16 U.S.C. § 823e — Promoting hydropower development at

Page 1395 TITLE 16—CONSERVATION § 823e (2) Notwithstanding section 811 of this title, the Secretary of the Interior or the Secretary of Commerce, as appropriate, shall accept and pre- scribe, and the Commission shall require, the proposed alternative referred to in paragraph (1), if the Secretary of the appropriate depart- ment determines, based on substantial evidence provided by the license applicant, any other party to the proceeding, or otherwise available to the Secretary, that such alternative— (A) will be no less protective than the fishway initially prescribed by the Secretary; and (B) will either, as compared to the fishway initially prescribed by the Secretary— (i) cost significantly less to implement; or (ii) result in improved operation of the project works for electricity production. (3) In making a determination under para- graph (2), the Secretary shall consider evidence provided for the record by any party to a licens- ing proceeding, or otherwise available to the Secretary, including any evidence provided by the Commission, on the implementation costs or operational impacts for electricity production of a proposed alternative. (4) The Secretary concerned shall submit into the public record of the Commission proceeding with any prescription under section 811 of this title or alternative prescription it accepts under this section, a written statement explaining the basis for such prescription, and reason for not accepting any alternative prescription under this section. The written statement must dem- onstrate that the Secretary gave equal consider- ation to the effects of the prescription adopted and alternatives not accepted on energy supply, distribution, cost, and use; flood control; navi- gation; water supply; and air quality (in addi- tion to the preservation of other aspects of envi- ronmental quality); based on such information as may be available to the Secretary, including information voluntarily provided in a timely manner by the applicant and others. The Sec- retary shall also submit, together with the aforementioned written statement, all studies, data, and other factual information available to the Secretary and relevant to the Secretary’s decision. (5) If the Commission finds that the Sec- retary’s final prescription would be inconsistent with the purposes of this subchapter, or other applicable law, the Commission may refer the dispute to the Commission’s Dispute Resolution Service. The Dispute Resolution Service shall consult with the Secretary and the Commission and issue a non-binding advisory within 90 days. The Secretary may accept the Dispute Resolu- tion Service advisory unless the Secretary finds that the recommendation will not adequately protect the fish resources. The Secretary shall submit the advisory and the Secretary’s final written determination into the record of the Commission’s proceeding. (June 10, 1920, ch. 285, pt. I, § 33, as added Pub. L. 109–58, title II, § 241(c), Aug. 8, 2005, 119 Stat. 675.) § 823e. Promoting hydropower development at existing nonpowered dams (a) Expedited licensing process for non-Federal hydropower projects at existing nonpowered dams (1) In general As provided in this section, the Commission may issue and amend licenses, as appropriate, for any facility the Commission determines is a qualifying facility. (2) Rule Not later than 180 days after October 23, 2018, the Commission shall issue a rule establishing an expedited process for issuing and amending licenses for qualifying facilities under this section. (3) Interagency task force (A) In establishing the expedited process under this section, the Commission shall convene an interagency task force, with ap- propriate Federal and State agencies and In- dian tribes represented, to coordinate the regulatory processes associated with the au- thorizations required to construct and oper- ate a qualifying facility. (B) The task force shall develop procedures that are consistent with subsection (e)(1)(E) to seek to ensure that, for projects licensed pursuant to this section, the Commission and appropriate Federal and State agencies and Indian tribes shall exercise their au- thorities in a manner that, to the extent practicable, will not result in any material change to the storage, release, or flow oper- ations of the associated nonpowered dam ex- isting at the time an applicant files its li- cense application. (4) Length of process The Commission shall seek to ensure that the expedited process under this section will result in a final decision on an application for a license by not later than 2 years after re- ceipt of a completed application for the li- cense. (b) Dam safety (1) Assessment Before issuing any license for a qualifying facility, the Commission shall assess the safe- ty of existing non-Federal dams and other non-Federal structures related to the quali- fying facility (including possible consequences associated with failure of such structures). (2) Requirements In issuing any license for a qualifying facil- ity at a non-Federal dam, the Commission shall ensure that the Commission’s dam safety requirements apply to such qualifying facility, and the associated qualifying nonpowered dam, over the term of such license. (c) Interagency communications Interagency cooperation 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 li- cense for a qualifying facility under this section, Page 1396 TITLE 16—CONSERVATION § 823f 1 So in original. Probably should be followed by ‘‘of 1969’’. and interagency communications relating to li- censing process coordination pursuant to this section, shall not— (1) be considered to be ex parte communica- tions under Commission rules; or (2) preclude an agency from participating in a licensing proceeding under this subchapter, providing that any agency participating as a party in a licensing proceeding under this sub- chapter shall, to the extent practicable, dem- onstrate a separation of staff cooperating with the Commission under the National Environ- mental Policy Act 1 (42 U.S.C. 4321 et seq.) and staff participating in the applicable pro- ceeding under this subchapter. (d) Identification of nonpowered dams for hydro- power development (1) In general Not later than 12 months after October 23, 2018, the Commission, with the Secretary of the Army, the Secretary of the Interior, and the Secretary of Agriculture, shall jointly de- velop a list of existing nonpowered Federal dams that the Commission and the Secretaries agree have the greatest potential for non-Fed- eral hydropower development. (2) Considerations In developing the list under paragraph (1), the Commission and the Secretaries may con- sider the following: (A) The compatibility of hydropower gen- eration with existing purposes of the dam. (B) The proximity of the dam to existing transmission resources. (C) The existence of studies to characterize environmental, cultural, and historic re- sources relating to the dam. (D) The effects of hydropower development on release or flow operations of the dam. (3) Availability The Commission shall— (A) provide the list developed under para- graph (1) to— (i) the Committee on Energy and Com- merce, the Committee on Transportation and Infrastructure, and the Committee on Natural Resources, of the House of Rep- resentatives; and (ii) the Committee on Environment and Public Works, and the Committee on En- ergy and Natural Resources, of the Senate; and (B) make such list available to the public. (e) Definitions For purposes of this section: (1) Qualifying criteria The term ‘‘qualifying criteria’’ means, with respect to a facility— (A) as of October 23, 2018, the facility is not licensed under, or exempted from the license requirements contained in, this subchapter; (B) the facility will be associated with a qualifying nonpowered dam; (C) the facility will be constructed, oper- ated, and maintained for the generation of electric power; (D) the facility will use for such genera- tion any withdrawals, diversions, releases, or flows from the associated qualifying non- powered dam, including its associated im- poundment or other infrastructure; and (E) the operation of the facility will not result in any material change to the storage, release, or flow operations of the associated qualifying nonpowered dam. (2) Qualifying facility The term ‘‘qualifying facility’’ means a fa- cility that is determined under this section to meet the qualifying criteria. (3) Qualifying nonpowered dam The term ‘‘qualifying nonpowered dam’’ means any dam, dike, embankment, or other barrier— (A) the construction of which was com- pleted on or before October 23, 2018; (B) that is or was operated for the control, release, or distribution of water for agricul- tural, municipal, navigational, industrial, commercial, environmental, recreational, aesthetic, drinking water, or flood control purposes; and (C) that, as of October 23, 2018, is not gen- erating electricity with hydropower gener- ating works that are licensed under, or ex- empted from the license requirements con- tained in, this subchapter. (f) Savings clause Nothing in this section affects— (1) any authority of the Commission to li- cense a facility at a nonpowered dam under this subchapter; and (2) any authority of the Commission to issue an exemption to a small hydroelectric power project under the Public Utility Regulatory Policies Act of 1978. (June 10, 1920, ch. 285, pt. I, § 34, as added Pub. L. 115–270, title III, § 3003, Oct. 23, 2018, 132 Stat. 3863.) Editorial Notes REFERENCES IN TEXT The National Environmental Policy Act of 1969, re- ferred to in subsec. (c), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§ 4321 et seq.) of Title 42, The Public Health and Wel- fare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables. The Public Utility Regulatory Policies Act of 1978, referred to in subsec. (f)(2), is Pub. L. 95–617, Nov. 9, 1978, 92 Stat. 3117. For complete classification of this Act to the Code, see Short Title note set out under sec- tion 2601 of this title and Tables. § 823f. Closed-loop pumped storage projects (a) Expedited licensing process for closed-loop pumped storage projects (1) In general As provided in this section, the Commission may issue and amend licenses, as appropriate, for closed-loop pumped storage projects. (2) Rule Not later than 180 days after October 23, 2018, the Commission shall issue a rule establishing