 10. CONSIDERATION OF INVASIVE SPECIES.
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.''.
[all]