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.
The Commission recently explained its licensing jurisdiction as follows:
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.  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. 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). 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.
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.”
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. 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.
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
- 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).
- See Farmington River Power Co. v. Federal Power Commission, 455 F.2d 86 (2d Cir. 1972).
- 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.
- See Federal Power Commission v. Union Electric Co. (“Taum Sauk”), 381 U.S. 90, 97 (1965).
- Letter from S.A. DeSousa, PacifiCorp, to John H. Clements, FERC, dated April 18, 1995.
- See 381 U.S. at 98 n. 10.
- 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).