[House Report 115-213]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 115-213
======================================================================
TO AMEND THE FEDERAL POWER ACT WITH RESPECT TO THE CRITERIA AND PROCESS
TO QUALIFY AS A QUALIFYING CONDUIT HYDROPOWER FACILITY
_______
July 12, 2017.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Walden, from the Committee on Energy and Commerce, submitted the
following
R E P O R T
[To accompany H.R. 2786]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 2786) to amend the Federal Power Act with
respect to the criteria and process to qualify as a qualifying
conduit hydropower facility, having considered the same,
reports favorably thereon with an amendment and recommends that
the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Committee Action................................................. 2
Committee Votes.................................................. 3
Oversight Findings and Recommendations........................... 3
New Budget Authority, Entitlement Authority, and Tax Expenditures 3
Congressional Budget Office Estimate............................. 3
Federal Mandates Statement....................................... 3
Statement of General Performance Goals and Objectives............ 4
Duplication of Federal Programs.................................. 4
Committee Cost Estimate.......................................... 4
Earmark, Limited Tax Benefits, and Limited Tariff Benefits....... 4
Disclosure of Directed Rule Makings.............................. 4
Advisory Committee Statement..................................... 4
Applicability to Legislative Branch.............................. 4
Section-by-Section Analysis of the Legislation................... 4
Changes in Existing Law Made by the Bill, as Reported............ 4
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. QUALIFYING CONDUIT HYDROPOWER FACILITIES.
Section 30(a) of the Federal Power Act (16 U.S.C. 823a(a)) is
amended--
(1) in paragraph (2)(C), by striking ``45 days'' and
inserting ``30 days''; and
(2) in paragraph (3)(C)--
(A) in clause (i), by adding ``and'' after the
semicolon;
(B) by striking clause (ii); and
(C) by redesignating clause (iii) as clause (ii).
Purpose and Summary
H.R. 2786, a bill to amend the Federal Power Act with
respect to the criteria and process to qualify as a qualifying
conduit hydropower facility, was introduced by Rep. Hudson (R-
NC) and Rep. DeGette (D-CO) on June 6, 2017. H.R. 2786 would
promote the development of conduit hydropower facilities by
reducing the regulatory review period and allowing for larger
conduit projects to be eligible for exemption from the Federal
Energy Regulatory Commission's jurisdiction.
Background and Need for Legislation
Under the Federal Power Act (FPA), the Federal Energy
Regulatory Commission (FERC) issues licenses for projects
within its jurisdiction, and exemptions for projects that would
be located at existing dams or within conduits, as long as
these projects meet specific criteria. Exemptions are
perpetual, and thus do not need to be renewed.
Congress established qualifying conduit exemptions under
the provisions of the Hydropower Regulatory Efficiency Act of
2013. That legislation amended section 30 of the FPA to allow
FERC to issue exemptions for generation projects that use the
hydroelectric potential of manmade conduits that are operated
for the distribution of water for agricultural, municipal, or
industrial consumption, and not primarily for generation of
electricity.
Under section 30 of the FPA, not later than 15 days from
the date of notice of intent for a qualifying conduit, FERC
must make an initial determination as to whether the facility
meets the qualifying criteria, and, if so, publish a public
notice of intent. Following the notice, a period of 45 days is
provided for public comment on FERC's initial determination as
to whether a facility meets the qualifying criteria, which
includes a five megawatt limitation on the facility's installed
capacity.
The Committee finds the qualifying conduit program to be a
success, with the entire process taking about two months,
including the required 45-day public notice period during which
FERC has very rarely received comments that have bearing on
whether the facility qualifies. H.R. 2786 would provide
benefits to a greater range conduit hydropower projects by
shortening the 45-day notice period to 30 days, and allowing
larger conduit projects to be eligible for exemption from
FERC's jurisdiction.
Committee Action
On May 3, 2017, the Subcommittee on Energy held a
legislative hearing on discussion draft H.R. --------,
Promoting Small Conduit Hydropower Facilities Act of 2017. The
Subcommittee received testimony from:
Terry Turpin, Director, Office of Energy
Projects, Federal Energy Regulatory Commission;
John Katz, Deputy Associate General Counsel,
Office of the General Counsel, Federal Energy
Regulatory Commission;
Jeffrey Leahey, Deputy Executive Director,
National Hydropower Association;
Donald Santa, President and CEO, Interstate
Natural Gas Association of America;
Andy Black, President and CEO, Association
of Oil Pipe Lines;
Jeffrey Soth, Legislative and Political
Director, International Union of Operating Engineers;
Bob Irvin, President and CEO, American
Rivers; and,
Jennifer Danis, Senior Staff Attorney,
Eastern Environmental Law Center.
On June 22, 2017, the Subcommittee on Energy met in open
markup session and forwarded H.R. 2786, as amended, to the full
Committee by a voice vote. On June 28, 2017, the full Committee
on Energy and Commerce met in open markup session and ordered
H.R. 2786, as amended, favorably reported to the House by a
voice vote.
Committee Votes
Clause 3(b) of rule XIII requires the Committee to list the
record votes on the motion to report legislation and amendments
thereto. There were no record votes taken in connection with
ordering H.R. 2786 reported.
Oversight Findings and Recommendations
Pursuant to clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII, the Committee held a hearing and made findings that
are reflected in this report.
New Budget Authority, Entitlement Authority, and Tax Expenditures
Pursuant to clause 3(c)(2) of rule XIII, the Committee
finds that H.R. 2786 would result in no new or increased budget
authority, entitlement authority, or tax expenditures or
revenues.
Congressional Budget Office Estimate
Pursuant to clause 3(c)(3) of rule XIII, at the time this
report was filed, the cost estimate prepared by the Director of
the Congressional Budget Office pursuant to section 402 of the
Congressional Budget Act of 1974 was not available.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Statement of General Performance Goals and Objectives
Pursuant to clause 3(c)(4) of rule XIII, the general
performance goal or objective of this legislation is to promote
the development of conduit hydropower facilities.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of rule XIII, no provision of
H.R. 2786 is known to be duplicative of another Federal
program, including any program that was included in a report to
Congress pursuant to section 21 of Public Law 111-139 or the
most recent Catalog of Federal Domestic Assistance.
Committee Cost Estimate
Pursuant to clause 3(d)(1) of rule XIII, the Committee
adopts as its own the cost estimate prepared by the Director of
the Congressional Budget Office pursuant to section 402 of the
Congressional Budget Act of 1974. At the time this report was
filed, the estimate was not available.
Earmark, Limited Tax Benefits, and Limited Tariff Benefits
Pursuant to clause 9(e), 9(f), and 9(g) of rule XXI, [the
Committee finds that H.R. 2786 contains no earmarks, limited
tax benefits, or limited tariff benefits.
Disclosure of Directed Rule Makings
Pursuant to section 3(i) of H. Res. 5, the Committee finds
that H.R. 2786 contains no directed rule makings.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 1. Qualifying conduit hydropower facilities
This section amends section 30(a) of the Federal Power Act
by requiring FERC to determine whether a facility meets
qualifying small conduit facility criteria no later than 45
days after receipt of a notice of intent to construct. The
legislation also strikes the five megawatt cap on qualifying
conduit hydropower facilities.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
FEDERAL POWER ACT
PART I
* * * * * * *
Sec. 30. (a)(1) A qualifying conduit hydropower facility
shall not be required to be licensed under this part.
(2)(A) Any person, State, or municipality proposing to
construct a qualifying conduit hydropower facility shall file
with the Commission a notice of intent to construct such
facility. The notice shall include sufficient information to
demonstrate that the facility meets the qualifying criteria.
(B) Not later than 15 days after receipt of a notice of
intent filed under subparagraph (A), the Commission shall--
(i) make an initial determination as to whether the
facility meets the qualifying criteria; and
(ii) if the Commission makes an initial
determination, pursuant to clause (i), that the
facility meets the qualifying criteria, publish public
notice of the notice of intent filed under subparagraph
(A).
(C) If, not later than [45 days] 30 days after the date of
publication of the public notice described in subparagraph
(B)(ii)--
(i) an entity contests whether the facility meets the
qualifying criteria, the Commission shall promptly
issue a written determination as to whether the
facility meets such criteria; or
(ii) no entity contests whether the facility meets
the qualifying criteria, the facility shall be deemed
to meet such criteria.
(3) For purposes of this section:
(A) The term ``conduit'' means any tunnel, canal,
pipeline, aqueduct, flume, ditch, or similar manmade
water conveyance that is operated for the distribution
of water for agricultural, municipal, or industrial
consumption and not primarily for the generation of
electricity.
(B) The term ``qualifying conduit hydropower
facility'' means a facility (not including any dam or
other impoundment) that is determined or deemed under
paragraph (2)(C) to meet the qualifying criteria.
(C) The term ``qualifying criteria'' means, with
respect to a facility--
(i) the facility is constructed, operated, or
maintained for the generation of electric power
and uses for such generation only the
hydroelectric potential of a non-federally
owned conduit; and
[(ii) the facility has an installed capacity
that does not exceed 5 megawatts; and]
[(iii)] (ii) on or before the date of
enactment of the Hydropower Regulatory
Efficiency Act of 2013, the facility is not
licensed under, or exempted from the license
requirements contained in, this part.
(b) Subject to subsection (c), the Commission may grant an
exemption in whole or in part from the requirements of this
part, including any license requirements contained in this
part, to any facility (not including any dam or other
impoundment) constructed, operated, or maintained for the
generation of electric power which the Commission determines,
by rule or order--
(1) utilizes for such generation only the
hydroelectric potential of a conduit; and
(2) has an installed capacity that does not exceed 40
megawatts.
(c) In making the determination under subsection (b) the
Commission shall consult with the United States Fish and
Wildlife Service and the State agency exercising administration
over the fish and wildlife resources of the State in which the
facility is or will be located, in the manner provided by the
Fish and Wildlife Coordination Act (16 U.S.C. 661, et seq.),
and shall include in any such exemption--
(1) such terms and conditions as the Fish and
Wildlife Service National Marine Fisheries Service and
the State agency each determine are appropriate to
prevent loss of, or damage to, such resources and to
otherwise carry out the purposes of such Act, and
(2) such terms and conditions as the Commission deems
appropriate to insure that such facility continues to
comply with the provisions of this section and terms
and conditions included in any such exemption.
(d) Any violation of a term or condition of any exemption
granted under subsection (b) shall be treated as a violation of
a rule or order of the Commission under this Act.
(e) The Commission, in addition to the requirements of
section 10(e), shall establish fees which shall be paid by an
applicant for a license or exemption for a project that is
required to meet terms and conditions set by fish and wildlife
agencies under subsection (c). Such fees shall be adequate to
reimburse the fish and wildlife agencies referred to in
subsection (c) for any reasonable costs incurred in connection
with any studies or other reviews carried out by such agencies
for purposes of compliance with this section. The fees shall,
subject to annual appropriations Acts, be transferred to such
agencies by the Commission for use solely for purposes of
carrying out such studies and shall remain available until
expended.
* * * * * * *