MOTION OF AMERICAN RIVERS. THE PACIFIC RIVERS COUNCIL
(FORMERLY THE OREGON RIVERS COUNCIL) AND OREGON TROUT
FOR AN ENVIRONMENTAL IMPACT STATEMENT
Pursuant to 18 C.F.R. §385.212, the above named intervenors (Conservation Intervenors) respectfully request that the Commission prepare a draft environmental impact statement which includes at least those areas of investigation identified in the attached proposed scope of work.
We so move the commission because this license proceeding constitutes a “major federal action significantly affecting the environment.” 42 u.s.c. S 4321. The evidence supporting this motion is known to the commission and/or has been submitted recently to the Commission in this proceeding, and includes at least the following:
- Five (5) government agencies, three of which are the local popularly elected government bodies in the project area, have intervened in these proceedings, taking issue with the completeness of the license application; the lack of mitigative measures proposed in that application for the damage done by the project to the upper Deschutes River fishery and to recreational opportunities in and around Bend, Oregon; and for the safety and health concerns engendered by the Applicant’s project works;
- Collectively, the popularly elected local government agency intervenors represent in excess of 74,000 people in the County of Deschutes, Oregon, according to the 1990 census;
- In addition, five (5) national, regional and local conservation and fishing groups have also intervened in these proceedings, advocating fish passage at and other mitigation for the many decades that this project has operated, and proposes to continue to operate, without any license conditions for fish passage, minimum instream flows, public recreational and aesthetic concerns and mitigation for the adverse effects of the project on the upper Deschutes fishery; these groups represent several thousand members in the Northwest and tens of thousands of members in the nation, who insist that the time has come due for a fair and balanced use of this public resource and that fish passage, minimum instream flows, and a mitigation trust fund dedicated to restoration of the upper Deschutes River must finally be a cost of the Applicant’s doing business on the river;
- Despite 80 years of admitted damage to this public resource by operation of this project for private gain, the Applicant, applying for yet another 30 to 50 year license, proposes absolutely no mitigation for the fishery — not even protective measures, let alone steps to mitigate past damage or enhance the fishery — in the face of the Applicant’s study showing that in 1990. some 40.000 fish passed through the Bend powerhouse. all of the samples of which were found·to be “dead or in poor condition;”
- In contrast to its destructive effects on the fishery, the generates only approximately .6 MWa of electricity; this to .0000295 of the Northwest’s firm energy capability and of the region’s peaking capability; and
- The Applicant has shown no need for even this minuscule amount of power; indeed, it is the only entity other than the Bonneville Power Administration that has a recallable contract for firm power exports out of the Northwest region (57 average megawatts). 
The National Environmental Policy Act (NEPA)  requires that the Commission engage in a full environmental review of the impacts of federal actions, including their cumulative impacts. In order to fulfill its responsibilities Under NEPA, the Commission must analyze the panoply of alternatives to the proposed action, including no action.
Moreover, in confederated Tribes and Bands of the Yakima Indian Nation v. Federation Energy Regulatory Commission, 746 F.2d 466, 476 (9th Cir. 1984), the Court of Appeals for the Ninth Circuit made it crystal clear that the decision to relicense a dam is to be evaluated by the Commission under NEPA as if it were a new license. “[T]he decision to relicense is to be based on the same inquiry as original licensing, including a consideration of all relevant harms and benefits to public uses related to the project.” The Court went on to note that “[t]he Commission must determine whether any changes in operations are required by ‘then existing’ law …”
Much has happened since the Commission first licensed this project in 1965, including the passage of the Pacific Northwest Electric Power Planning and Conservation Act (NWPA). That Act, which supplements the Commission’s duties under the Federal Power Act, directs the Commission to “protect, mitigate, and enhance fish and wildlife, including related spawning grounds and habitat, affected by … projects or facilities in a manner that provides equitable treatment for … fish and wildlife.”  Equitable treatment, the Court of Appeals for the Ninth circuit has instructed, means that the Commission has an obligation to place fish and wildlife concerns on an equal footing with power production.
In addition, in 1986, the Congress amended the Federal Power Act and, among other public interest considerations, directed the Commission to give equal consideration to energy conservation in its license decisions. The Commission must thus determine whether the . MWa proposed to be generated at the Bend Project could, if need be, recaptured in a conservation program rather than be generated at the expense of the Deschutes River fishery. The
Federal Power Act now instructs that the Commission:
shall consider … the electricity consumption efficiency improvement program of the applicant, including its plans, performance and capabilities for encouraging or assisting its customers to conserve electricity·cost-effectively…
Finally, if the Commission determines to issue a new license, it “shall include conditions for … protection. mitigation and enhancement” of fish and wildlife affected by the project. This means, we submit, that the Applicant’s proposal to continue to grind up the 40,000 or so fish that pass through its project each year, and to block passage to upstream spawning and rearing grounds necessary to the restoration of the fishery, cannot prevail.
But first, in order to fulfill its mandate under NEPA, the Northwest Power Act, and the Federal Power Act, the Commission must conduct a full review of the site-specific and cumulative impacts of relicensingtlie -Bend Project. This review must also address the cumulative impacts of the numerous dams and diversions in the Deschutes River Basin, as well as the continuing impacts of the Bend Project itself and its role in the cumulative impacts to the
Deschutes including the decline of its fishery.
This review must also consider the no-action alternative (including denial of power license with removal of project works, or issuance of non-power license) and the related issue of energy alternatives and conservation.
The City of Bend, the Bend Metropolitan Recreation District and the County of Deschutes, in addition to Conservation Intervenors, have called for a thorough examination of alternatives such as the issuance of a nonpower license. This alternative has not been adequately explored by the Applicant, as these intervenors have previously pointed out. It is incumbent on the Commission, according to the Court of Appeals for the Ninth Circuit, however,
fully to explore this option (as well as the removal of project works):
The Commission must also determine whether a non-power license should be issued. Non-power licenses may be issued at the motion of an interested party or on the Commission’s own motion. Seemingly, the Commission would determine that a non-power license is necessary if it concluded that power production needs were outweighed by recreational or environmental considerations. 
That certainly appears to be the case here; the Applicant, as it would have been against its financial interests, however, has not done a credible job of exploring those issues. The Court has directed the Commission to do so, however:
Both the consideration of what conditions to attach to a new license and the question involved in determining whether a non-power license is necessary necessitate the information prepared in an environmental impact statement. 
For the foregoing reasons, the undersigned Conservation Intervenors respectfully request the Commission to prepare a draft environmental impact statement investigating at least those issues contained in the attached proposed scope of work.
Dated this 4th day of February, 1993.
Document: american-rivers-EIS-request (PDF)
- Letter of April 24, 1992, from Dean L. Shumway, Director, Division of Project Review, to Mr. Stanley A. deSousa, Director, Hydro Resources, PacifiCorp, at Schedule A, p. 1, item 6.
- Northwest Power Planning Council, 1991 Northwest Conservation and Electric Power Plan, Volume II, Part I at 57.
- Id. at 61.
- 42 U.S.C. S 4332(2)(C).
- 16 U.S.C. S 839(h)(11)(A) (i).
- confederated Tribes and Bands of the Yakima Indian Nation v. FERC, 746 F.2d 466, 473 (9th Cir. 1984); National Wildlife Federation y. FEBC, 801 F.2d 1505, 1515 (9th Cir. 1986).
- 16 u.s.c. S 803(a)(2)(C).
- 16 u.s.c. S 803(j)(1) (emphasis added).
- National Wildlife Federation v. FERC, supra note 6, 801 F.2d -at 1507; LaFlamme v. F&RC, 842 F.2d 1063, 1072 (9th Cir. 1988).
- confederated Tribes. supra note 6, 746 F.2d at 476.
Document: american-rivers-EIS-request (PDF)