The FISH Act

OVERVIEW

Short Title – The "Federal Investment in Sustainable Hydropower Act" (FISH Act).

Incentives for turbine upgrades – Defines "advanced turbine" as one that achieves maximum feasible electricity generation per gallon of water together with the maximum feasible fish mortality reduction. Requires the Secretary of Energy to promulgate standards for advanced turbines within 180 days of enactment and revise such standards every five years. Directs the Federal Energy Regulatory Commission (FERC) to modify licensing and operation fees imposed on licensees to provide a discount to licensees that install advanced turbines. The Act further mandates that FERC give priority in the licensing process to those licensees that install advanced turbines.

FERC report on hydroelectric licensing – Requires FERC to publish an annual, non-classified report addressing: the status and schedule of pending permit, licensing, and enforcement proceedings, including annual licenses, rehearing requests, or judicial appeals; the collection of annual charges and the reimbursement of a portion to agencies that incurred reasonable and necessary costs; and recurring disputes or problems in implementation of Part I of the Federal Power Act (FPA).

Rehearing petitions – Mandates FERC to decide rehearing petitions within six months.

Licensing schedule and environmental review – Requires FERC to publish an estimated schedule for all actions by the applicant, Commission, and other parties. Directs FERC to notify resource agencies as promptly as practicable of applications received. Within 30 days of FERC notification, agencies are required to submit proposed schedule for agency action with respect to an application. FERC may amend periodically its schedule and undertake affirmative actions, including substantial cooperation with resource agencies to assure an expeditious decision. Further, the Act requires FERC to commence all necessary environmental studies following its acceptance of an application. It directs FERC to require license applicants to conduct all studies required by resource agencies and to incorporate agency environmental studies into its environmental review.

Agency conditions – Amends FPA Sec. 10(j) to require that, when FERC finds a resource agency recommendation to be inconsistent with the FPA, FERC must submit such findings and their justifications to the agency concerned. It also provides that such agency may resubmit its recommendations to FERC with such modifications as the agency deems necessary.

License durations – Limits the duration of new licenses to terms of 30 years and relicensing to 15 years. Currently, initial licenses may be granted for 50 years, with additional terms of 30 years.

Fees and charges – Directs FERC to collect fees on behalf of federal resource agencies (for licensee use and occupancy of federal lands) and state water quality agencies. Provides for the creation of a revolving fund at FERC in which fees will be deposited. FERC is authorized and directed to reimburse such agencies from the revolving fund without need for further appropriation. Specifies that 50 percent of the fees collected for federal land use be deposited in a river restoration fund administered by the appropriate resource agency, with the remaining 50 percent to be transferred to the county in which the project resides for watershed and streambed conservation and water quality protection and improvement.

Availability of sufficient funds – Requires the establishment of a decomissioning fund as part of licensing/relicensing. Dam owners must utilize an insurance mechanism to ensure that they will secure the project works – or remove them if feasible – when the project exceeds its useful life or if it is abandoned.

Baseline – Requires FERC to consider its baseline of analysis to be the river without the project when analyzing project impacts pursuant to FPA Sec. 10(j).

Annual licenses – Gives federal and state resource agencies the ability to require interim conditions on annual licenses necessary to comply with legal requirements for beneficial uses of affected waters. Reduces the term of new licenses by one year for each annual license issued for a given project.

Agency costs – Amends FPA Sec. 10(e) to provide that fees collected by FERC for the purpose of reimbursing federal and state agencies for the cost of their studies shall be transferred directly to such agencies without further appropriation.

Office of public participation – Authorizes $5 million annually for the Commission to fund the Office of Public Participation. Requires FERC to reimburse interveners for reasonable costs incurred as a result of participation in a proceeding.

Royalty for use of public waters – Establishes an annual charge on licensees for use of public waters. Licensees would be assessed at a rate of one mil per kilowatt hour of electricity generated. The mil fee is to be adjusted for inflation. Authorizes 50 percent of the sums collected from each project to be appropriated to the state in which the project is located for purposes of fish and wildlife enhancement projects in that state.

Multiple projects on a waterway – Directs FERC to establish license conditions for each project on a river system based upon the cumulative impact of all such projects on the system’s fish and wildlife.

Alternative conditions and fishways – Requires that resource agencies consider alternatives to the mandatory conditions and fishway prescriptions they would impose on hydroelectric power projects during a licensing proceeding. A resource agency would be required to adopt an alternative proposed by any party to a licensing proceeding that, based upon substantial evidence, would result in equal or greater environmental/fish protection and would either cost less or result in less energy loss. In addition, within one year after enactment, the Secretaries of Interior, Commerce, and Agriculture are each required to establish a process for resolving disputes arising out of actions under this subsection.

FERC data on hydroelectric licensing – Directs FERC to revise its data collection procedures regarding the hydroelectric licensing process to provide more complete and accurate information on the time and costs involved in the process. The language is based upon recommendations made by the General Accounting Office in its May 2, 2001, report which sharply criticized FERC=s data collection and management relicensing hydroelectric projects.

Enforcement – Amends Sec. 31 of FPA to require FERC to enforce compliance with each license and permit; conditions imposed under Sec. 4(e) or 4(h); fishway prescriptions under Sec. 18; state conditions; and exemptions. Mandates FERC issue such orders as necessary to require compliance with all license, permit, and exemption terms and conditions. Requires FERC, within 12 months of enactment, to establish procedures to reopen and amend licenses to ensure ongoing project compliance with state water quality standards.

Sunshine in financial accounting – Mandates that FERC require license, permit, or exemption applicants to provide the Commission with certain financial accounting information (including revenue and net revenue projections) about the project as would be provided to potential investors in the project. Further directs FERC to make public such information.