Statement of Generation in KWhs for Hydropower 2000

David P. Boergers
Federal Energy Regulatory Commission
888 First Street, NE
Washington, DC 20426

Subject: Statement of Generation in kWhs for Hydropower Annual Charges for all PacifiCorp Licensed Projects

Dear Mr. Boergers:

I, Randy A Landolt, being duly sworn, depose and say: That I am the Director of Hydro Resources for PacifiCorp, and make this affidavit for and on behalf of PacifiCorp; that the total gross electric generation at the licensed hydroelectric projects, for the period of October 1, 1999, through September 30, 2000, as shown on the books and records of PacifiCorp, is 4,932,936,000 kilowatt hours as detailed on the attached table which lists the generation at each project.

Sincerely,

R. A Landolt
Director, Hydro Resources

 kwh2000

Document: Hydro-KWH-2000 (PDF)

FERC to OWRD: “FERC no longer has jurisdiction”

Mr. Barry F. Norris
Dam Safety Section
Oregon Water Resources Department
158 12th Street NE
Salem, Oregon 97310-0210

Dear Mr. Norris:

By a March 4, 1996 Order (copy enclosed), the Federal Energy Regulatory commission approved the withdrawal of license application for the Bend Hydroelectric Project No. 2643, filed by PacifiCorp Electric Operations on January 16, 1996. Upon withdrawal of this license application, the FERC no longer has jurisdiction for this project. Jurisdiction is now under the State or Oregon.

The project is located on the Deschutes River in the city of Bend, Oregon. It is classified as a “Low” hazard potential structure based on criteria established in the FERC Guidelines for the Evaluation of Hydropower Projects. Our last operational report dated August 26, 1994, identified some broken wooden planks on the downstream face of the 14-foot-high rockfill timber crib dam. It is our understanding that the required repairs have been made, and the vertical timber planks controlling the low level slots or sluices were replaced when needed. We are not aware of any conditions that indicate immediate hazard to the project. PacifiCorp continues to operate this project.

If you have any questions or require any additional information, please contact me or Mr. Chin Lee of this office at (503) 326-5858, ext. 228.

Walter S. Boyle
Acting Regional Director

Document: ferc-to-owrd (PDF)

Order denying rehearing, denying motion for stay pending an administrative hearing, and approving withdrawal of license application

UNITED STATES OF AMERICA74 FERC ¶61,262
FEDERAL ENERGY REGULATORY COMMISSION

Before Commissioners: Elizabeth Anne Moler, Chair;
Vicky A. Bailey, James J. Hoecker, William L. Massey, and Donald F. Santa, Jr.

PacifiCorp Electric Operations ) Project No. 2643-002

ORDER DENYING REHEARING, DENYING MOTION
FOR STAY PENDING AN ADMINISTRATIVE HEARING,AND APPROVING WITHDRAWAL OF LICENSE APPLICATION

(Issued March 4, 1996)

In this order, we deny requests for rehearing of our order of December 22, 1995[1], in which we found that PacifiCorp Electric Operations (PacifiCorp) is not required to obtain a license to continue operating its Bend Hydroelectric Project No. 2643.[2] We also deny a motion for a stay pending an administrative hearing, and approve PacifiCorp’s withdrawal of its license application for the project.

BACKGROUND

A detailed procedural history of this proceeding appears in our December 22 order and will not be repeated here. In that order, we found that the Bend Project is not required to be licensed pursuant to Section 23(b)(1) of the Federal Power Act (FPA), because a substantial reach of the Deschutes River is not navigable in the vicinity of the project, and the project has not undergone construction or major modification after 1935.[3] Because PacifiCorp had stated that it would not likely accept a subsequent license for the project,[4] we directed the licensee to file either a notice of withdrawal of its application or a request that the Commission continue processing the application.

On January 16, 1996, PacifiCorp filed a notice of withdrawal of its application pursuant to 18 C.F.R. § 385.216. That same day, the U.S. Department of the Interior (Interior) filed a motion in opposition to the withdrawal. On January 22, 1996, the following parties filed timely requests for rehearing of the December 22 order: Interior; Trout Unlimited; and American Rivers, Pacific Rivers Council, and Oregon Trout (Conservation Parties).[5] Trout Unlimited also filed, in the alternative, a motion for a stay pending an administrative hearing on the jurisdictional issues raised.[6]

On rehearing, the parties once again take issue with two main aspects of our decision: navigability of the Deschutes River in the vicinity of the Bend Project, and construction or major modification of the project after 1935. They also raise several related jurisdictional and procedural issues. We examine their arguments below.

DISCUSSION

A. Navigability of the Deschutes River

Conservation Parties argue that the information provided to the Commission in comments on the staff’s navigability report is sufficient to establish that the Deschutes River is used or susceptible to use as a navigable waterway in interstate commerce. They cite the declarations of Morgan Smith, Bruce Mason, Loren Hall, and Bob Woodward, which they assert “describe extensive boating by kayakers and canoeists in the reach between Bend and Oden Falls, and between Lake Billy Chinook to the lower dam of the Pelton-Round Butte Hydroelectric Complex.”[7] They maintain that independent confirmation of this is demonstrated by Soggy Sneakers, A Guide to Oregon Rivers, published by The Mountaineers.[8] They take issue with our characterization of the degree of difficulty of the river reaches in question, and assert that we improperly considered low flows caused by dams and irrigation withdrawals. They also argue that the approximately 20-mile segment of falls and rapids between the City of Bend and Oden Falls is a “mere interruption” and meets the definition of navigable waters in Section 3(8) of the FPA.

We found in our December 22 order that the 20-mile reach of the Deschutes River from the City of Bend to Oden Falls consists primarily of class 4 or greater rapids.[9] This class of whitewater is dangerous and difficult, and requires an advanced level of skill.[10] We recognize that recreational boating may provide evidence of a river’s suitability for “the simpler types of commercial navigation.”[11] However, we do not believe that recreational use by skilled kayakers demonstrates such suitability. In Pennsylvania Electric, when presented with similar facts regarding recreational whitewater use by kayakers, we found the river in question nonnavigable.[12] We find no basis for departing from that precedent here.

Nor may we properly regard a 20-mile reach of rapids and falls as an “interruption” that should be automatically included as navigable waters under Section 3(8) of the FPA. That section defines navigable waters to include interrupting “falls, shallows, or rapids compelling land carriage.”[13] The purpose of this broad definition was to ensure comprehensive control over the Nation’s waters, and to prevent the steep gradients, falls, shallows and rapids that frequently occur at hydroelectric generation sites from themselves becoming a bar to the Commission’s jurisdiction if the stream is otherwise navigable.[14] We find nothing to suggest that it was intended to define as navigable substantial river segments not otherwise suitable for commercial navigation.[15] We therefore reject Conservation Parties’ argument that the approximately 20-mile segment in question is an “interruption . . . compelling land carriage” within the meaning of Section 3(8) of the FPA.

Conservation Parties also argue that the reach occupied by the Pelton-Round Butte complex is also a “mere interruption” in navigability. They maintain that we improperly considered dams and irrigation diversions in this segment of the river as impediments to navigability.[16] They correctly point out that navigable waters include streams which were navigable in their natural state although they may not now meet that standard.

As we pointed out in our December 22 order, the staff mentioned dams and irrigation diversions in its navigability report because they affect current use of the river; it did not and could not rely on these features as a basis for finding the river stretches nonnavigable. We reiterate that the staff found these stretches not suitable for commercial navigation because they are characterized by a series of dangerous, high falls and rapids. Conservation Parties have not presented evidence to contradict this conclusion.

B. Construction or Major Modification After 1935

Conservation Intervenors argue that PacifiCorp has proposed modifications to the Bend Project that would allow the project to operate differently from its pre-1935 design and that, therefore, these modifications constitute “construction” or “significant modifications” within the meaning of Section 23(b)(1) and (2) of the FPA. They maintain that adding remote and automatic headwater level controls and reducing seepage would necessarily seem to increase head and generating capacity, as would modifying the powerhouse to improve operating reliability.

We examined these proposed modifications in our December 22 order and found that they would not increase either head or generating capacity. PacifiCorp has proposed to remove the flashboards from the top of the dam and replace them with an inflatable crest-control structure. As shown on the drawings filed with the license application, neither the height of the dam nor the reservoir elevation will increase.[17] Although headwater levels will be controlled automatically rather than manually, the available head for hydroelectric generation will not increase. Nor will reducing seepage or using the crest-control structure to allow ice passage affect hydroelectric generating capacity.

Conservation Intervenors appear to be arguing that if repairs allow a project to operate “any differently from its pre-1935 design,” regardless of the significance of the change, the repairs must constitute post-1935 construction within the meaning of Section 23(b)(1).[18] This distorts and misapplies the statutory standard. Repairs often extend the useful life of a facility and allow it to operate more reliably. They also can involve minor changes in the way a facility is operated. But, as we explained in our December 22 order, if repairs or improvements do not increase the project’s head, generating capacity, or water storage capacity, or otherwise significantly modify the project’s pre-1935 operation, they do not constitute post-1935 construction.

C. The Commission’s Relicensing Jurisdiction

Interior argues that our determination that we do not have jurisdiction to require relicensing of the Bend Project is contrary to the intent of the FPA. Interior asserts that neither Section 4(e) nor Section 23(b)(1) addresses the Commission’s jurisdiction to relicense a project over which it has already asserted jurisdiction. Once the Commission has determined that the project affects the interests of interstate commerce and has issued it an original license, Interior argues, there is no jurisdictional impediment to relicensing the project under Section 15 of the FPA. Interior maintains that allowing projects to “opt out” of our jurisdiction on relicensing is inconsistent with the primary purpose of the FPA: to provide comprehensive control over the uses of the Nation’s water resources.

Interior also argues that Farmington is inapplicable to this case, because it involved the Commission’s authority to issue an original license for a project that had never before been licensed. Interior argues that, in that case, the court simply held that the 1935 amendment to Section 23 could not be applied retroactively to require an owner of an existing project on a nonnavigable stream to seek an original license; it did not address the relicensing of an already-licensed project. In essence, Interior asserts that the post-1935 construction requirement applies only to a declaration of intention that may precede original licensing, and that there is no such requirement when a project with a voluntary license under Section 4(e) seeks relicensing.

As noted in our December 22 order, we considered and rejected these arguments in Pennsylvania Electric.[19] Interior’s view would require us to determine that Sections 4(e) and 23(b)(1) are inapplicable at relicensing, and that the source of our relicensing jurisdiction stems exclusively from Sections 14 and 15 of the FPA. We have examined this issue in detail elsewhere, and reiterate our conclusion that Section 4(e) is applicable to relicensing as well as to original licensing proceedings[20]. Moreover, we find nothing in the FPA to suggest that if an applicant accepts a voluntary license under Section 4(e), it is forever barred from operating without a license under the FPA once its original license expires. The essence of a voluntary license under Section 4(e) is that the applicant may choose whether or not it wishes to enjoy the benefits and assume the corresponding responsibilities that federal licensing entails.

We also reject Interior’s argument that Farmington is inapplicable where relicensing is involved. In that case, the court construed the “intending to construct” provision of Section 23(b)(1) and concluded that this language applies to new projects rather than those already in existence. Existing projects are “grandfathered,” and their owners need not file a declaration of intention unless they propose substantial new construction or major modification of their projects that can be considered “construction” within the meaning of that section.[21] A project issued a voluntary license under Section 4(e) is by definition not subject to Section 23(b)(1), and the mere fact that it is the subject of a relicense proceeding does not bring it under Section 23(b)(1). Rather, like the project at issue in Farmington, the Bend Project will come under the terms of that section only if it is to be the subject of substantial new construction or major modification.

D. Administrative Hearing and Stay Requests

Trout Unlimited argues that the record is not sufficient to support our decision and that we should stay any Commission action regarding the disposition of our jurisdiction, such as withdrawal of the license application, pending a hearing on jurisdictional issues before an administrative law judge.[22] In support, Trout Unlimited maintains that no party will be harmed by maintaining the status quo, but the parties will have to invest significant resources regarding transfer of jurisdiction to the State of Oregon, especially if the Commission later “revisits” its decision.

We find no basis in the record for setting these issues for an evidentiary hearing. There are no material facts in dispute. Nor are matters at issue that require the test of cross- examination for their satisfactory resolution. Rather, the controversy concerns the legal significance of facts already on the record as a result of notice-and-comment hearing procedures provided for in our hydroelectric licensing regulations.[23] Thus, they are primarily legal issues or mixed issues of law and fact that need not be resolved by a trial-type hearing.[24]

In these circumstances, we find no basis for any further stay of effectiveness of our jurisdictional determination in this case.[25] Since we have found that we have no jurisdiction to require PacifiCorp to obtain a subsequent license to continue operating the Bend Project, we similarly lack a legal basis for refusing to allow PacifiCorp to withdraw its license application. We therefore approve that withdrawal.

The Commission orders:

(A) The requests for rehearing of our order issued in this proceeding on December 22, 1995, filed by the U.S. Department of the Interior; Trout Unlimited; and American Rivers, Pacific Rivers Council, and Oregon Trout on January 22, 1996, are denied.

(B) The request for a stay pending an administrative hearing on jurisdictional issues, filed by Trout Unlimited on January 22, 1996, is denied.

(C) The notice of withdrawal of license application for the Bend Hydroelectric Project No. 2643, filed by PacifiCorp Electric Operations on January 16, 1996, is approved.

By the Commission.

( S E A L )
Linwood A. Watson, Jr.,
Acting Secretary.

  1. 73 FERC ¶ 61,365.
  2. The project is located on the Deschutes River in the City of Bend in Deschutes County, Oregon.
  3. As explained in our December 22 order, licensing is required under Section 23(b)(1) of the FPA if a project:  (1) is located on a navigable river; (2) occupies U.S. lands or reservations; (3) uses surplus water or water power from a government dam; or (4) is located on a non-navigable Commerce Clause water, affects interstate or foreign commerce, and has undergone construction or major modification after 1935.
  4. As explained in our December 22 order, a subsequent license is a particular type of new license (or relicense).  See 73 FERC at n. 1.
  5. In its request for rehearing, Trout Unlimited adopts the positions advanced in Conservation Parties’ rehearing request regarding jurisdiction, navigability, and post-1935 construction.  Interior incorporates by reference its arguments and comments on the staff’s navigability report.
  6. On February 1, 1996, the Oregon Department of Fish and Wildlife filed an untimely request for rehearing in which it incorporated by reference the grounds asserted in Interior’s rehearing request.  On February 15, 1996, the Commission Secretary issued an order granting rehearing for further consideration of the timely rehearing requests and rejecting the Oregon Department’s untimely rehearing request.
  7. Request for rehearing at 1.  The declarations of Morgan Smith, Bruce Mason, and Loren Hall are appended to the National Wildlife Federation’s comments on the staff’s navigability report (filed September 29, 1995).  The declaration of Bob Woodward and a second declaration of Morgan Smith are appended to American Rivers’ additional evidence of navigability (filed November 27, 1995).
  8. Relevant portions of this publication (particularly pp. 236-238) are appended to Conservation Parties’ comments on the navigability report (filed September 29, 1995).
  9. Upon closer examination of the evidence presented, we find that the segment of interrupting rapids and falls is actually about 46 miles long. In our December 22 order, we incorrectly identified the Bend project as being located at river mile 160; in fact, the Bend Project dam is located at river mile 166, and the Bend urban growth boundary is at river mile 160. See Environmental Assessment at 16, Figure 4, and National Wildlife Federation comments at 3-4. Therefore, the segment of the Deschutes River from below the Bend Project dam to Oden Falls is about 26 miles long instead of 20 miles as stated in our order. Soggy Sneakers rates both the 5-mile stretch from below the Bend Project to Tumalo State Park (about river miles 165 to 160) and the 15-mile stretch from Lower Bridge to Lake Billy Chinook (river miles 135 to 120) as Class 4 or greater, with some Class 3 drops and one 2-mile stretch of class 1-2 rapids. Morgan Smith states that the segment downriver from Tumalo State Park to Lower Bridge, which includes Cline Falls (river mile 145), is Class 2 if the two waterfalls are portaged, and Class 4-5 if the falls are run. Declaration of Morgan Smith, par. 4 (November 27, 1995). In our December 22 order, we were primarily concerned with the segment from below the Bend Project dam (river mile 166) to Oden Falls (river mile 140). Although we noted that the staff’s navigability report recognized the segment from Oden Falls to Lake Billy Chinook (river miles 140 to 120) as “suitable for boating,” the report did not differentiate types of boating or levels of difficulty for this segment. Based on the ratings from Soggy Sneakers identified above, most of this reach (river miles 135 to 120) is also Class 4 or greater. Thus, under the standard articulated in our December 22 order, we would regard the entire 46-mile segment as nonnavigable under the FPA. However, because we find that even a 20-mile segment of interrupting rapids and falls is sufficiently long to support a finding of non-navigability under the FPA, we need not separately address the additional 26 river miles.
  10. See American Red Cross, Canoeing and Kayaking at Figure 5-11, pp. 5.14 to 5.15 (1981), quoting the Safety Code of the American Whitewater Affiliation as follows:  “Class IV.  Long, difficult rapids with constricted passages that often require precise maneuvering in very turbulent waters.  Scouting from shore is often necessary, and conditions make rescue difficult.  Generally not possible for open canoes.  Boaters in covered canoes and kayaks should be able to Eskimo roll.”  See also 73 FERC at n. 24.
  11. United States v. Appalachian Electric Power Co., 311 U.S. 377, 416 (1940).
  12. Pennsylvania Electric Co., 56 FERC ¶ 61,435 at pp. 62,549-50 (1991).
  13. 73 FERC at n. 17.
  14. See Federal Power Commission v. Union Electric Co., 381 U.S. 90, 101 (1965); Sierra Pacific Power Co. v. FERC, 681 F.2d 1134, 1139 (9th Cir. 1982).
  15. The reported cases support this view.  In New York v. FERC, the court found the Salmon River navigable despite the interruption of a single 110-foot waterfall, because the river had historically been used both above and below the falls for transportation and for floating logs downstream.  954 F.2d 56, 60-61 (2d Cir. 1992).  In Sierra Pacific v. FERC, a 14-mile stretch of river that was neither used nor suitable for navigation was sufficient to render the Truckee River nonnavigable, because it lacked a navigable interstate linkage by water.  681 F.2d 1134, 1138 (9th Cir. 1982).  In Muckleshoot Indian Tribe v. FERC, the court found that a 21-mile “difficult stretch of river” could not be considered a “mere interruption.”  993 F.2d 1428, 1433 (9th Cir. 1993).
  16. In our December 22 order, we identified the river reach from below Lake Billy Chinook to the lower dam of the Pelton-Round Butte complex as river miles 120 to 100, as indicated on the map included in the staff’s navigability report.  In fact, it appears that Lake Billy Chinook occupies river miles 120 to 110.  See Final EA at 16 and National Wildlife Federation comments at 4.
  17. See Application for License, Exhibit F, Sheet F-2 (filed December 24, 1991).
  18. Puget Sound Power and Light v. FERC, 557 F.2d 1311, 1316 (9th Cir. 1977).
  19. 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).
  20. See City of Pasadena Water and Power Dept., 46 FERC ¶ 61,004 at pp. 61,011-12 (1989).
  21. See Puget Sound, note 18 supra, at 1315 (“the statute is to apply only to projects begun after the effective date in 1935”).
  22. Although not requesting a stay, Interior also maintains that we should not approve withdrawal of Pacificorp’s pending license application until the issue of our jurisdiction is finally resolved and we have either decommissioned the project or transferred it to another competent regulatory agency.  Motion in Opposition to Notice of Withdrawal at 1 (filed Jan. 16, 1996).
  23. See 18 C.F.R. § 4.34(b).
  24. See City of Seattle, Washington v. FERC, 923 F.2d 713, 715-16 (9th Cir. 1991); Sierra Association for Environment v. FERC, 744 F.2d 661 (9th Cir. 1984).
  25. As explained in our December 22 order, Interior’s motion in opposition to PacifiCorp’s notice of withdrawal of its license application had the effect of staying the withdrawal pending our order accepting the withdrawal.  See 73 FERC at n. 33; 18 C.F.R. § 385.216(b).

Document: Final-word-from-FERC (PDF)

Order Granting Rehearing for Further Consideration and Notice Rejecting Untimely Request for Rehearing

UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION

PacifiCorp Electric Operations ) Project No. 2643-002

ORDER GRANTING REHEARING
FOR FURTHER CONSIDERATION AND NOTICE REJECTING
UNTIMELY REQUEST FOR REHEARING

(Issued February 15, 1996)

The U.S. Department of the Interior; Trout Unlimited; and American Rivers, Pacific Rivers Council, and Oregon Trout have timely requested rehearing of the Commission’s order of December 22, 1995, finding licensing not required in this proceeding. 73 FERC ¶ 61,365. In the absence of Commission action within 30 days, the requests for rehearing would be deemed denied. 18 C.F.R. § 385.713. In order to afford additional time for consideration of the matters raised, rehearing of the order is granted for the limited purpose of further consideration. As provided in 18 C.F.R. § 385.713(d), no answers to the rehearing request will be entertained.

On February 1, 1996, the Oregon Department of Fish and Wildlife filed an untimely request for rehearing, incorporating by reference the grounds for rehearing advanced in Interior’s rehearing request. Section 313(a) of the Federal Power Act requires an aggrieved party to file its request for rehearing within 30 days after the issuance of a Commission order. 16 U.S.C. § 825l. The deadline for filing a request for rehearing was January 22, 1996. Since the rehearing deadline is statutorily based, and the Oregon Department of Fish and Wildlife did not file its request within the statutorily prescribed period, the request for rehearing is rejected. This rejection constitutes final agency action. Requests for rehearing by the Commission may be filed within 30 days of the date of issuance of this notice, pursuant to 18 C.F.R. § 385.713.

Lois D. Cashell
Secretary

Notice of Withdrawal of License Application

UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION

PacifiCorp Project No. 2643 – 001

Notice of Withdrawal of License Application

Pursuant to 18 C.F.R. § 385.216, PacifiCorp, applicant for license herein, hereby gives notice of its withdrawal of its pending application for hydroelectric license.

Thomas H. Nelson
STOEL RIVES LLP·
900 S.W. Fifth Avenue
Portland, OR 97204-1268
Tel: (503) 294-9281
Of Attorneys for PacifiCorp

Dated: January 3, 1996

Document: Notice of Withdrawal of License Application (PDF)

Order Finding Licensing Not Required

UNITED STATES OF AMERICA 73 FERC ¶ 61,365
FEDERAL ENERGY REGULATORY COMMISSION

Before Commissioners: Elizabeth Anne Moler, Chair;
Vicky A. Bailey, James J. Hoecker, William L. Massey, and Donald F. Santa, Jr.

PacifiCorp Electric Operations ) Project No. 2643-001

ORDER FINDING LICENSING NOT REQUIRED

(Issued December 22, 1995)

Pending before the Commission is an application filed by PacifiCorp Electric Operations (PacifiCorp) 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 in Deschutes County, Oregon. As part of its review of PacifiCorp’s application, the Commission staff prepared and issued for public comment a navigability report, which concludes that the Deschutes River is not navigable in the vicinity of the Bend Project. As explained below, we accept the staff’s conclusions and find that the Bend Project is not required to be licensed pursuant to Section 23(b)(1) of the Federal Power Act (FPA).

Background

PacifiCorp filed its application for a subsequent license for the 1.1 megawatt Bend Project on December 24, 1991.[1] The staff issued public notice of the application on May 6, 1992, and several parties intervened in response to the notice.[2] On December 7, 1992, the staff issued notice that the application was ready for environmental analysis, and set a deadline of February 5, 1993, for filing recommendations, terms and conditions, and prescriptions. Among other things, the Department of the Interior (Interior) prescribed upstream and downstream fish passage facilities for the project under Section 18 of the FPA.

The staff issued a draft Environmental Assessment (EA) on August 31, 1993. In the draft EA, the staff examined PacifiCorp’s relicensing proposal, PacifiCorp’s proposal with agency- and staff-recommended environmental measures, continued operation under the terms and conditions of the existing license, and project retirement. Among other things, the staff found that installing a downstream fish passage facility that would direct trout past the dam would be so costly that it would cost less to retire the project. In the draft EA, the staff recommended continued project operation without downstream fish passage and deferral of upstream fish passage to provide an appropriate balance between environmental and developmental resources.[3]

The staff received extensive comments from resource agencies, parties, and members of the public. Many commenters suggested that the staff had 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 prescription of upstream and downstream fishways. In a letter dated March 24, 1994, PacifiCorp informed the Commission that if Interior did not withdraw its fishway prescription, PacifiCorp might decide to retire the project. PacifiCorp also requested that decommissioning issues be considered in a separate proceeding. The staff responded on May 9, 1994, that a separate proceeding would not be necessary, but that the parties should continue to explore these issues in their ongoing settlement negotiations.

On December 14, 1994, while the staff was analyzing comments on the draft EA for the project, the Commission issued its Policy Statement on Project Decommissioning at Relicensing.[4] Among other things, the Policy Statement made clear that the Commission would not necessarily deny a new or subsequent license on the grounds that additional costs imposed at relicensing would render a project uneconomic. Rather, if a license could be fashioned to meet the requirements of the FPA, the Commission would issue the license and allow the licensee to determine whether to accept it and continue operating, or to decommission the project.[5] The Policy Statement also made clear that, if a project is to be decommissioned, it would not be appropriate to require the licensee to install new facilities, such as fish ladders.

On February 8, 1995, the staff held meetings with representatives of Interior and the Oregon Department of Fish and Wildlife to attempt to resolve the staff’s preliminary determination that some of these agencies’ fish and wildlife recommendations under Section 10(j) of the FPA might be inconsistent with the comprehensive development standard of Section 10(a)(1) of that act. At those meetings and during a subsequent public discussion period, many people raised issues concerning project retirement and the Commission’s decommissioning policy statement. At one point, counsel for PacifiCorp questioned the Commission’s authority to require a surrender application to oversee the process of project retirement.

In anticipation of an order that would address both licensing and project retirement issues, the staff investigated the jurisdictional status of the project and prepared a navigability report for the Deschutes River.[6] The staff also prepared a draft memorandum of agreement (MOA) on historic preservation issues to address the Commission’s responsibilities under Section 106 of the National Historic Preservation Act. On April 18, 1995, PacifiCorp declined to sign the proposed MOA, explaining that, if the Commission issued a subsequent license with mandatory fishways and other agency recommendations for fish and wildlife, the project would be uneconomic to operate. The licensee added: “PacifiCorp is not likely to accept a new license proffered by the Commission for the Bend Project if such conditions are included.”[7]

Because the jurisdictional status of the project could affect whether the project would have to be decommissioned if the licensee did not accept a new license, the staff decided to address jurisdiction before preparing a licensing order.[8] Accordingly, on July 24, 1995, the staff published a notice of availability of its navigability report for the Deschutes River and requested that comments be filed no later than September 29, 1995. At around the same time, on July 17, 1995, the staff issued its final EA for the project.

The following agencies and organizations, some of which are parties to the Bend relicensing proceeding, filed comments on the navigability report: Interior; City of Bend, Oregon; Deschutes County Board of Commissioners; Oregon Division of State Lands; PacifiCorp; National Wildlife Federation; and American Rivers, Pacific Rivers Council and Oregon Trout (Conservation Parties). PacifiCorp agrees with the staff’s conclusions regarding navigability and jurisdiction.[9] The City of Bend and the Oregon Division of Lands express no opinion on the navigability report, but the City urges the Commission to resolve the matter expeditiously by upholding the staff’s determinations and allowing future management of the Bend Project to be governed by state and local law.[10] The remaining commenters take issue with two aspects of the staff’s conclusions: navigability of the Deschutes River in the vicinity of the Bend Project, and construction or major modification of the project after 1935. We examine these issues in detail below.

Discussion

The Commission recently explained its licensing jurisdiction as follows:[11]

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.[12] 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.[13]

The Bend Hydroelectric Project is not located on federal lands and does not make use of a government dam. Therefore, whether licensing is required depends on whether conditions (1) or (4) above are met.

For the reasons discussed below, we find that, although portions of the Deschutes River are navigable both above and below the project site, the river is not navigable in the vicinity of the project, and there is no evidence that it was ever used or suitable for use for the transportation of persons or property in interstate or foreign commerce. Therefore, licensing is not required based on navigability.

Regarding the second possible basis for mandatory licensing, we find 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.[14] 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).[15] However, as discussed below, the project was constructed in 1913, and the licensee has neither undertaken nor proposed any significant construction or major modification of the facility. Therefore, licensing is not required because the requirement of “post-1935 construction” is not met.

A. Navigability of the Deschutes River

Interior, Conservation Parties, National Wildlife Federation, and the Deschutes County Board of Commissioners all take issue with the staff’s conclusion on navigability. They maintain that the navigability report fails to consider relevant information and inadequately analyzes factors supporting a finding of navigability. They question the staff’s consideration of irrigation withdrawals in judging the suitability of certain river segments for navigation. They also argue that extensive use of the Deschutes River by commercial and private recreational boaters demonstrates the navigability of the river segment downstream of the Bend Project. National Wildlife Federation provides declarations of three individuals who use that portion of the river for recreational and commercial boating, and argues that this use is sufficient to demonstrate that the river is navigable.[16]

Section 3(8) of the FPA defines “navigable waters.”[17] In essence, navigable waters are those that are used or suitable for use for the transportation of persons or property in interstate or foreign commerce.

It is apparently undisputed that portions of the Deschutes River, both above and below the Bend Project, are navigable.[18] However, in order to find the Deschutes River navigable at the project, there must be substantial evidence that the river is at that point a part of an aqueous highway that was or is used or suitable for use to transport persons or property between states or to a port of access to international waters.[19] The Deschutes River empties into the Columbia River at a point where the Columbia is a boundary river between states and from which it is moreover navigable to its mouth at the sea.[20] Therefore, in order to demonstrate that the Deschutes River at the project site is a navigable water, we need only find that it was or is used or suitable for use to transport persons or property between the project site and the Columbia River.[21]

The Bend Project is located on the Deschutes at river mile 160.[22] The controversy concerns the 20-mile segment from Bend to Oden Falls (river miles 160 to 140) and the 20-mile segment from Lake Billy Chinook to the lower dam of the Pelton-Round Butte Complex (river miles 120 to 100).

Conservation Parties and National Wildlife Federation have provided evidence that both these segments of the river are used or suitable for use by recreational boaters.[23] However, all of the evidence of use or suitability for use for recreation concerns use by skilled kayakers or whitewater rafters.[24] This is not the sort of recreational boating that the Commission has recognized as demonstrating the suitability of a river for “the simpler types of commercial navigation.”[25] Rather, the Commission has expressly declined to base a finding of navigability under the FPA on recreational boating where a substantial reach of the river “can only be navigated by a kayak (or comparably specialized sporting craft designed for river running) maneuvered by an expert paddler.”[26] Where historical evidence of use of these reaches is lacking, and the only evidence of suitability for commercial navigation consists of this specialized type of recreational boating, we do not regard this showing as sufficient to support a determination of navigability under Section 3(8) of the FPA.[27]

B. Construction or Major Modification After 1935

Conservation Parties argue that the navigability report did not adequately review construction or major modification after 1935 as a possible basis for mandatory jurisdiction under Section 23(b)(1). They maintain that the staff should have reviewed the information provided in PacifiCorp’s relicense application concerning proposed modifications to the project. They assert that, because these proposed modifications would allow the project to operate differently from its pre-1935 design, they are therefore sufficient to constitute construction for purposes of mandatory licensing jurisdiction.

The staff’s report was directed to only one possible basis of mandatory jurisdiction: navigability. The notice of its availability addressed other possible jurisdictional bases to put the navigability report in context and to give notice to all parties and interested persons of the pending jurisdictional inquiry. Because the staff did not issue an order finding licensing not required, but simply requested comments on the navigability report and related issues, the staff was not required to address all possible jurisdictional bases in detail.

The notice stated that the staff had found no evidence of any significant construction or major modification of the project after 1935. Thus, the notice reflected the staff’s review of information in the Commission’s possession, including the modifications proposed in PacifiCorp’s relicense application.

PacifiCorp has proposed to rehabilitate the existing project by: (1) adding an 18-inch-thick concrete cut-off wall on the upstream face of the timber crib spillway; (2) replacing the spillway and stoplog dam crest with an inflatable rubber crest control structure; (3) repairing portions of the concrete structures, including the wing wall, turbine bays, and powerhouse; (4) rehabilitating the turbine units and the generators; and (5) upgrading associated plant equipment to new plant standards. These measures would improve PacifiCorp’s ability to maintain constant pool elevations and would allow more automatic control of headwater level. The inflated crest control structure would allow ice passage and reduce maintenance costs.[28]

Contrary to Conservation Parties’ assertion, these proposed changes are not sufficient to constitute construction or major modification of the project within the meaning of Section 23(b)(1) of the FPA. Ordinary maintenance, repair, and reconstruction activity do not bring a project within the Commission’s mandatory licensing jurisdiction.[29] In general, to qualify as “post-1935 construction,” the construction must increase the project’s head, generating capacity, or water storage capacity, or otherwise significantly modify the project’s pre-1935 design or operation.[30] No such increase or significant change is proposed in this case. We therefore find no grounds for mandatory licensing based on construction or significant modification of the Bend Project after 1935.

C. Voluntary Licensing Under Section 4(e)

Interior and Conservation Parties argue that, by accepting an original license and applying for a subsequent license under the FPA, PacifiCorp has, in effect, waived its right to operate its project without a license under the FPA. They seem to be arguing that, because the Commission is authorized to issue a license to a voluntary applicant under Section 4(e) and PacifiCorp filed its application voluntarily, PacifiCorp may not now avoid the Commission’s licensing jurisdiction.

Interior and Conservation Parties misunderstand the nature of voluntary licensing under Section 4(e) of the FPA. Once an applicant accepts a voluntary license under that section, the license is fully valid and enforceable. Substantively, a license issued under Section 4(e) contains the same types of terms and conditions as a license issued under Section 23(b)(1). If the holder of a voluntary license under Section 4(e) wishes to be relieved of its obligations thereunder during the license term, the licensee must file an application to surrender the license.

In this case, however, PacifiCorp’s original license has expired, and PacifiCorp has not yet accepted a subsequent license. In these circumstances, a voluntary applicant may choose either not to seek a new license (including withdrawing a pending license application) or to reject the Commission’s offer of a new 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.[31] In contrast, if a project is required to be licensed under Section 23(b)(1), an applicant must either accept the license that the Commission offers or cease operating without a license under the FPA. Therefore, we find no merit to the argument that, by accepting an original license and filing an application for a subsequent license, PacifiCorp has waived its right to operate its project without a license under the FPA.

Implications for Relicensing

For all the foregoing reasons, we conclude that the Bend Hydroelectric Project is not required to be licensed under Section 23(b)(1) of the FPA. Moreover, we have good reason to believe that PacifiCorp would not accept a subsequent license issued under Section 4(e) of the FPA. As explained in the staff’s final EA, the Bend Hydroelectric Project has negative economic benefits under any proposed operating scenario. 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. PacifiCorp has indicated that it is not likely to accept a subsequent license that includes mandatory fishways and certain other agency recommendations. For that reason, PacifiCorp has also declined to enter into an MOA on historic preservation, which often precedes issuance of a hydroelectric license.

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.[32] If licensing is not required, however, a hydroelectric licensee may, following expiration of its original license, continue to operate the project without a license, subject only to whatever other federal, state, or local laws may be applicable.

In these circumstances, we question whether it makes sense for the Commission and the parties to continue to devote resources to considering Pacificorp’s relicense application. Indeed, in light of our order finding licensing not required, as well as all of the particular facts and circumstances of this case, PacifiCorp may decide to withdraw its application and allow the future of the Bend Project to be determined outside of the Commission’s licensing process.

Therefore, we hereby direct Pacificorp to file with the Commission, within 30 days of issuance of this order, either: (1) a notice of withdrawal of its application, pursuant to 18 C.F.R. § 385.216;[33] or (2) a request that the Commission continue processing its application. After reviewing PacifiCorp’s filing and any other filings that may be received from other parties, the Commission will determine what further action may be appropriate.

The Commission orders:

(A) The Bend Hydroelectric Project No. 2643, located on the Deschutes River in the City of Bend, Deschutes County, Oregon, is not required to be licensed pursuant to Section 23(b)(1) of the Federal Power Act.

(B) Within 30 days of the date of issuance of this order, PacifiCorp must file with the Commission either: (1) a notice of withdrawal of its application for a subsequent license for the Bend Hydroelectric Project No. 2643, pursuant to 18 C.F.R. § 385.216 of the Commission’s regulations; or (2) a request that the Commission continue processing its application for a subsequent license for the Bend Project.

By the Commission.

( S E A L )

 

Lois D. Cashell,
Secretary.

 

  1. A “subsequent license” is “a license for a water power project issued under Part I of the Federal Power Act after a minor or minor part license that is not subject to sections 14 and 15 of the Federal Power Act expires.”  18 C.F.R. § 16.2(d).  A “minor water power project” is one that has a total installed generating capacity of 1.5 MW or less.  Id. at § 4.30(17).  The subsequent licensing of an project with an expired minor license is a relicensing proceeding.  See Oconto Falls, WI v. FERC, 41 F.3d 671, 672 (D.C. Cir. 1994).  For convenience, we use the terms “subsequent licensing” and “relicensing” interchangeably in this order.
  2. The following agencies and organizations became parties to the proceeding by filing timely motions to intervene that were not opposed:  Coalition for the Deschutes; Oregon Department of Fish and Wildlife; American Rivers, Pacific Rivers Council, and Oregon Trout; Bend Metro Park and Recreation District; City of Bend; and Deschutes County.  By notices issued on July 20, 1993, the Commission granted late motions to intervene filed by the Deschutes River Chapter of Trout Unlimited on July 10, 1992, and the Department of the Interior on December 23, 1992, respectively.  See 18 C.F.R. § 385.214(c) (1995).
  3. The staff originally requested comments on the draft EA by October 15, 1993.  However, in response to requests from several parties, the staff extended the comment period to January 15, 1994.
  4. 69 FERC ¶ 61,336.
  5. On July 13, 1995, the Commission provided further guidance on project economics and hydroelectric licensing in Mead Corporation, 72 FERC ¶ 61,027 at pp. 61,068-70.
  6. As explained in more detail below, the navigability of the Deschutes River in the vicinity of the project is critical to a determination of whether licensing is required under Section 23(b)(1) of the FPA.
  7. Letter from S. A. DeSousa, PacifiCorp, to John H. Clements, FERC (April 18, 1995).
  8. Conservation Parties take issue with the timing of the staff’s navigability report, arguing that the Commission should determine the nature of its jurisdiction at the outset of a proceeding.  The Commission ordinarily addresses jurisdiction in its licensing orders.  However, the Bend Project is one of 35 “Taum Sauk” projects (see n. 15, infra) licensed between 1965 and 1971 based on their location on a Commerce Clause water and generation of electricity entering the interstate transmission grid, and on the subsequently overruled finding that such projects were required to be licensed, whether or not they had undergone any project construction after 1935.  See Central Vermont Public Service Corp., 70 FERC ¶ 61,150 at pp. 61,446-47 (1995).  A 1972 court decision ruled that this class of projects was only required to be licensed if there was post-1935 construction.  Id.  However, as is described in the Discussion, infra, because these projects are on Commerce Clause waters, the Commission is authorized to issue them licenses, which, if accepted, are as valid and enforceable as a required license.  Because the economic benefits provided by existing hydropower projects are under pressure from electric industry restructuring and the often costly new environmental mitigation measures required at project relicensing, it has recently become important to establish whether a project is required to be relicensed in order to continue operating.  The answer to this question also controls whether, if the licensee wishes to decommission the project, the Commission has authority to oversee that process.  The staff is consequently in the process of examining the jurisdictional status of all Taum Sauk projects as the expiration of their license approaches.
  9. PacifiCorp also points out that it reached the same determination in 1967 when it filed its original license application.
  10. The City of Bend states that its primary interest is in ensuring that Mirror Pond, the Bend Project reservoir, is maintained.  The City, the Oregon Division of State Lands, and the Deschutes County Board of Commissioners all point out that determining navigability for purposes of jurisdiction under the FPA is different from determining navigability for purposes of establishing title to the bed and banks of a river, and they urge the Commission to acknowledge this.  We recognize that there are differences in the two standards.  See State of Oregon v. Riverfront Protection Ass’n, 672 F.2d 792, 794 n. 1 (1982).  We note, however, that in a 1983 report, the Oregon Division of State Lands reached conclusions consistent with our own regarding the non-navigability of the Deschutes River in the vicinity of the Bend Project.  See Report and Recommendation on the Navigable Waters of Oregon at 54 (January 1983) (recommending that the Deschutes River be declared navigable only in its meandered reaches between its mouth and river mile 12 and between river miles 54 and 102).  (The Bend Project is located at river mile 160.)
  11. 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).
  12. See Farmington River Power Co. v. Federal Power Commission, 455 F.2d 86 (2d Cir. 1972). Section 23(b)(1) provides, in pertinent part: It shall be unlawful for any person, State, or municipality, for the purpose of developing electric power, to construct, operate or maintain any dam, water conduit, reservoir, power house, or other works incidental thereto across, along, or in any of the navigable waters of the United States, or upon any part of the public lands or reservations of the United States . . . , or utilize the surplus water or water power from any Government dam, except under and in accordance with . . . a license granted pursuant to this Act. Any person . . . intending to construct a dam or other project works across, along, over, or in any stream or part thereof, other than those defined herein as navigable waters, and over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States, shall before such construction file declaration of such intention with the Commission, whereupon the Commission shall cause immediate investigation of such proposed construction to be made, and if upon investigation it shall find that the interests of interstate or foreign commerce would be affected by such construction such person . . . shall not construct, maintain, or operate such dam or other project works until it shall have applied for and shall have received a license under the provisions of this Act. If the Commission shall not so find, and if no public lands or reservations are affected, permission is hereby granted to construct such dam or other project works in such stream upon compliance with State laws. 16 U.S.C. § 817(b).
  13. Section 4(e) provides, in pertinent part: The Commission is hereby authorized and empowered– . . . (e) To issue licenses . . . for the purpose to constructing, operating, and maintaining dams, water conduits, reservoirs, power houses, transmission lines, or other project works necessary or convenient for . . . the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States, or upon any part of the public lands and reservations of the United States . . ., or for the purpose of utilizing the surplus water or water power from any Government dam . . . . 16 U.S.C. § 797(e).
  14. 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 Swanton Village (supra n. 11), 70 FERC at p. 61,994.
  15. See Federal Power Commission v. Union Electric Co. (“Taum Sauk”), 381 U.S. 90, 97 (1965).  The Bend Project is also a member of the class of small hydroelectric projects that, because of their interconnection with the interstate electrical grid, collectively have a real and substantial effect on interstate commerce.  See Clifton Power Company,  39 FERC ¶ 61,117 at pp. 61,452-55 (1987), aff’d on other grounds sub nom. Cooley v. FERC, 843 F.2d 1464 (D.C. Cir. 1988); Aquenergy Systems Inc., 39 FERC ¶ 61,178 at pp. 61,178-79 (1987), aff’d, Aquenergy Systems v. FERC, 857 F.2d 227 (4th Cir. 1989); Fairfax County Water Authority, 43 FERC ¶ 61,062 (1988); Habersham Mills, 57 FERC ¶ 61,351 (1991), aff’d, Habersham Mills v. FERC, 975 F.2d 1381 (11th Cir. 1992).
  16. The Oregon Division of State Lands makes no substantive comments on the navigability report, but provides a bibliography of additional sources of information for the Commission’s consideration.  The bibliography provides no additional information regarding the content or possible relevance of the listed references, and includes some sources upon which we may not properly rely, such as draft environmental impact statements or drafts of agency reports.  Other sources do not appear likely to yield relevant information (for example, captions to photographs in the Deschutes County Museum and Deschutes County mechanics liens).  The staff consulted many of the remaining sources in preparing its navigability report, but did not cite them, because they duplicated other sources or pertained to recreational boating of the type not recognized by the Commission as providing sufficient basis for a determination of navigability.
  17. Section 3(8) of the FPA provides: “[N]avigable waters” means those parts of streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States, and which either in their natural or improved condition, notwithstanding interruptions between the navigable parts of such streams or waters by falls, shallows, or rapids compelling land carriage, are used or suitable for use for the transportation of persons or property in interstate or foreign commerce, including therein all such interrupting falls, shallows, or rapids, together with such other parts of streams as shall have been authorized by Congress for improvement by the United States or shall have been recommended to Congress for such improvement after investigation under its authority.
  18. As described in the navigability report, the staff found no evidence of historic use of the Deschutes River at and below the Bend Project site to transport persons or property in interstate or foreign commerce.  Rather, trails beside the river, including part of the Oregon Trail, were used.  See Report at 2-4.  The staff therefore investigated the river’s suitability for boating to assist it in determining navigability.  As depicted in the staff’s report, portions of the river are used or suitable for use for recreational boating, which may be relevant to a determination of navigability under the FPA:  from Wickiup Dam to an area north of the Bend Project (river miles 226.8 to 172); from Oden Falls to Lake Billy Chinook (river miles 140 to 120); and from below Pelton Dam to the Columbia River (river miles 100 and below).  The Bend Project is located at river mile 160.  Thus, there are 52 river miles, comprising a 32-mile segment that includes the Bend Project and a 20-mile segment further downstream, that the staff identified as unsuitable for transportation of persons or property in interstate commerce.  See Report at 5 and accompanying map.
  19. See, e.g., Sierra Pacific Power Co. v. FERC, 681 F.2d 1134 (9th Cir. 1982), cert. denied, 460 U.S. 1082 (1983).
  20. See, e.g., Public Utility District No. 2 of Grant County, Washington, 14 FPC 1067 (1955).
  21. See, e.g., Central Vermont (supra n. 8), 70 FERC at p. 61,447.
  22. River miles are counted from the mouth of a river to its source; i.e., the mouth is at river mile zero and the miles increase with distance upstream.
  23. On November 27, 1995, Conservation Parties filed additional evidence to aid the Commission in its navigability determination.  This consists of the declarations of two individuals concerning the segment of the Deschutes River from the Bend Project to Cline Falls (river mile 145), and a 1986 river study by Deschutes County and the City of Bend.  While this evidence supplements what Conservation Parties and National Wildlife Federation have already filed with the Commission, it does not change our conclusions regarding navigability of the river segments in question.
  24. American Rivers appends excerpts from Soggy Sneakers, A Guide to Oregon Rivers, published by The Mountaineers. These excerpts reveal that, from below the Bend Project to Lake Billy Chinook, the Deschutes River consists primarily of Class 4 or greater rapids. Id. at 236-38. According to the International Scale of Difficulty, which defines six classes of whitewater, Class 4 or advanced whitewater is characterized as follows: Intense, powerful but predictable rapids requiring precise boat handling in turbulent water. Depending on the character of the river, it may feature large, unavoidable waves and holes or constricted passages demanding fast maneuvers under pressure. A fast, reliable eddy turn may be needed to initiate maneuvers, scout rapids, or rest. Rapids may require “must” moves above dangerous hazards. Scouting is necessary the first time down. Risk of injury to swimmers is moderate to high, and water conditions may make self-rescue difficult. Group assistance for rescue is often essential but requires practiced skills. A strong eskimo roll is highly recommended. See Final EIS, Ayers Island Hydroelectric Project No. 2456, at pp. A-2 to A-3 (October 1995); Northwest Power Co., 59 FERC ¶ 61,132 at p. 61,495 n. 27 (1992). Contrary to National Wildlife Federation’s suggestion, our determination of navigability in Iliamna did not involve the use of kayaks, but rather “16- to 20-foot wooden or aluminum boats with 25- to 50-horsepower outboard motors.” Iliamna-Newhalen-Nondalton Electric Cooperative, Inc., 58 FERC ¶ 61,065 at p. 61,151 (1992).
  25. United States v. Appalachian Electric Power Co., 311 U.S. 377, 416 (1940); see Pennsylvania Electric Co., 56 FERC ¶ 61,435 at pp. 62,549-50 (1991) (non-navigable; substantial reach of river could not be safely navigated by an average recreational canoeist at any time of year, but could only be navigated by a kayak or comparably specialized sporting craft designed for river running, maneuvered by an expert paddler), reh’g denied on other grounds, 57 FERC ¶ 61,211 (1991); David Zinkie, 53 FERC ¶ 61,029 (1990) (navigable; documented historical account of canoe voyage); Swans Falls Corp., 53 FERC ¶ 61,309 (1990) (navigable; use by rental canoes as well as for logging).  See also New York v. FERC, 954 F.2d 56 (2d Cir. 1992) (navigable; historic use for boat traffic and floating logs, also use by recreational canoes and drift boats); Consolidated Hydro, Inc., 53 FERC ¶ 61,256 at p. 62,035 (1990) (navigable; includes use by recreational canoes on flat and tidal water), reh’g denied, 54 FERC ¶ 61,067 (1991), aff’d, Consolidated Hydro Inc. v. FERC, 968 F.2d 1258 (D.C. Cir. 1992); Muckleshoot Indian Tribe v. FERC, 993 F.2d 1428, 1433 (9th Cir. 1993) (non-navigable; 21-mile segment unsuitable for navigation, other segments used by canoeists or for logging).
  26. Pennsylvania Electric Co., n. 25 supra, at p. 62,549.  In that regard, we would distinguish this highly specialized recreational use of a river, which requires a great deal of skill, from simpler forms of commercial navigation, which have as their purpose the transportation of persons or property in interstate commerce.
  27. Nor do we regard the staff’s discussion of dams and irrigation diversions in its navigability report as significant.  The staff mentioned these features because they affect current use of the river.  However, the staff did not and could not rely on these features as a basis for finding the river stretches nonnavigable.  Rather, it is because these stretches are characterized by a series of dangerous, high falls and rapids that they are not suitable for commercial navigation.  See Navigability Report at 5.  We agree that existing dams and irrigation diversions could not be used as a basis for finding an otherwise navigable river non-navigable.
  28. See Final Safety and Design Assessment, Bend Hydroelectric Project No. 2643, Oregon, at pp. 1-2 (Oct. 30, 1995).  Contrary to Conservation Parties’ suggestion, the project is safe and requires only normal maintenance and repair for continued operation.  Id. at pp. 2, 10-11.
  29. See Puget Sound Power & Light Co. v. Federal Power Commission, 557 F.2d 1311 (9th Cir. 1977).
  30. See, e.g., Western Massachusetts Electric Co., 7 FERC ¶ 61,126 at p. 61,192 (1979) (retiring water wheels and generators, rewinding generators, installing new coils, semi-automating developments, reinforcing dams, and replacing dikes and wave walls all found not to constitute “post-1935 construction”).
  31. 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).
  32. See 381 U.S. at 98 n. 10.
  33. Under that rule, any participant may seek to withdraw a pleading by filing a notice of withdrawal.  If no participant files a timely motion in opposition to the notice, the withdrawal is effective 15 days after the notice is filed.  Section 385.216(b).  Otherwise, the withdrawal is not effective unless the decisional authority accepts the withdrawal.  Section 385.216(c).  License applications are a type of “pleading.”  See 18 C.F.R. § 385.202.

American Rivers presents more evidence to FERC

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

Re: Project No. 2643-001 (Bend Hydroelectric Project)

Dear Ms. Cashell:

Enclosed for filing with the Commission in the above project are the original and 8 copies of SUBMISSION BY AMERICAN RIVERS, PACIFIC RIVERS COUNCIL AND OREGON TROUT OF ADDITIONAL EVIDENCE TO AID THE COMMISSION IN DETERMINING THE NAVIGABILITY OF THE DESCHUTES RIVER, OREGON.

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

Very truly yours,

Katherine P. Ransel

Document: American Rivers additional evidence in determining navigability (PDF)

Statement of Generation in KWhs for Hydropower 1995

PacifCorp

Ms. Lois D. Cashell, Secretary
Federal Energy Regulatory Commission
Mail Code: DPCA, HL-21, I
825 North Capitol Street, N.E.
Washington, D.C. 20426

Subject: RIMS Code TRANKW
Statement of Generation in KWhs for Hydropower Annual Charges for all PacifiCorp Licensed Projects

Dear Ms. Cashell:

I, Stanley A. deSousa, being duly sworn, depose and say: That I am the Director of Hydro Resources for PacifiCorp, and make this affidavit for and on behalf of PacifiCorp; that the total gross electric generation at the licensed hydroelectric projects, for the period or October 1, 1994 through September 30, 1995 PacifiCorp, is 4,131,767,000 kilowatt hours as detailed on the attached table which lists the generation at each project.

Very truly yours,

S. A. deSousa
Director, Hydro Resources


PACIFICORP
Licensed Project Gross Generation
October 1, 1994- September 30, 1995
KWH

 kwh1995

Document: Hydro-KWH-1995 (PDF)

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