Notice of Availability of Navigability Report For the Deschutes River, Request for Comments, And Notice of Pending Jurisdictional Inquiry

UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION

PacifiCorp ) Project No. 2643-001

NOTICE OF AVAILABILITY OF NAVIGABILITY REPORT
FOR THE DESCHUTES RIVER, REQUEST FOR COMMENTS,
AND NOTICE OF PENDING JURISDICTIONAL INQUIRY

(July 24, 1995)

PacifiCorp has filed an application for a subsequent license to continue operating its Bend Hydroelectric Project No. 2643. The project is located on the Deschutes River in the City of Bend, Deschutes County, Oregon. As part of its review of PacifiCorp’s relicense application, the Commission staff is investigating the jurisdictional status of the project and has prepared a navigability report for the Deschutes River. The navigability report concludes that the Deschutes River is not navigable in the vicinity of the Bend Project. If the Commission accepts the staff’s conclusions regarding navigability, the likely outcome will be a Commission determination that the project is not required to be licensed pursuant to Section 23(b)(1) of the Federal Power Act (FPA). Because this determination may affect the resolution of matters at issue in the relicensing proceeding, all parties and interested persons are being given notice of the pending jurisdictional inquiry and an opportunity to comment on the navigability report. Comments may be filed no later than September 29, 1995.

Jurisdiction

The Commission recently explained its licensing jurisdiction as follows:[1]

Under the FPA, the Commission has two types of licensing jurisdiction: permissive and mandatory. Permissive licensing is authorized rather than required, and is governed by Section 4(e) of the FPA. Mandatory licensing is governed by Section 23(b)(1) of the FPA, which prohibits the unlicensed construction and operation of certain hydroelectric projects. Thus, it is possible for a voluntary applicant to obtain a license under Section 4(e) of the FPA for a project that would not require a license under Section 23(b)(1).

Under Section 23(b)(1) of the FPA, a license is required for a hydroelectric project if it: (1) is located on “navigable waters of the United States”; (2) occupies lands or reservations of the United States; (3) uses the surplus water or water power from a government dam; or (4) is located on a non-navigable Commerce Clause stream, affects the interests of interstate or foreign commerce, and has undergone construction or major modification after August 26, 1935. [2] If those conditions are not met, Section 4(e) of the FPA would permit licensing of a hydroelectric project in response to a voluntary application if the project is located on a Commerce Clause water.

The Commission staff has determined that the Bend Hydroelectric Project would not be located on federal lands or make use of a government dam. Therefore, whether licensing is required depends on whether conditions (1) or (4) above are met.

Regarding (4) above, the Commission staff has concluded that the Bend Hydroelectric Project is located on a non-navigable Commerce Clause stream within the meaning of Section 23(b)(1) of the FPA.[3] Because the Bend Project generates power for the interstate electric grid, the project affects the interests of interstate commerce within the meaning of Section 23(b)(1).[4] However, the project was constructed in 1913, and the Commission staff has found no evidence of any significant construction or major modification of the project after 1935.

Navigability

In these circumstances, whether licensing is required depends on whether the Bend Hydroelectric Project is located on a “navigable river of the United States.” The staff’s navigability report concludes that the Deschutes River is not navigable in the vicinity of the Bend Hydroelectric Project. It finds that, although portions of the Deschutes River are used by recreational boaters, especially white water rafters, both above and below the project site, the river is not navigable in the vicinity of the project. Popular areas for recreational boating include the upper Deschutes River, from Wickiup Dam to the area north of Bend, and the lower Deschutes River from Pelton Dam to the Columbia River. However, there are large sections of the river that are not used by rafters and boaters, including a section of about 32 river miles in the vicinity of the Bend Project, because of low water caused by irrigation projects, dangerous rapids and falls, and dams. The staff’s navigability report finds no evidence that the Deschutes River, from the project site to the Columbia River, was ever used or suitable for use for the transportation of persons or property in interstate or foreign commerce.

Comments are invited on the staff’s navigability report. If the Commission accepts the staff’s conclusions regarding navigability, the likely outcome will be a Commission determination that the Bend Hydroelectric Project is not required to be licensed under Section 23(b)(1) of the FPA.

Implications for Relicensing

As explained in the staff’s draft Environmental Assessment (EA), the Bend Hydroelectric Project has negative economic benefits under any proposed operating scenario. Moreover, because of the high cost of prescribed fishway facilities, the costs of operating the project under a subsequent Commission license greatly exceed the costs of decommissioning the project. The Commission staff is completing its environmental review of the relicensing proposal and alternatives, and expects to issue a final EA in the near future.

In recent correspondence with the Commission staff, PacifiCorp has stated that, if the Commission issues a subsequent license that includes mandatory fishways and other agency recommendations for fish and wildlife, the project will be uneconomic to operate. The licensee has further stated: “PacifiCorp is not likely to accept a new license proffered by the Commission for the Bend Project if such conditions are included.”[5]

If licensing is required under Section 23(b)(1) of the FPA, a hydroelectric licensee may not continue to operate its project without a license.[6] If licensing is not required, however, a hydroelectric licensee may, following expiration of its original license, either withdraw its relicense application or reject a new or subsequent license and continue to operate the project without a license under the FPA, subject only to whatever other federal, state, or local laws may be applicable.[7]

This suggests that the State of Oregon may ultimately be responsible for determining whether the Bend Project should continue to operate or should be decommissioned. Similarly, Oregon may ultimately be responsible for determining what conditions should be required, either for continued operation or for decommissioning. To ensure that state officials and all parties to the relicensing proceeding have advance notice of this possibility and of the preliminary navigability finding on which it is based, interested persons are being given notice of the pending jurisdictional inquiry and an opportunity to comment on the staff’s navigability report.

Concurrent with publication of this notice, all persons whose names appear on the official service list for the Bend relicensing proceeding will receive a copy of the navigability report. Additional copies are available for review in the Public Reference Branch, Room 3104, of the Commission’s offices at 941 North Capitol Street, N.E., Washington, D.C. 20426.

Comments on the navigability report should be filed with Lois D. Cashell, Secretary, Federal Energy Regulatory Commission, 825 N. Capitol St., N.E., Washington, D.C. 20426. Comments should be filed by September 29, 1995, and should reference Project No. 2643-001. For further information, please contact Linda S. Gilbert at (202) 208-5759.

Lois D. Cashell
Secretary

  1. Swanton Village, Vermont, 70 FERC ¶ 61,325 at pp. 61,992-93 (1995) (citations omitted).  See Cooley v. FERC, 843 F.2d 1464, 1471 (D.C. Cir. 1988), cert. denied, 109 S.Ct. 327 (1988).
  2. See Farmington River Power Co. v. Federal Power Commission, 455 F.2d 86 (2d Cir. 1972).
  3. The Deschutes River flows into the navigable Columbia River.  It is well-settled that Commerce Clause streams include the headwaters and tributaries of navigable rivers.  See 70 FERC ¶ 61,325 at p. 61,994.
  4. See Federal Power Commission v. Union Electric Co. (“Taum Sauk”), 381 U.S. 90, 97 (1965).
  5. Letter from S.A. DeSousa, PacifiCorp, to John H. Clements, FERC, dated April 18, 1995.
  6. See 381 U.S. at 98 n. 10.
  7. See Pennsylvania Electric Co., 56 FERC ¶ 61,435 (1991) (hydroelectric licensee with a voluntary license under Section 4(e) of the FPA need not file a relicense application and may continue operating without a license following expiration of the original license).

Final Environmental Assessment for Hydropower License

FINAL

ENVIRONMENTAL ASSESSMENT
FOR HYDROPOWER LICENSE

Bend Hydroelectric Project

FERC Project No. 2643-001
Oregon

Federal Energy Regulatory Commission
Office of Hydropower Licensing
Division of Project Review
825 North Capitol Street, NE
Washington, D.C. 20426

SUMMARY

PacifiCorp Electric Operations (PacifiCorp) has applied for a new license to continue operating the Bend Hydroelectric Project on the Deschutes River in the City of Bend, Oregon. The 1.1-megawatt project is about 80 years old and needs major rehabilitation to continue generating throughout a new license term. Due to the cost of rehabilitating the project, under PacifiCorp’s proposal, the cost to operate the project would be more than the cost of alternative power.

The major issue is the project’s effects on rainbow and brown trout–the turbine intakes are unscreened and no downstream or upstream fish passage facilities exist. The Department of the Interior (Interior) is requiring (under section 18 of the Federal Power Act) that PacifiCorp install downstream and upstream fish passage facilities to protect and enhance trout. The Oregon Department of Fish and Wildlife recommends similar measures.

Installing a downstream fish passage facility that adequately protects and directs trout downstream past the dam is so costly that it would cost less to retire the project. In our draft Environmental Assessment (EA), we recommended continued project operation without downstream fish passage and deferring installation of upstream fish passage to provide an appropriate balance of environmental and developmental resources.

In response to our draft EA, we received extensive comments from resource agencies and other entities concerning our assessment of the trout and our preliminary recommendations. Many commentors said we underestimated the project’s impact on trout, undervalued the trout resource and the project’s power benefits, and overstated the costs of the project. Interior reaffirmed its position of requiring upstream and downstream fishways.

In preparing the final EA, we reviewed all comments and reassessed the environmental and developmental impacts of the proposed action and alternatives. We conclude that the project’s effect on trout and the value of the trout resource are greater than our draft EA shows. However, the value of the project’s power benefits shown in the draft EA is higher than what is shown in this final EA because of a change in the method we use to assess project economics.[1]

When we consider the project’s ongoing adverse impacts to trout, the efforts being made to improve the upper Deschutes River trout fishery, the existing and potential value of the trout fishery, and the importance of protecting resident fish within the Columbia River Basin, we conclude that upstream and downstream fishways may be appropriate for the project; however, we don’t think the potential fishery benefits justify the cost of providing fishways unless (1) adequate fishery flows are provided below North Canal dam, which is located 1.2 miles downstream of the Bend hydro dam and where all but about 35 cfs of the river’s flow is diverted during the summer for irrigation, and (2) passage facilities are provided at the North Canal dam. Until these measures are provided at the North Canal dam, the full benefits of providing fishways at the Bend Project won’t be realized.

However, because Interior’s prescription for upstream and downstream fish passage requires immediate installation of these facilities, we include them in our preferred alternative for project continuation. Because the cost of these facilities makes project continuation much more costly than project retirement, we also identify a preferred project retirement alternative.

Our preferred alternative for project continuation consists of PacifiCorp’s proposal with the following additional measures: (1) provide upstream fish passage using a vertical-slot fishway; (2) install a tailrace barrier; (3) release a continuous minimum flow (instead of the proposed target minimum flow); (4) provide downstream fish passage using vertical plate screens in the forebay; (5) provide adult fish habitat improvements in the bypass reach; and (6) participate in funding future sediment removal costs.

Our preferred project retirement alternative consists of PacifiCorp modifying the dam to: (1) ensure structural integrity–including removing the turbines from the intake bays and sealing the intakes with concrete, (2) control ice build-up and flooding, (3) maintain normal pool elevation in Mirror Pond, (4) decrease the potential for mortality of fish from fish passing over the dam and striking the wooden sill at the base of the dam, and (5) allow for a future upstream fishway.[2]

Our preferred project retirement alternative also includes PacifiCorp: (1) protecting trout habitat by limiting in-river construction activities to between October 15 through February 15, (2) minimizing the impact new and reconstructed facilities would have on visual resources, (3) protecting the cultural integrity of the project site during dam rehabilitation, (4) minimizing erosion and sedimentation during dam rehabilitation, and (5) revegetating any areas disturbed by rehabilitation activities.

Our preferred alternative for project continuation would cost PacifiCorp about $770,000 annually, whereas retiring the project has negative net benefits of about $260,000 to $300,000 per year to PacifiCorp, depending on whether an upstream fishway is installed. Project retirement would also involve additional annual costs of about $71,000 per year for continued maintenance and dredging. Who would bear these costs is unclear.

  1. The Commission recently adopted a new method of economic analysis in which replacement power is based on current costs.  See Mead Corporation, Publishing Paper Division, 72 FERC Para. 61,027 (July 13, 1995).
  2. Our preferred project retirement alternative does not include an upstream fish passage facility because the benefits of requiring it at this time is limited by the lack of fish passage facilities at the North Canal dam and low summer flows directly downstream of the North Canal dam.  Downstream passage would be provided by spilling water over the dam.

Full Document (273 page PDF): Final Environmental Assessment for Hydropower License 

Notice of Availability of Environmental Assessment

UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION

PacifiCorp Electric Operations

) Project No. 2643-001
) Oregon

NOTICE OF AVAILABILITY OF ENVIRONMENTAL ASSESSMENT

(July 17, 1995)

In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission’s (Commission’s) Regulations, 18 CFR Part 380 (Order No. 486, 52 F.R. 47897), the Office of Hydropower Licensing has reviewed the application for a subsequent license for the existing Bend Hydroelectric Project, located on the Deschutes River, in Deschutes County, Oregon, in the City of Bend, and has prepared a final Environmental Assessment (EA) for the project. In the EA, the Commission’s staff has analyzed the existing and potential future environmental effects of the project and concludes that either issuance of a new license for the proposed project, with staff preferred measures, or retiring the project with staff preferred measures, would not be a major federal action significantly affecting the quality of the human environment.

Copies of the EA are available for review in the Public Reference Branch, Room 3104, of the Commission’s offices at 941 North Capitol Street, N.E., Washington, D.C. 20426.

 

Lois D. Cashell
Secretary