PRINTER'S NO. 2546
No. 2055 Session of 1981
INTRODUCED BY HAYES, BOWSER, DOMBROWSKI, PETERSON, MERRY, SWIFT,
BOYES, LEVI, PETRARCA, CAPPABIANCA, COLE, F. E. TAYLOR AND
J. L. WRIGHT, NOVEMBER 10, 1981
REFERRED TO COMMITTEE ON CONSERVATION, NOVEMBER 10, 1981
AN ACT
1 Amending Title 32 (Forests, Waters and State Parks) of the
2 Pennsylvania Consolidated Statutes, adding provisions
3 relating to water resources projects and making repeals.
4 TABLE OF CONTENTS
5 TITLE 32
6 FORESTS, WATERS AND STATE PARKS
7 PART IV. WATER RESOURCES PROJECTS
8 Chapter 71. General Provisions (Reserved)
9 Chapter 73. Hydroelectric Facilities
10 § 7301. Short title of chapter.
11 § 7302. Declaration of policy and purposes.
12 § 7303. Definitions.
13 § 7304. Plans and studies.
14 § 7305. Development and operation of facilities.
15 § 7306. Cooperative projects, franchise rights and leases.
16 § 7307. Marketing and distribution of power.
17 § 7308. Exclusive rights in Commonwealth lands, waters and
18 facilities.
1 The General Assembly of the Commonwealth of Pennsylvania
2 hereby enacts as follows:
3 Section 1. Title 32, act of November 25, 1970 (P.L.707,
4 No.230), known as the Pennsylvania Consolidated Statutes, is
5 amended by adding a part to read:
6 TITLE 32
7 FORESTS, WATERS AND STATE PARKS
8 Part
9 IV. Water Resources Projects
10 PART IV
11 WATER RESOURCES PROJECTS
12 Chapter
13 71. General Provisions (Reserved)
14 73. Hydroelectric Facilities
15 CHAPTER 71
16 GENERAL PROVISIONS
17 (Reserved)
18 CHAPTER 73
19 HYDROELECTRIC FACILITIES
20 Sec.
21 7301. Short title of chapter.
22 7302. Declaration of policy and purposes.
23 7303. Definitions.
24 7304. Plans and studies.
25 7305. Development and operation of facilities.
26 7306. Cooperative projects, franchise rights and leases.
27 7307. Marketing and distribution of power.
28 7308. Exclusive rights in Commonwealth lands, waters and
29 facilities.
30 § 7301. Short title of chapter.
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1 This chapter shall be known and may be cited as the
2 "Commonwealth Hydroelectric Facilities Act."
3 § 7302. Declaration of policy and purposes.
4 The policy and purposes of this chapter are to:
5 (1) Recognize, protect and enhance the balanced and
6 multiple use and conservation of the water resources of this
7 Commonwealth for water supply, power and energy, navigation,
8 flood control and environmental purposes consistent with
9 comprehensive plans and programs for water management.
10 (2) Protect and enhance the public's investment in
11 existing lands, facilities, water rights and water storage
12 capacity by authorizing and encouraging the use of such
13 public lands, facilities, water rights and storage capacity
14 for the development of hydroelectric facilities consistent
15 with the public interest.
16 (3) Encourage development of hydroelectric facilities in
17 this Commonwealth through cooperative arrangements between
18 agencies of the Commonwealth, municipalities, municipal
19 authorities, rural electric cooperatives and private
20 enterprise.
21 § 7303. Definitions.
22 The following words and phrases when used in this chapter
23 shall have, unless the context clearly indicates otherwise, the
24 meanings given to them in this section:
25 "Competitive bid process." A process for the award of a
26 franchise right, right-of-way or lease to the highest
27 responsible bidder when the Commonwealth is receiving money, or
28 to the lowest responsible bidder when the Commonwealth is
29 spending money, based on detailed specifications established by
30 the department.
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1 "Competitive proposal process." A process for award of a
2 franchise right, right-of-way or lease based on selection of the
3 proposal, including financial arrangements, capital investments,
4 services and other terms and conditions, which best serves the
5 interest of the Commonwealth.
6 "Department." The Department of Environmental Resources of
7 the Commonwealth.
8 "Franchise rights." The right to operate hydroelectric
9 facilities owned by the Commonwealth, to market the power
10 derived from such facilities and collect the revenue therefrom.
11 "Hydroelectric facilities or projects." Any dam, reservoir,
12 power house, generation facility or related facility for the
13 generation and transmission of hydroelectric power and energy.
14 "Lands, water rights or facilities of the Commonwealth." Any
15 lands, water rights, dams, reservoirs, canals and other
16 facilities, including appurtenant works, owned or leased by the
17 Commonwealth; and any storage capacity in any Federal, State or
18 other reservoir facility purchased by the Commonwealth or by any
19 river basin commission on behalf of the Commonwealth, or
20 developed with the contribution of lands or funds by the
21 Commonwealth.
22 "Person." Any natural person, partnership, association,
23 corporation, municipality, municipal authority, receiver or
24 trustee and any department, board, commission or authority of
25 the Commonwealth or of the Federal Government, or any other
26 legal entity whatsoever which is recognized by law as the
27 subject or rights and duties.
28 "River basin commission." Any river basin commission created
29 under compact or Federal or State law and responsible for
30 planning and management of interstate water resources.
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1 § 7304. Plans and studies.
2 (a) General rule.--The department is authorized to prepare
3 or to enter into agreements with any person to prepare plans and
4 feasibility studies for the development and operation of
5 hydroelectric facilities and projects utilizing lands, water
6 rights or facilities of the Commonwealth, including plans for
7 the marketing and distribution of power derived from such
8 hydroelectric facilities and projects.
9 (b) Interagency cooperation.--The department shall cooperate
10 with the Pennsylvania Fish Commission, Pennsylvania Game
11 Commission, river basin commissions and other appropriate
12 agencies of the Commonwealth and the Federal Government to
13 assure that plans and studies for any hydroelectric facility or
14 project undertaken under this chapter are consistent with any
15 State or Federal plans for the improvement of commerce,
16 navigation, water supply, recreation, flood control, fish and
17 wildlife protection, water quality and water resources
18 management. Any hydroelectric facility or project undertaken
19 under this chapter shall be planned and constructed so as to be
20 adaptable to such plans.
21 § 7305. Development and operation of facilities.
22 (a) General rule.--The department may construct, finance,
23 maintain and operate or enter into agreements with any person to
24 construct, finance, maintain and operate hydroelectric
25 facilities and projects, including facilities for the
26 transmission of hydroelectric power produced by such projects
27 where transmission facilities are not otherwise available upon
28 reasonable terms.
29 (b) Acquisition of property.--The department shall have the
30 power to acquire and hold in the name of the Commonwealth any
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1 lands, waters, easements, rights-of-way, franchises or other
2 property deemed necessary for the construction and operation of
3 any facilities authorized under this chapter, by donation,
4 agreement, lease, purchase or condemnation in accordance with
5 the provisions of the act of June 22, 1964 (1st Sp.Sess.,
6 P.L.86, No.6), known as the "Eminent Domain Code."
7 (c) Use of Commonwealth funds.--No Commonwealth funds shall
8 be expended for the acquisition of lands or for the construction
9 of hydroelectric facilities and projects unless such funds are
10 specifically appropriated by the General Assembly for such
11 purposes or specifically made available from funds provided by
12 the Pennsylvania Energy Development Authority.
13 § 7306. Cooperative projects, franchise rights and leases.
14 (a) Cooperative projects.--The department may enter into
15 contracts and other agreements with any person for cooperation
16 and assistance in planning, constructing, financing, maintaining
17 and operating hydroelectric facilities and projects or related
18 facilities needed to carry out the purposes of this chapter.
19 (b) Leases and franchise rights.--The department may grant a
20 franchise right, right-of-way or lease for any lands, water
21 rights, dams or other facilities of the Commonwealth under the
22 control of the department to any person for purposes of the
23 development and operation of hydroelectric facilities and
24 projects, upon such terms and conditions as may be considered
25 reasonable, subject to the following limitations:
26 (1) The development and operation of hydroelectric
27 facilities and projects shall be permitted only where the
28 department determines that the facilities and projects can be
29 constructed and operated in a manner compatible with the
30 other authorized public uses and purposes of the lands,
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1 waters, dams or other facilities being utilized.
2 (2) Unless a substantial capital investment by the
3 person receiving the franchise right, right-of-way or lease
4 is involved, the period of the franchise right, right-of-way
5 or lease shall not exceed ten years. If a substantial capital
6 investment is involved and if it is deemed in the interest of
7 the Commonwealth, the department may, with the approval of
8 the Governor, grant such franchise rights, rights-of-way and
9 leases for a period not to exceed 50 years.
10 (3) Except as provided in paragraphs (4) and (5), the
11 department shall award a franchise right, right-of-way or
12 lease involving revenue or value of more than $5,000 per year
13 only on the basis of a competitive bid or competitive
14 proposal process after due advertisement.
15 (4) If a person pursuant to a cooperative agreement with
16 the department incurs substantial risk or provides
17 substantial investment in the conduct of plans and studies of
18 hydroelectric facilities and projects, the department may,
19 with the approval of the Governor, provide to such person a
20 right of first refusal or an option under specified
21 conditions for the acquisition of franchise rights, rights-
22 of-way or leases for such facilities and projects, or enter
23 into other arrangements to compensate for the risks and
24 investment so incurred, to the extent that such arrangements
25 are found to be in the best interests of the Commonwealth and
26 the public.
27 (5) The department may grant franchise rights, rights-
28 of-way or a lease for such purposes to any municipality,
29 municipal authority or other agency or subdivision of the
30 Commonwealth for the development and operation of
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1 hydroelectric facilities and projects on a nonprofit basis
2 without the requirement of competitive bids or competitive
3 proposals.
4 § 7307. Marketing and distribution of power.
5 (a) General rule.--Power and energy derived from
6 hydroelectric facilities and projects developed and operated
7 directly by the department may be sold and distributed only on a
8 wholesale basis and shall not be sold to retail customers except
9 that the department may sell and distribute power and energy to
10 any State or municipal agency or municipal authority in this
11 Commonwealth.
12 (b) Rate establishment.--The department may from time to
13 time after public notice and hearing fix, alter and revise
14 rates, rentals, charges and classifications thereof for the use
15 of hydroelectric facilities and projects it may own or operate,
16 and for power and energy produced by such facilities and
17 projects, without regulation or control by any other department,
18 commission or agency of the Commonwealth. Rates and charges
19 fixed by the department for power which is produced by its
20 facilities shall be reasonable, nondiscriminatory and just.
21 (c) Preferences for sales.--In the sale and distribution of
22 power and energy produced by facilities and projects developed
23 and operated directly by the department, preference shall be
24 given to municipalities, municipal authorities, rural electric
25 cooperatives and State agencies. Sales to such entities shall be
26 at prices representing the cost of generation and capital and
27 operating charges plus a fair cost of transmission as determined
28 by the department.
29 § 7308. Exclusive rights in Commonwealth lands, waters and
30 facilities.
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1 (a) General rule.--The Commonwealth, acting through the
2 department, a river basin commission created by interstate
3 compact or such other agency as may be explicitly designated by
4 the General Assembly, shall have the exclusive rights to
5 construct, operate and maintain hydroelectric projects utilizing
6 lands, water rights or facilities of the Commonwealth.
7 (b) Limitation on municipal entities.--No municipality,
8 municipal authority or other subdivision of the Commonwealth
9 shall be authorized to construct, operate or maintain a
10 hydroelectric facility or project utilizing lands, water rights
11 or facilities of the Commonwealth except pursuant to a
12 cooperative agreement or the grant of a franchise right, right-
13 of-way or lease under section 7306 (relating to cooperative
14 projects, franchise rights and leases). No municipality,
15 municipal authority or other subdivision of the Commonwealth is
16 authorized to apply for or receive a preliminary permit or
17 license pursuant to the Federal Power Act for any such
18 hydroelectric facility or project except as provided in this
19 section and section 7306.
20 Section 2. All acts or parts of acts inconsistent herewith
21 are hereby repealed to the extent of such inconsistency.
22 Section 3. This act shall take effect immediately.
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