American Rivers, The Pacific Rivers Council, and Oregon Trout’s Comments

American Rivers, The Pacific Rivers Council (formerly The Oregon Rivers Council) and Oregon Trout (Conservation Intervenors) hereby submit their comments and recommendations pursuant to section 10(a) of the Federal Power Act (FPA), 16 u.s.c. S 803 (a), as amended, on the application of Pacificorp Electric Operations (PP&L or the Applicant) to relicense the Bend Hydroelectric Project.

I. Introduction: Background of the Bend Project

The Bend Hydroelectric Project was constructed in 1913 at River Mile (RM) 166 on the Deschutes River within the City of Bend, Deschutes County, Oregon. The project’s 14-foot high, 252 footlong dam impounds the 40-acre Mirror Pond Reservoir. The powerhouse contains three turbine generator units with a total installed capacity of 1.1 megawatts; however, the project generates only approximately .60 average megawatts annually.

Prior to dam construction, trout populations were abundant in the upper Deschutes River. These fish migrated freely through the upper Deschutes River to reach spawning grounds in the upper mainstem and tributaries. Today, however, rainbow and brown trout have declined significantly from their former numbers in the upper Deschutes, both below and above the Bend Project. While there are many reasons for this decline, the oregon Department of Fish and Wildlife (ODFW) has found — and PP&L admits — that the Bend Project has contributed significantly to it.

Recreational use of the Deschutes River also has been impaired by the Bend Project. There is limited recreational access to the river in the area of the Project, and reduced flows in the Project bypass reach limit recreational opportunities.

The Bend project license, which has controlled project operations since 1965, however, contains no conditions for fish passage, fish protection devices, such as a tailrace barrier, or minimum instream flow requirements for the bypass reach of the project to support fish spawning, rearing, and migration; nor have recreational flows ever been set for the bypass reach. What is worse, the Applicant has offered essentially to do nothing to improve conditions for migratory fish or recreationists, despite the fact that it has had free use of the river for decades and is asking for license to use it for yet another 30 to 50 years for private gain.

Full Document: American-Rivers (PDF)

Motion of American Rivers. the Pacific Rivers Council and Oregon Trout for an Environmental Impact Statement

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;”[1]
  • 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;[2] 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). [3]

The National Environmental Policy Act (NEPA) [4] 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.” [5] 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.[6]

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 .[6] 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…[7]

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.[8] 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.[9]

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. [10]

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. [11]

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)

  1. 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.
  2. Northwest Power Planning Council, 1991 Northwest Conservation and Electric Power Plan, Volume II, Part I at 57.
  3. Id. at 61.
  4. 42 U.S.C. S 4332(2)(C).
  5. 16 U.S.C. S 839(h)(11)(A) (i).
  6. 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).
  7. 16 u.s.c. S 803(a)(2)(C).
  8. 16 u.s.c. S 803(j)(1) (emphasis added).
  9. 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).
  10. confederated Tribes. supra note 6, 746 F.2d at 476.
  11. Id.

Document: american-rivers-EIS-request (PDF)

Agencies urge big look at little dam

Three governments with a stake in the fate of Mirror Pond are trying to convince federal decision-makers that a Bend hydroelectric project’s impact far outweighs it size.

In a joint submission being sent to Washington. D.C., today the city of Bend, Deschutes County and the Bend Metro Park and Recreation District are urging the Federal Energy· Regulatory Commission lo hold a local hearing on Pacific Power’s downtown hydro dam.

The company is seeking renewal of a 30·year license to operate the dam. The three entities want FERC to require a full environmental impact study. which could cost the company as much as $2 million.

They say such expense is warranted. even though the 83·year·old plant powers fewer than 500 homes and meets just 1 percent of Bend’s power needs. They want a chance to make their case in Bend.

The hydro project created Mirror Pond, which the local governments describe in their letter as a 40-acre Deschutes River reservoir that has become “a focal point of the community.”

Conservation groups, the Oregon Department of Fish and Wildlife and the U.S. Interior Department also have intervened. They are raising safety and environmental issues.

The local governments say Pacific Power “has not responded to these issues in any meaningful way.”

Their concerns· include the dam’s structural integrity and the effectiveness of on inflatable rubber tube. called a “crest.” that the company proposes to install along the top of the dam to prevent ice blockages.

Silt buildup caused by the dam is a major problem requiring periodic costly removal, they say. They cite one case in which a child became stuck waist-deep in silt.

Manv of the issues. such as ways to aid Deschutes river fish passage, need to be addressed even if the dam’s turbines are removed, the governments contend.

Duane Blackwelder, a Pacific Power employee, told city commissioners Wednesday that they could cut dredging costs by using a log to sweep the channel and pull up silt. He also raised a fairness issue, saying other dams along the river have escaped similar scrutiny because they don’t generate power.

Commissioner John Wujack responded, “We only have this opportunity for the next 30 years to improve this fish passage.”

Mayor Terry Blackwell said, “We didn’t say they have to dredge the pond, but to address the issue.”

Clark Satre, the company’s regional manager, said the agencies’ request for a larger study “implies that there have been no environmental studies or consideration, and that’s not tho case.”

The cost of energy from the plant, figured over a 30·year period, comes to 3.6 cents per kilowatt hour, compared to an estimated 4.7 cent cost for replacement power, Satre said.

He said, “One could argue that’s so small a difference, and so small a project, why would you worry about it? On the other hand, every resource is important as power demands increase.”

Source: The Bulletin ©1993

Comments, Recommendations, Terms and Conditions and Prescriptions from City, County, and Parks & Rec

VIA FEDERAL EXPRESS

February 4, 1993

Honorable Lois Cashell Secretary
Federal Energy Regulatory Commission
825 North Capitol Street, NE
Washington, D.C. 20426

Re: PERC Project No. 2643-001, Bend Hydroelectic Project

Dear Ms. Cashell:

Enclosed for filing with the Commission in the project referenced above are the original and 14 copies of COMMENTS, RECOMMENDATIONS, TERMS AND CONDITIONS AND PRESCRIPTIONS.

Copies of this document have been served on all parties listed on the attached certificate of service.

Sincerely,

John Hossick,
City of Bend Planning Director


The City of Bend, Oregon, Deschutes County, Oregon and the Bend Metropolitan Park & Recreation District jointly submit the following Comments, Recommendations, Terms and Conditions, and Prescriptions in~his proceeding.

1. The City of Bend, Deschutes County, and the Bend Metropolitan Park & Recreation District have previously intervened in this proceeding because they are the local government entities most directly affected by the project which is the subject of this proceeding. They will be referred to as “these intervenors” in this document. The comments of the City of Bend represent the comments of the Bend Development Board, as well as the City.

2. The project consists of a dam on the Deschutes River, related power generating facilities and Mirror Pond, a 40-acre reservoir that stretches upstream adjacent to the central downtown core and residential areas in the City of Bend. Drake Park and five other parks, owned and maintained by the Bend Metropolitan Park and Recreation District occupy 23 acres wlihirf the project reach. Drake Park is a focal point of the community. Mirror Pond and the adjacent Drake Park is an important aesthetic resource as well as recreational resource for the community. In addition to its aesthetic qualities, the Pond supports recreational use by canoeists, kayakers and casual fishermen. Immediately downstream from the project along the river lies the offices for the Bend Metropolitan Park and Recreation District and Pacific and Pioneer Parks. The stretch of river below the project is used by both fishermen and boaters.

3. Pursuant to 18 C.F.R. § 384.212 these 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 for the Bend Hydro Electric Project EIS. This request is based on the following grounds, which these intervenors believe raise substantial questions concerning significant degradation of human environmental factors:

3.1 The threshold requirement for protection of the public is identification of the exact environmental consequences that will be produced by this project. These environmental consequences can be much better identified and evaluated with an EIS, than without one.

3.2 The public safety and environmental issues which are set out below in this document demonstrate the need for preparation of an EIS. The nature and extent of the public safety and environmental considerations involved in these issues will be better identified and evaluated by the preparation of an EIS. This will in turn allow the Commission to fully exercise its planning and decision making responsibilities under the Federal Power Act.

3.3 In addition to the public safety and environmental considerations set out below which directly affect the City of Bend, Deschutes county and the Bend Metropolitan Park and Recreation District, other environmental issues have been raised by other intervening parties (i.e., American Rivers, Oregon Rivers Council, Oregon Trout, Oregon Department of Fish & Wildlife, u.s. Department of the Interior and others). The environmental issues raised by these other intervenors furnish additional support for requiring an EIS. These intervenors support those comments, except as they might be interpreted to call for removal of the dam.

3.4 These intervenors have previously raised the public safety and environmental issues set out below with the applicant PacifiCorp, both directly with applicant, and in this proceeding. Applicant has not responded to these issues in any meaningful way that would resolve the issues raised by these intervenors. This fact suggests very strongly that applicant either does not kno~ether there are adequate responses, or that adequate responses may not exist. This in turn provides a compelling reason for an environmental impact statement.

4. Irrespective of whether an EIS is prepared, this project raises many public safety and environmental issues which, under the Federal Power Act (as amended by the Electric Consumers Protection Act of 1986), the Pacific Northwest Electric Power Planning and Conservation Act, and the Fish and Wildlife Coordination Act, must be considered and provision made to mitigate adverse consequences produced by the project.

The Commission is required under section 10(a) of the Federal Power Act to assess project impacts in the context of a comprehensive plan for the entire basin. LaFlamme v. 842 F. 2d 1063 (9th Cir. 1988). Under the 1986 amendment to the FPA, state comprehensive plans are required to be given consideration by the commission. These intervenors assert that the status of the project as an existing project may not be used to lessen the burden on the applicant to demonstrate compliance with the Federal Power Act. Confederated Tribes and Bands of the Yakima Indian Nation v. FERC, 746 F 2d 466 (9th Cir. 1984), cert den 471 u.s. 1116, 105 s. ct. 2358, 86 L.Ed. 2d 259 (1985).

The identified public safety and environmental issues are raised whether the project is relicensed as a power generating facility or whether it is relicensed with a nonpower license and remains as a dam across the Deschutes River. These public safety and environmental issues include the following:

4.1 The structural integrity of the dam itself must be thoroughly evaluated as it now exists, and over the term of any relicensing period. This evaluation should include, but not be limited to, certification from a structural engineer verifying the soundness of the dam and any proposed modifications. severe flooding due to ice blockage caused by the dam has occurred in the past, and there are public safety concerns about the possibility of reoccurrence. The effectiveness of the rubber crest control device which is to be installed to alleviate ice damming must be verified. In addition the need to raise or lower water levels in Mirror Pond to deal with other public safety considerations (such as weed control, police searches, and dam maintenance), must be addressed. Provision must also be made for backup measures if the existing control devices fail.

4.2 Siltation is a major problem in Mirror Pond. This impacts the public safety, aesthetic, and recreational attributes of Mirror Pond. Considerable public funds have been spent in the past to dredge Mirror Pond. The siltation buildup is caused by the dam and the siltation will have to be removed on a regular basis.

These problems are aggravated by public presence in the pond during low water (i.e., children and pets have become exposed to the silt, and at least one child became stuck waist deep in the silt and had to be rescued by public authorities). There is a real possibility that hazardous materials, washed into Mirror Pond with storm water runoff, will combine with the siltation to produce a disastrous hazardous waste situation in the pond itself. Measures that must be taken by the applicant to deal with this issue are collection of data on the rate of siltation, chemical sampling of materials contained in the silt, development of ways and means to remove and dispose of the silt, and evaluation of the impact of the siltation on fisheries, upland habitat, adjoining residences, recreation, hydrology, and water quality. There must be a timetable for the removal of siltation, and a requirement that applicant pay the cost of remedying siltation problems caused by the project.

4.3 The public safety aspect of maintenance of the dam must be taken into account whether the project is relicensed as a power generating facility or not. Whether the project is not relicensed for power generation or not, provision must be made for relocation of the existing substation, and the property at the project should be in public ownership and developed for public recreational use. This would include maintaining the historic integrity of the powerhouse, and its possible designation as an historic site/structure. Provision must be made for access to the “island” downstream from the dam. The deteriorating condition of rock retaining walls along Mirror Pond, and the deferred maintenance required for the footbridge at Mirror Pond are matters of urgent public concern. Engineering surveys and cost estimates for remedial action must be obtained.

4.4 The City of Bend’s land use laws and regulations require that a conditional use permit be obtained for any modifications to the project. These land use laws and regulations are expressly for the protection of the public safety and welfare. The city of Bend’s zoning ordinance contains numerous requirements for granting a conditional use permit, and provides that the permit may be conditioned upon performance of various terms and conditions. One requirement is for a detailed plan for a water conservation and stream enhancement program to be funded by a portion of revenues generated by the operation of the proposed facility. see Bend Code Section 10.10.25(20) (d) (5). In addition to City zoning ordinance requirements, the City’s, County’s and Bend Metropolitan Park and Recreation District’s comprehensive plans and river studies all have some application to this site, and set out planning considerations that must be taken into account. The City of Bend is also in the process of adopting a river design review ordinance that will affect modifications to the project.

4.5 The Bend Development Board is the City of Bend’s Urban Renewal Agency, and the focal point of its Urban Renewal Plan is riverfront enhancement. This requires relocation of the existing power substation electrical apparatus because of its negative aesthetics, interference with recreational opportunities and obstruction of open space. Other objectives of the BDB are development of park improvements in the area, and provision for public access along the river. The BDB, as well as these intervenors are very much aware of the huge importance of Mirror Pond to the economic and social fabric of the Bend community. Tourism is a major economic activity, and the attractiveness of Mirror Pond is a major contributor to that activity. The Bend Chamber of Commerce has just completed a Tourism Impact study which shows that the visitor industry brings $328 million to the Central Oregon economy from 3,431,525 visitors a year.

4.6 Public recreation is an important environmental issue. The completion of the Deschutes River trail through downtown Bend is an important objective. Public access along the east bank of the river through applicant’s property.at and next to the project to connect Drake Park to Pioneer Park is an essential part of this objective. The trail easement should be a minimum of 40 feet wide along an approximate 800 foot stretch through applicant’s property. Other features of the trail include pedestrian passage under the Newport Bridge (which is just upstream from the dam), and acquisition of a trail easement from other private properties which are within the project reach. In addition to the trail, public recreational opportunities should include boat use, portages, landings and the like. Public canoe/kayak use requires minimum verifiable stream flows of 500 cfs in the bypass reach (this is one of only two areas with flowing river water in the city). These intervenors believe it is incumbent on the applicant to provide the recreational amenities described above. Provision for recreational opportunities is specifically contemplated by 16 u.s.c. § 803(a)(1), and 16 u.s.c. S 797(e).

4.7 Fisheries and wildlife are important aspects of the environmental issues raised by this project. These intervenors incorporate by reference the comments, Recommendations and Terms and conditions of the Oregon Department of Fish and Wildlife (ODFW) dated February 4, 1993, concerning this project on file with the Commission. Minimum verifiable stream flows of not less than 300 cfs in the bypass reach must be provided. Adequate provision for fish passage up and down stream must be provided, whether the project is relicensed as a power generation facility, or if it continues as a dam only. Spawning habitat enhancement, upland and riparian habitat protection, duck and goose population control, and rodent control are other features of the project that must be taken into account. The fishery issues are of particular importance to these intervenors, given that the u.s. Forest Service, Deschutes County, Oregon Department of Fish & Wildlife and local irrigation districts are cooperatively engaged in implementing a fisheries mitigation and enhancement program, funded in part by revenues from the COID project previously licensed by the commission. Improvement of fish passage and spawning opportunities along the mainstream Upper Deschutes, including the project reach, is an objective of these efforts. (See enclosed copy of Deschutes River Mitigation and Enhancement Program Plan, May 1991, by this reference incorporated herein.)

4.8 Funding to finance the cost of mitigating the project’s public safety and environmental consequences should be partially provided from the project’s revenues. The funding mechanism required by the commission for the Central Oregon Irrigation District’s co-generation project- FERC No. 3571) several miles upstream from this project can serve as a model. A portion of the project’s revenues should be placed in a fund, and the fund should be dedicated to assisting the financing of measures and acquisitions needed to meet the public safety and environmental issues raised by the project.
Because the project’s revenues are limited, applicant should be required to fund its responsibilities outlined here from other sources. The Deschutes River Trust is a fund that is being established by private groups interested in the river, and any such trust could he used for this purpose.

5. The undersigned local government entities also request that the commission conduct a field hearing in Bend so that the importance of these public safety and environmental issues concerning this project can be confirmed by public testimony, and an on-site evaluation of the project.

6. Because the commission has not completed the environmental review required by NEPA prior to calling for comments, these intervenors assert that the commission must provide an additional comment period, with notice, for additional comments, recommendations and prescriptions after making public the results of its environmental review.

DATED this 3rd day of February, 1993.

Respectfully submitted,
CITY OF BEND
By: Terry Blackwell, Mayor

DESCHUTES COUNTY, OREGON
By: Tom Throop, Chairman, Board of County Commissioners

BEND METROPOLITAN PARK & RECREATION DISTRICT
By: Ernie Drapela, General Manager

Full Document: city-county-parks-comments (PDF)