S-3518-119
Committee on Energy and Natural Resources. Ordered to be reported with an amendment in the nature of a substitute favorably.
Sponsored by Lisa Murkowski (R-AK)
What it does
The bill would amend the Federal Power Act so licensed hydropower operators would not need Federal Energy Regulatory Commission (FERC) approval for nonsubstantial alterations under approved plans, for routine maintenance, repair or replacement, or for seasonal or temporary operating adjustments responding to circumstances beyond their reasonable control. FERC would keep its authority to require notice, to enforce dam-safety requirements and license terms, and to require changes for dam safety. It would also let FERC license micro hydrokinetic projects (5 megawatts or less, no water impoundment) for 10 to 20 years, require final action within 1 year of an application, require FERC to issue rules within 180 days that include National Environmental Policy Act categorical exclusions for low-disturbance activities, and require a report to Congress.
Who benefits
Owners and operators of licensed hydropower dams, including utilities, public power districts and cooperatives, who would face fewer approval steps for upkeep and temporary adjustments. Developers of small wave, tidal, and river-current turbine projects, who would gain a licensing path with a 1-year decision deadline. Electricity customers in areas with hydropower, who might see lower compliance costs. FERC staff may also benefit from a reduced volume of minor filings.
Who is hurt
Environmental, fishing, recreation and tribal groups that use FERC review to weigh in on changes to dams and river operations, and who could have fewer chances to comment on work that is deemed nonsubstantial or routine. Downstream communities and ecosystems, if a nonsubstantial or temporary change turns out to have effects that go unreviewed. Resource agencies, which would need to meet a joint schedule and fixed deadline for micro projects. FERC, which would need to write new rules in 180 days and decide applications within 1 year.
Supporters argue
Supporters argue that routine repairs and minor changes at licensed dams now often wait for FERC sign-off, adding cost and delay without clear benefit, and that the bill keeps FERC's dam-safety authority and notice powers intact. They contend that small hydrokinetic projects with no impoundment have limited footprints, so a 1-year decision deadline and categorical exclusions would speed clean generation, and the required report to Congress would let lawmakers check the results.
Opponents argue
Opponents argue that terms like "nonsubstantial" and "beyond the reasonable control of the licensee" are undefined, so operators could make changes without review that affect fish, water flows, or recreation, and the dam-safety savings clause does not cover those concerns. They contend that a fixed 1-year deadline and categorical exclusions for micro projects could limit environmental study and agency input, and the report would arrive only after projects are licensed.
Constitutional context
Congress regulates hydropower on navigable waters under the Commerce Clause, as upheld in cases such as United States v. Appalachian Electric Power Co. (1940). Delegating rulemaking to FERC, including the categorical exclusions, would be reviewed by courts independently after Loper Bright (2024), and no distinct constitutional problem is apparent.
Checks and balances
The bill shifts some decision power from FERC to licensees for minor work, while FERC keeps safety, notice, and enforcement authority, and Congress receives a required report and courts retain review of FERC rules.
Historical precedent
Congress previously created expedited or exempt licensing paths for small hydropower through the Hydropower Regulatory Efficiency Act of 2013 and the Energy Policy Act of 2005 provisions on small conduit and qualifying projects.