12 2 STA T .3809PUBLIC LA W 110 – 3 4 3 —O CT. 3 , 2008 (c)TRASHF A CIL I TYC LARI F ICATI ON.—Par a g ra ph ( 7 ) ofse c ti o n45 ( d )isa m ended— ( 1 ) by stri k ing ‘ ‘faci l ity w hich b u rns ’ ’ and inserting ‘‘facility (other than a facility described in paragraph ( 6 )) which uses’’ , and ( 2 ) by striking ‘‘CO MBU STION’’. (d) EXP ANSION OF B IOMASS FACILITI E S.— (1) O PEN - LOOP BIOMASS FACILITIES.—Paragraph ( 3 ) of sec- tion 45(d) is amended by redesignating subparagraph (B) as subparagraph (C) and by inserting after subparagraph ( A ) the following new subparagraph
‘‘(B) EXPANSION OF FACILITY.— S uch term shall include a new unit placed in ser v ice after the date of the enactment of this subparagraph in connection with a facility described in subparagraph (A), but only to the e x tent of the increased amount of electricity produced at the facility by reason of such new unit.’’. (2) CLOSE D -LOOP BIOMASS FACILITIES.—Paragraph (2) of sec- tion 45(d) is amended by redesignating subparagraph (B) as subparagraph (C) and inserting after subparagraph (A) the following new subparagraph: ‘‘(B) EXPANSION OF FACILITY.—Such term shall include a new unit placed in service after the date of the enactment of this subparagraph in connection with a facility described in subparagraph (A)(i), but only to the extent of the increased amount of electricity produced at the facility by reason of such new unit.’’. (e) M ODIFICATION OF R ULES FOR H YDROPO W ER PRODUCTION.— Subparagraph (C) of section 45(c)( 8 ) is amended to read as follows: ‘‘(C) N ONHYDROELECTRIC DAM.—For purposes of subparagraph (A), a facility is described in this subpara- graph if— ‘‘(i) the hydroelectric pro j ect installed on the non- hydroelectric dam is licensed by the Federal Energy Regulatory Commission and meets all other applicable environmental, licensing, and regulatory re q uirements, ‘‘(ii) the nonhydroelectric dam was placed in service before the date of the enactment of this paragraph and operated for flood control, navigation, or water supply purposes and did not produce hydroelectric power on the date of the enactment of this paragraph, and ‘‘(iii) the hydroelectric project is operated so that the water surface elevation at any given location and time that would have occurred in the absence of the hydroelectric project is maintained, subject to any license requirements imposed under applicable law that change the water surface elevation for the purpose of improving environmental quality of the affected waterway. The Secretary, in consultation with the Federal Energy Regulatory Commission, shall certify if a hydroelectric project licensed at a nonhydroelectric dam meets the cri- teria in clause (iii). Nothing in this section shall affect the standards under which the Federal Energy Regulatory Commission issues licenses for and regulates hydropower projects under part I of the Federal Power Act.’’. Certif i ca ti on.26US C 45 .
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