Another Mirror Pond ballot measure is in the works

Measure would require city of Bend to get permits before acquiring dam

By Scott Hammers | The Bulletin

A measure that would limit the city of Bend’s ability to acquire the Mirror Pond dam could be headed for the November ballot.

Spencer Dahl, who’s been active in the various committees and public meetings surrounding the future of Mirror Pond, submitted the paperwork to begin collecting signatures for the measure a little over a week ago. If 15 percent of registered voters within the city sign his petitions by Aug. 6, it will go before voters in the November election.

Dahl’s measure would prohibit the city from taking ownership or control of the dam unless it has already obtained one of two permits: the federal permit needed to operate the dam as an updated hydroelectric generation facility, or the state water right permit to operate it as a nongenerating dam.

The idea of the city or the Bend Park & Recreation District acquiring the dam that creates Mirror Pond has gained traction since December, when dam owner Pacifi­Corp announced it was no longer interested in operating the dam long term. The utility has since repaired a hole in the dam that prompted the announcement, but is continuing to discuss the possible transfer of the dam with officials from the city and the park district.

Dahl said his ballot measure is an attempt to focus the discussion on what he believes is the central issue: Should the Mirror Pond dam continue to be a hydroelectric facility or not? He said his research suggests it’s unlikely the state would grant the water rights needed for the dam to remain if it’s not generating electricity, and if that’s the case, many of the ideas now up for discussion may be pointless.

“If we’re spending money on coming up with all these plans and ideas that may or may not happen without this water right, why don’t we focus on getting this water right first?” Dahl said. “It’s absolutely critical — without the water right, all these plans are a waste of time and money.”

Dahl said he’s personally open to a variety of options for Mirror Pond and the dam, though he’s fairly certain the current dam will eventually come out. He said there’s no need to rush a decision: The recently repaired leak washed away much of the sediment that had accumulated on the floor of the pond, and with the repairs, the dam could have another 10 to 20 years as a viable power generation facility.

“I think there’s a great sense of false urgency in the whole process,” he said. “From the beginning: ‘Mirror Pond’s going to disappear if we don’t do this right away.’ They’ve been saying that for the last 10 years.”

Dahl’s measure is distinct from two Mirror Pond ballot measures being advanced by Foster Fell. Fell’s proposed ballot measures would bar the city and the park district from spending public funds on any improvements at the Mirror Pond or the dam without providing for fish passages and habitat restoration.

Future hazy for dam below Mirror Pond

Newport Avenue Dam, located on the Deschutes River, is under scrutiny as officials consider what should be done about the silt buildup in Mirror Pond.
Newport Avenue Dam, located on the Deschutes River, is under scrutiny as officials consider what should be done about the silt buildup in Mirror Pond.

The Newport Avenue Dam could be one significant repair bill away from being shut down for good, according to a spokesman for the utility that operates the dam.

Now 100 years old, the dam brought Central Oregon its first electricity, creating Mirror Pond along the way. The dam’s future has been placed in the spotlight through a Bend Park & Recreation District-led process to determine what should be done about the silt that has been slowly filling Mirror Pond since it was last dredged in 1984.

PacifiCorp spokesman Bob Gravely said the dam can be compared to an older car a family might keep around as backup transportation.

“It is the second car — as long as you’re not rebuilding the engine, it’s worth your while to keep driving, but when the mechanic gives you a $3,000 bill for your car, it’s time to reconsider,” he said. “That’s how we view the situation right now.”

Gravely said he couldn’t say how much money PacifiCorp would be willing to put in to keeping the dam running if repairs became necessary.

For now, he said the company is following the local discussion of options for Mirror Pond while trying not to exert undue influence on the process.

“In general, I would say that right now it remains economical to operate for customers,” Gravley said. “But, it is 100 years old, and we’re continuing to make sure it’s safe and all of that. … It would be hard to see any kind of major capital investment being made that would allow it to continue being economical.”

Electricity output

With a generation capacity of 1.1 megawatts, the Newport Avenue Dam is the smallest of the six hydroelectric power plants operated by PacifiCorp, providing just more than one-tenth of 1 percent of the total power potential of the company’s hydro system.

Because hydroelectric plants do not typically generate power all day, every day, capacity figures overstate their actual production. Power output is measured in megawatt hours (MWh), a calculation of the actual electricity generated reached by multiplying the capacity with the number of hours the turbines are turning. With consistent water supplies, a 1.1 MW facility like the Newport Avenue Dam running 24 hours a day, 365 days a year would produce 9,636 MWh of electricity.

Generation figures shared by the company indicate the Newport Avenue Dam produced 3,344 MWh in 2012 and 2,115 MWh in 2011, down from the long-term historical average of 4,106 MWh. Using the U.S. Department of Energy standard that places the average household’s annual electricity consumption at 11,280 kilowatts, the dam’s total output supplied power for 296 homes last year, and 188 the year before.

According to the Oregon Public Utility Commission, the average PacifiCorp residential customer pays 10.8 cents per kilowatt hour. At that rate, the Newport Avenue Dam would have generated an income of $228,420 for PacifiCorp in 2012, not counting any costs associated with transmission, administration or maintenance.

Steve Johnson, the manager of the Central Oregon Irrigation District, said those kinds of dollar figures suggest it wouldn’t take much for PacifiCorp to give up on the Newport Avenue Dam as a power source.

The irrigation district operates two hydroelectric generators of its own, one on a canal intake near Mt. Bachelor Village and one on its canal between Bend and Redmond that together generate roughly 10 times the power of the Newport Avenue Dam.

“It’s only real value now is, it creates Mirror Pond,” Johnson said. “I think PacifiCorp is just gonna follow along with what the community does, but if the community wants that dam removed, the community is gonna pay for it. PacifiCorp ain’t gonna pay for that.”

Possible changes

If PacifiCorp were to give up on generating power at the Newport Avenue Dam, it’s likely the dam would have to come down as well. The state permit under which the dam is operated gives PacifiCorp the right to impound the river for power generation — and, interestingly, debris removal and ice production — but not recreational purposes like creating a pond.

Jim Figurski, a consultant working with the park district to draw up plans for how to address the silt issue at Mirror Pond, said the Oregon Water Resources Department has assured him it wouldn’t rush dam removal were PacifiCorp to give up on power generation, but could be forced to act if a private citizen or group were to raise the issue.

Mary Grainey from the Oregon Water Resources Department’s hydroelectric division said PacifiCorp would have the option of selling or transferring its water rights — again, only for hydroelectric generation, debris removal or ice production — or the rights would revert back to the state.

Grainey said PacifiCorp would have up to five years to transfer its water rights to another user or the state. Alternatively, the company or another party that received the water rights through a transfer could appeal to the Water Resources Commission to create a recreational or aesthetic water right, Grainey said, adding such rights are typically only granted for smaller waterways on private property.

Figurski said he doesn’t think a push to create a recreational water right is likely to succeed.

“I think the recreational components in most places were secondary to flood control, irrigation, power generation,” Figurski said. “To create a new water right, you would be starting from scratch and would be subject to all the new regulations.”

If hydroelectric generation were to come to an end and the dam were somehow allowed to remain in place with a new water right, it’s likely state regulators would require the dam’s owner to address fish passage. Johnson estimated screens to keep fish from being sucked through the dam and a fish ladder for upstream travel could run $1 million to $2 million at the Newport Avenue Dam.

Were PacifiCorp to continue generating power but wish to make significant modifications to the dam, the Federal Energy Regulatory Commission could require it be re-licensed — PacifiCorp was allowed to opt out of FERC licensing in 1996 — triggering the need to install fish passage and meet other modern regulatory requirements.

Gravely said that although he can’t be certain what would happen were FERC to require the dam be re-licensed, the costs associated with a pending license renewal have led to the removal of many older dams across the Northwest. Still, he said it’s hard to guess when PacifiCorp might decide operating the dam is more trouble than its worth.

“It’s 100 years old. We believe it’s much closer to the end of its viability than the beginning,” he said.

‘There will be a reaction’

Figurski said he can understand why PacifiCorp is trying to avoid dominating the discussion over Mirror Pond, even if what becomes of the dam could alter Mirror Pond as much or more than any of the dredging or channel-building now under consideration.

“I think they’re being pretty conservative,” he said. “Because they could obviously be driving this process, and say ‘We’re going to take the dam out; you guys do whatever.’”

On April 30, members of the Mirror Pond Management Board will see preliminary illustrations of various options for addressing the silt buildup in the pond. Figurski said the board will see a no-dam scenario, a scenario that preserves the traditional look of Mirror Pond, and a number of middle options that ideally could be implemented with or without the Newport Avenue Dam.

Figurski said one of the clearest messages he took from a questionnaire on Mirror Pond earlier this year was the public’s desire to find an approach that will enhance the area upstream of the dam, regardless of how long the dam remains — and ideally, won’t be completely undone if the dam is removed.

“I don’t think the idea is you wouldn’t have to do anything if the dam comes out, but how do you not lose everything you’ve done,” he said. “If and when the dam goes away, there will be a reaction. Let’s minimize what we have to do at that point.”

Related article: Future clouded for Mirror Pond dam

Source: The Bulletin ©2013

Navigable Waters

Section 3(8) of the FPA defines “navigable waters.” 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.

Section 3(8) “Navigable 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;

Document: Federal_Power_Act_Redline

Dam Near Done

The Newport Avenue dam is at the end of its life cycle. Everyone knows it—even PacifiCorp, the utility company that owns the 102-year-old dam, which creates the pond at Drake Park near downtown Bend.

What many don’t know, however, is that the dam cannot remain if it ceases to function as a hydroelectric facility. Those are the rules: According to water-right certificate No. 29581, Pacific Power & Light Co. (now PacifiCorp, which owns Pacific Power) has the right only to use the water for power generation and ice and debris removal. There’s no built-in right for storing water.

So, the idea that PacifiCorp can simply retire the crumbling dam from service as a power-generating tool, but leave the structure in place to retain a pond, is a thought that should no longer be considered.

“By no means could it stay there just to keep Mirror Pond,” said Deschutes Basin Watermaster Jeremy Giffin, who also put to rest talk of transferring those water rights for recreational purposes. All of the water rights on the Upper Deschutes River, said Giffin, have already been allocated.

PacifiCorp officials hope, however, the case isn’t as cut and dried as it seems. Company spokesman Bob Gravely said, although, “it’s not really an issue we’ve looked at closely,” he’s optimistic a solution could be found that would allow the dam to remain in place.

But the water-right news puts PacifiCorp in a tight spot. Company representatives have admitted that, from a hydroelectric standpoint, the dam provides negligible electricity. According to company stats, the dam only generates enough power for 300 to 400 homes. Angela Price, PafiCorp rep and Mirror Pond Steering Committee member, recently called the structure “a small asset.”

Moreover, altering the Newport Avenue dam is also an unlikely course. Adding fish ladders and other such necessary updates or repairs would be expensive and would trigger action from the Federal Energy Regulatory Commission. FERC licensing would be a costly route that could take years to navigate—an unappealing scenario for PacifiCorp.

Jim Figurski, the project manager who’s been hired by the city and Bend Park & Recreation District to find a fix for a pond that is clogging with silt, has already thought about all this.

“My understanding is that the water right is solely associated with the generation of power,” said Figurski, echoing Watermaster Jeremy Giffin’s words. Figurski added that, while he can’t speak for the city, he thought a handoff or sale of the dam from PacifiCorp to the city highly unlikely.

To account for this, Figurski, who also sits on the Mirror Pond Steering Committee, the decision-making body overseeing the project, said at least three of the four possible solutions being drafted by his consultant team will include a Deschutes River with no dam in place at Newport Avenue. Figurski expects to have four designs, ones created by Portland’s Greenworks, a landscape architecture and environmental design firm, ready for public viewing and input by early June.

Fellow Steering Committee member Ryan Houston, Upper Deschutes Water Council executive director, is enthusiastic about Figurski’s approach but wants to make one thing clear: “Whether you want a pond or not is irrelevant—that dam is old,” Houston said. “The writing is on the wall.”

Going forward, Houston said he hopes the community can understand that the issues swirling about the silt-filled pond aren’t either/or.

“It’s either going to benefit recreationalists or homeowners; water quality versus not—when I hear someone playing these things off of each other as if they’re-black and-white solutions, I say ‘no,’ ” Houston said. “They’re false choices.”

Some would like to see the pond stay, no matter the cost, as they see it as an iconic Bend fixture. Other residents, who value the river’s health, would rather see the Deschutes return to a more natural state. River enthusiasts hope the solution allows for more recreating on the river. Others still ask that the area around Drake Park remain aesthetically pleasing.

The solution, Houston said, should be clever enough so that it pleases environmentalists, neighbors and recreationalists alike.

Figurski agrees, and said he’s trying to help his design team think outside of the box.

“The potential to retain pond-like characteristics,” Figurski said, is there, even without a dam.

But, at this point, one eventuality is clear—the dam’s days are numbered. SW

Source: The Source Weekly ©2013

Bend Hydro Dam – Updated Safety Plan 2012

PacifiCorp Energy
825 NE Multnomah, Suite 1500
Portland, Oregon 97232

Electronically filed February 29, 2012

Douglas L. Johnson, P.E., Regional Engineer
Federal Energy Regulatory Commission
805 SW Broadway, Suite 550
Portland, OR 97205

Subject: Bend Hydroelectric Project, FERC No. P-2643 / Updated Public Safety Plan

Dear Mr. Johnson:

Enclosed is the updated Public Safety Plan for the Bend Hydroelectric Project on the Deschutes River, Oregon. Please consider this updated plan as a replacement of any previously filed Public  Safety Plan for this project.

This letter and its attachment have been filed electronically. The security classification of each component in this filing is shown in the Enclosure list below. Two complete copies have been sent to your offices according to current FERC eFiling requirements. If you have any questions concerning this information, please contact Derek White at 503-813-6195 or


Mark Sturtevant
Managing Director, Hydro Resources


Document: Bend-Hydro-Dam-Safety-plan-2012 (PDF)


FPL Maine Hydro LLC v. FERC

Whether a Particular Stream in Maine is Navigable and Subject to FERC Jurisdiction

FPL Maine Hydro LLC v. FERC, U.S. Ct. of App. for the District of Columbia 287 F.3d. 1151 (2002).

The United States Court of Appeals for the District of Columbia has held that a portion of the Messalonskee Stream in Maine (“the Stream”) is a navigable water of the United States, with the result that the Federal Energy Regulatory Commission (“FERC”) has jurisdiction over the four hydroelectric generating stations at issue in this case. The Court reached this decision despite the fact that the Stream has not been used for commerce or even recreational boating or canoeing. Indeed, unlike most waterways in Maine, the Stream was never used to float logs downstream. The Stream is shallow and obstructed by islands, boulders and “rips.” When the most downstream station is not releasing water to generate hydroelectric power, the Stream is virtually impassable by canoe or boat because its depth is only six to eight inches. Even when a station is generating, a canoe has difficulty passing the islands because the Stream is quite shallow and obstructed by rocks. On the basis of four canoeing trips performed for the FERC hearing with mixed results, FERC concluded that the Stream is a navigable waterway of the United States. This appeal followed. FPL contended that “[t]he effect of the Order’s standard is to turn any tributary of a navigable stream on which a canoe can be floated over limited circumstances into a jurisdictional stream for purposes of the FPA. . . . The Order’s legal standard thus expands the Commission’s jurisdiction far beyond the limits of Congress’ intent and beyond the precedent established in earlier cases.” NELF filed an amicus brief on behalf of itself and Clifton Power Corporation, a South Carolina power producer facing similar issues. The amicus brief argued that FERC’s order expands its jurisdiction over waterways that have never been used for recreation or commerce and waterways that are not suitable for use in commerce. FERC’s expansive notion of navigability will, therefore, increase the costs of operating all hydroelectric generating facilities that will now be subject to FERC’s jurisdiction and its extensive and expensive licensing proceedings. While acknowledging “that the evidence of navigability is not overwhelming,” the Court found sufficient evidence to accord deference to the FERC decision and uphold it.

FPL Energy Maine Hydro LLC v. FERC

287 F.3d 1151 (2002)

American Rivers, et al., Intervenors.

No. 99-1397.

United States Court of Appeals, District of Columbia Circuit.

Argued March 14, 2002.
Decided May 3, 2002.

1152*1152 1153*1153 Catherine R. Connors argued the cause for petitioner. With her on the briefs was Matthew D. Manahan.

1154*1154 Cynthia L. Amara was on the brief for amici curiae Clifton Power Corporation and New England Legal Foundation in support of petitioner.

Laura J. Vallance, Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. With her on the brief were Cynthia A. Marlette, General Counsel, and Dennis Lane, Solicitor.

Daniel H. Squire and IJay Palansky were on the brief for intervenors American Rivers, et al.

Before: SENTELLE, ROGERS and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

Petitioner FPL Energy Maine Hydro LLC (FPL), a hydroelectric facility, petitions this Court for review of two orders by the Federal Energy Regulatory Commission (FERC), the first determining that FPL is subject to licensing because the Messalonskee Stream on which FPL is located is “navigable” under 16 U.S.C. § 796(8), the second denying FPL’s request for rehearing. Because we find that FERC’s interpretation of the statute governing navigability is a reasonable one and that its navigability finding was supported by substantial evidence, we deny the petitions.

I. Background

The Messalonskee Stream (Stream) is a tributary of the Kennebec River (Kennebec) located in central Maine. It runs approximately ten miles from the Messalonskee Lake to the Kennebec, with four dams located along its stretch. The southernmost dam is the Union Gas Project, located approximately one mile up the Stream from the confluence of the Stream and the Kennebec. In between the dam and the Kennebec, beginning from the dam and progressing downstream, are two sets of rapids or “rips,” a bridge, a third set of rips, and two islands that together span approximately 200 feet downstream with a shallow shoal on the east side of the islands and a narrow and rocky channel on the west side. Below the islands the Stream widens and deepens as it encounters the backwater of the Kennebec. The Kennebec, itself a navigable water, empties into the Atlantic Ocean.

Pursuant to section 23(b)(1) of the Federal Power Act (FPA), 16 U.S.C. § 817(1), a non-federal hydroelectric project must be licensed if it is located on a navigable water of the United States, as defined by 16 U.S.C. § 796(8), or if other criteria not relevant to this case are met. Because the four dams constitute one development unit, if one project requires a license, then they all must be licensed. See Kennebec Water District, 80 FERC ¶ 61,208, 61,828, 1997 WL 438885 (1997). Thus if the Stream between the Union Gas Project and the Kennebec is deemed navigable pursuant to 16 U.S.C. § 796(8), all four projects require a license.

Section 3(8) of the FPA defines navigable waters as

those parts of streams … 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….

16 U.S.C. § 796(8). This means that, to be navigable for purposes of the FPA, a waterway must form a highway for commerce with other states or with foreign countries, by itself or by connecting with other waters. See The Montello, 87 U.S. (20 Wall.) 1155*1155 430, 439, 22 L.Ed. 391 (1874). Courts have determined a waterway to be navigable if “(1) it presently is being used or is suitable for use, or (2) it has been used or was suitable for use in the past, or (3) it could be made suitable for use in the future by reasonable improvements.” Rochester Gas & Electric Corp. v. FPC, 344 F.2d 594, 596 (2d Cir.1965) (emphasis in original), see also Marine Stevedoring Corp. v. Oosting, 398 F.2d 900, 908 n. 15 (4th Cir.1968), rev’d on other grounds, Nacirema Operating Co. v. Johnson, 396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371 (1969); Sierra Pacific Power Co. v. FERC, 681 F.2d 1134, 1137-38 (9th Cir.1982). Navigability can be established based on any of these three requirements; each alone is sufficient. Rochester Gas, 344 F.2d at 596.

II. Proceedings Below

The Union Gas Project is currently licensed by FPL (as successor in interest to Central Maine Power Company — the original licensee of the project). The original license for the project was issued in 1968 and expired in 1993. Since that time, the project has been operating on annual licenses. As part of a jurisdictional examination of several projects for which licensing might not have been required,[1] the Office of Hydropower Licensing conducted a navigation report on the Stream in 1996. This report indicated that the Stream was not navigable because there was “no evidence of usage of the stream as a water highway, a continuous link for interstate commerce, either commercial or recreational, from above the project sites, past the projects, to the Kennebec River.” Following a review of comments to the report, the Acting Director of the Office of Hydropower Licensing issued an order finding that the Union Gas Project was located on a navigable waterway and therefore required a license. See Kennebec Water District, 79 FERC ¶ 62,041, 1997 WL 362917 (Apr. 21, 1997). On rehearing, FERC concluded the evidence submitted was inadequate to support a finding of navigability. See Kennebec Water District, 80 FERC ¶ 61,208, 1997 WL 438885 (Aug. 6, 1997). Following petitions for rehearing on that order, FERC set the issue of navigability for a hearing before an Administrative Law Judge (ALJ) to determine, among other things, the physical characteristics of the Stream, the difficulty associated with navigating the Stream, and the nature and frequency of actual use of the river for recreational boating. See Kennebec Water District, 81 FERC ¶ 61,073, 61,306, 1997 WL 698330 (Oct. 21, 1997). The ALJ, who did not address the physical characteristics of the Stream as they relate to navigability, found that the Stream was not navigable despite three “successful” and two “unsuccessful” canoe trips made for the purpose of litigation. See Kennebec Water District, 82 FERC ¶ 63,004, 1998 WL 9486 (Jan. 14, 1998). The ALJ also held that there was no evidence of “regular and substantial recreational use” to serve as a proxy for the simpler types of commercial navigation as allowed under United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243 (1940). FERC trial staff and several intervenors in the proceeding below filed exceptions to the ALJ’s initial decision, which Central Maine Power opposed. Upon review, FERC concluded that the ALJ applied an incorrect legal standard by requiring evidence of “regular and substantial recreational use” for a finding of navigability. It therefore reversed the non-navigability finding and 1156*1156 required FPL to obtain a license. See Kennebec Water District, 84 FERC ¶ 61,027, 1998 WL 514602 (July 16, 1998). FERC based its navigability finding on the three “successful” canoe trips taken for purpose of litigation, as well as the physical characteristics of the Stream. Id. at 61,126. FERC denied FPL’s rehearing request and these petitions for review followed.

III. Analysis

This case requires us to answer two questions: first, whether FERC’s interpretation of “navigability” under the FPA was reasonable; second, if so, whether FERC’s navigability finding was supported by substantial evidence. We answer both questions affirmatively.

A. “Navigability” Interpretation

FPL argues that FERC departed from the statutory “suitable for use … in … commerce” test set forth at 16 U.S.C. § 796(8) (see also Rochester Gas, 344 F.2d at 596) and instead applied a mere “possibility of passage” test to determine whether the Stream is navigable. FPL contends that FERC conducted its navigability determination by looking only to three non-commercial, non-recreational test canoe trips that indicated it was possible to navigate downstream in unusual conditions, rather than looking to historical and present commercial or recreational use by average canoeists. FPL further contends that, in determining navigability, FERC deviated from its past precedent that requires more than just a showing of specialized, recreational boating where historical evidence of commercial use was lacking. FPL also faults FERC for relying on the flow created when the hydroelectric facility is generating to create navigability, as well as for failing to identify the commercial use to which the Stream could realistically be put.

We reject each of FPL’s arguments. Where an administrative agency is tasked with interpreting an ambiguous statute that it administers, a court will defer to that agency’s interpretation so long as it is reasonable. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). As the statute does not define when a waterway is “suitable for use … in … commerce,” we assume that Congress intended FERC to address the ambiguity in the statute and develop an appropriate test. See United States v. Mead Corp., 533 U.S. 218, 229, 121 S.Ct. 2164, 2172, 150 L.Ed.2d 292 (2001). We find that FERC’s interpretation of navigability under the FPA, which was based on test canoe trips and the Stream’s physical characteristics in the absence of any commercial or recreational use, was reasonable and entitled to deference.

At the outset, we may quickly reject FPL’s argument that it was improper for FERC to rely on the flow created when the Union Gas Project is generating to create navigability. FPL confuses a finding of whether a waterway has always been navigable because an improvement could be made if reasonable in cost, with a finding of whether a waterway, together with its improvements, is presently “suitable for use.” See Rochester Gas, 344 F.2d at 596. The question before this Court is whether the Stream, with the presence of the Union Gas Project and the flow created when there is generation, is presently navigable, see Washington Water Power Co. v. FERC, 775 F.2d 305, 332 (D.C.Cir.1985), not whether the Stream was navigable prior to the Project’s construction. See id. at 331-32.

1157*1157 Turning next to FPL’s primary argument, FPL contends that FERC’s “possibility of passage” test: 1) ignored the fact that the Stream has never been used, either historically or presently, for commercial or private purposes, and 2) deviated from past decisions wherein FERC denied a finding of navigability when the only evidence of actual use was specialized, recreational boating.

All parties agree that the Stream has never been used for commercial traffic. But just because a body of water has not been used for commercial use does not mean that it is not susceptible to commercial use. See United States v. Utah, 283 U.S. 64, 82, 51 S.Ct. 438, 443, 75 L.Ed. 844 (1931). In Appalachian Power, 311 U.S. at 416, 61 S.Ct. at 303, the Supreme Court held that a lack of commercial traffic is not “a bar to a conclusion of navigability where personal or private use of boats demonstrates the availability of the stream for the simpler types of commercial navigation.” Thus without evidence of commercial use, FERC may look to other types of use to establish navigability.

In the past, FERC has often relied on evidence of recreational use as a proxy for commercial suitability. Here, however, there is no evidence of recreational use of the Stream. In fact, the only evidence indicating actual use of the Stream comes from the three trips made for the purpose of litigation. Echoing the ALJ, FPL argues that this evidence is insufficient to serve as a proxy for commercial suitability. Instead, FPL argues that FERC precedent requires a navigability finding to be based on “regular and substantial recreational use” in the absence of actual commercial use. We disagree. The statute and the case law make clear that evidence of actual use is not necessary for a navigability determination. “[T]he test [is] whether the river … is used, or capable of being used as a highway for commerce, over which trade and travel is or may be conducted in the customary modes of trade and travel on water.” Economy Light & Power Co. v. United States, 256 U.S. 113, 121-22, 41 S.Ct. 409, 412, 65 L.Ed. 847 (1921) (emphasis added). To determine whether a waterway is capable of being used as a highway for commerce, evidence other than recreational use may be considered. That is, recreational use may be the most common proxy evidence FERC relies on for findings of commercial suitability, but FERC has never taken the position, nor will this Court take the position now, that recreational use is the only proxy evidence on which FERC may rely. “Recreational boating is … of interest because it is boating, not because it is recreational. Any similar personal or private use not involving recreation, such as use of a river as a means of personal transportation, would be equally relevant to a determination of suitability for commercial navigation.” Kennebec Water District, 88 FERC ¶ 61,118, 61,304, 1999 WL 549672 (July 28, 1999). FERC may therefore, in the absence of commercial use, rely on evidence other than recreational use if that evidence is relevant to a finding of navigability. The Supreme Court has identified at least two types of evidence, declaring that the “capacity [of a waterway to meet the needs of commerce] may be shown by physical characteristics and experimentation as well as by the uses to which the streams have been put.” United States v. Utah, 283 U.S. at 83, 51 S.Ct. at 444. In the absence of any “uses to which the [Stream] ha[s] been put,” FERC acted consistently with Supreme Court precedent in relying on the three test canoe trips.

FPL nonetheless argues that the test trips were of a type of specialized, recreational boating that FERC has previously 1158*1158 disregarded when making navigability determinations. The cases on which FPL relies, however, are distinguishable from the facts before us. For example, in Pennsylvania Elec. Co., 56 FERC ¶ 61,435, 62,549-50, 1991 WL 297437 (1991), FERC determined a river was non-navigable because a substantial reach of the river could only be navigated by a kayak (or comparably specialized sporting craft designed for river running) maneuvered by an expert paddler. Similarly, in PacifiCorp Elec. Operations, 73 FERC ¶ 61,365, 62,140, 1995 WL 756395 (1995), rehearing denied, 74 FERC ¶ 61,262, 1996 WL 89781 (1996), FERC determined that a waterway was non-navigable because “all of the evidence of use or suitability for use for recreation concerns use by skilled kayakers or whitewater rafters.” FERC held that “[t]his is not the sort of recreational boating that [it] has recognized as demonstrating the suitability of a river for the simpler types of commercial navigation.” Id. at 62,140-41. The river in PacifiCorp included Class IV rapids that could not be navigated easily without a specialized boat. In the present case, the Stream at most contains Class II rapids that were successfully crossed by a canoe. FERC has repeatedly found waterways to be navigable that may be traversed by a canoe — a simpler type of commercial transportation. See, e.g., Appalachian Power, 311 U.S. at 415-16, 61 S.Ct. at 303. We therefore find that FERC did not depart from precedent when it relied on successful test trips taken in canoes.

FPL further argues that FERC’s navigability test was flawed because FERC failed to identify the possible commercial use to which the Stream may be put. We see no reason why FERC must identify the precise commercial use to which a previously unused waterway may be put in order for the Commission’s finding of navigability to be upheld. The test is whether the waterway is presently “suitable for use for the transportation of persons or property in interstate or foreign commerce,” not whether the waterway is presently suitable for a specific type of commercial activity named by FERC and approved of by an opposing party. 16 U.S.C. § 796(8); see also PacifiCorp, 73 FERC at 62,140, 1995 WL 756395 (“[I]n order to demonstrate that the [waterway] at the project site is a navigable water, [FERC] need only find that it was or is used or suitable for use to transport persons or property between the project site and [another navigable water].”). Consequently, if the evidence in the record supports a finding that the Stream is suitable for transporting persons or property to the Kennebec, then this Court will uphold such a finding without adding a requirement that FERC identify a specific type of commerce associated with the transportation of persons or property. The language of the statute does not require such a finding; neither do we.

Even more important to our analysis, FERC did not rely on the test canoe trips alone when finding that the Stream was navigable. FERC also looked to the Stream’s physical characteristics when making its navigability determination. See United States v. Utah, 283 U.S. at 83, 51 S.Ct. at 443-44. Thus absent evidence of commercial or recreational use, FERC properly relied on both “physical characteristics and experimentation” to determine whether the Stream was suitable for use in commerce. Id.

For the reasons stated, we find that FERC’s interpretation of the FPA’s navigability test was reasonable insofar as it necessarily relied on test canoe trips and the Stream’s physical characteristics in the absence of past or present commercial and 1159*1159 recreational use of the waterway. It is therefore entitled to deference.

B. Substantial Evidence

As our discussion of FERC’s deference-worthy interpretation of the navigability test may suggest, we also conclude that FERC’s finding of navigability is supported by substantial evidence. 16 U.S.C. § 825l(b) (“The finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.”).

The “experimental” test canoe trips provide sufficient evidence that the Stream is navigable. Three witnesses, all with differing interests in the litigation, successfully navigated downstream without incident, and two attempted and succeeded in navigating upstream, albeit with some difficulty. Although FPL made much of the difficulty associated with this upstream travel both in its brief and at oral argument, FPL failed to provide any explanation as to why an upstream trip — either made with ease or with difficulty — is necessary for a navigability finding when the evidence of successful downstream trips is clear. Nowhere in the statute or accompanying case law does it state that the transport of persons or property in interstate or foreign commerce must include two-way transport. We do not view this case as an opportunity to suggest otherwise.

In addition to relying on the three test trips, FERC made a separate determination that the physical characteristics of the Stream rendered it suitable for commercial navigation. The Supreme Court has held that a water’s “capacity [for commercial navigation] may be shown by physical characteristics and experimentation as well as by the uses to which the streams have been put.” United States v. Utah, 283 U.S. at 83, 51 S.Ct. at 444. And in Montana Power Co. v. Federal Power Commission, 185 F.2d 491, 495 (D.C.Cir.1950), this Court declared that “[i]f the stream’s flow, depth, gradient, width and capacity make it `suitable for use’ in interstate commerce, it is subject to the licensing authority of [FERC].” In other words, a waterway may never have been used for transportation, commerce, or recreation, but nonetheless may be suitable for interstate commerce (and subject to licensing by FERC) based on its physical characteristics. See Loving v. Alexander, 745 F.2d 861, 864 (4th Cir.1984) (“The extent and manner of use of a navigable river is not important as long as it is usable as an actual avenue of commerce.”).

The record includes sufficient evidence regarding the Stream’s physical characteristics on which FERC relied in making its navigability determination. FERC noted that the Stream has a very slight gradient, has a depth of approximately three and a half to four feet when the dam is generating (although slightly shallower around the two islands), is wide enough to support passage up and down the Stream and around the two islands, and has few obstacles (e.g., boulders and fallen trees) that a canoeist may steer around without difficulty. Kennebec Water District, 84 FERC ¶ 61,027, 61,125-26, 1998 WL 514602 (July 16, 1998). There is nothing in the record to suggest that the Stream’s physical characteristics preclude navigability when the dam is generating other than a water depth around the islands that is lower than the rest of the Stream. But the same record includes evidence that the three canoeists successfully navigated down the Stream and past the islands. For reasons already stated, the difficulty experienced by one of the canoeists traveling upstream past the islands does not negate the otherwise sufficient evidence. Moreover, even though the dam does not operate all the time, thereby rendering the water level too low 1160*1160 to navigate year round, navigability need not be available “at all seasons of the year, or at all stages of the water.” Economy Light & Power, 256 U.S. at 122, 41 S.Ct. at 412.

FPL attempts to bolster its argument with evidence that the test trips upon which FERC relied were made during periods of unusual water conditions. FPL argues that this should negate FERC’s navigability finding. That is, FPL argues that since “susceptibility of use as a highway for commerce should not be confined to exceptional conditions or short periods of temporary high water,” the canoe test trips do not show the stream to be navigable. Loving, 745 F.2d at 865; see also United States v. Utah, 283 U.S. at 87, 51 S.Ct. at 445. True, the evidence indicates that two of the test trips took place during periods of high water, but that same evidence indicates that the remaining test trip took place during a period of low water. FPL’s witness navigated up and down the Stream when the Kennebec’s flow was 4030 cubic-feet per second (cfs) (down from its average flow of 5000 cfs), an event which would have reduced the backwater effect from the Kennebec and lowered the already low depth of water around the islands. This is sufficient evidence that the Stream can be navigated both up and downstream during non-optimal water levels.

We acknowledge that the evidence of navigability is not overwhelming. But to uphold FERC’s navigability determination, we need only find that the evidence on which the finding is based is substantial. 16 U.S.C. § 825l(b); see Consolidated Hydro, Inc. v. FERC, 968 F.2d 1258, 1261 (D.C.Cir.1992). The “substantial evidence” standard requires more than a scintilla, but can be satisfied by something less than a preponderance of the evidence. See Whitmore v. AFIA Worldwide Ins., 837 F.2d 513, 515 n. 4 (D.C.Cir.1988). We therefore find that the test trips, together with the Stream’s physical characteristics, constitute substantial evidence to support FERC’s finding of navigability.

IV. Conclusion

FERC’s reliance on test canoe trips and the physical characteristics of the Stream, in the absence of historical or present commercial or recreational use, is a reasonable interpretation of the navigability test set forth in the Federal Power Act and is therefore entitled to deference by this Court. Moreover, the record includes substantial evidence to support FERC’s navigability finding. Three witnesses were able to successfully navigate down the Stream, and the physical characteristics of the Stream support a finding of navigability. For these reasons, the petitions for review are denied.

[1] Union Gas was previously required to be licensed pursuant to FERC’s incorrect interpretation of a different section of the FPA.

Source: FPL Energy Maine Hydro LLC v. FERC

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.


R. A Landolt
Director, Hydro Resources


Document: Hydro-KWH-2000 (PDF)

Statement of Generation in KWhs for Hydropower 1999

Dear Mr. Boergers:

I, Randy A. Landolt, being duly sworn, depose and say: That I am the Managing 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, 1998, through September 30, 1999, as shown on the books and records of PacifiCorp, is 5,771,528,000 kilowatt hours as detailed on the attached table, which lists the generation at each project.


R. A. Landolt
Managing Director, Hydro Resources


Document: Hydro-KWH-1999 (PDF)

Statement of Generation in KWhs for Hydropower 1998

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, 1997, through September 30, 1998, as shown on the books and records of PacifiCorp, is 5,313,405,000 kilowatt hours as detailed on the attached table which lists the generation at each project.


R. A. Landolt
Director, Hydro Resources


Document: Hydro-KWH-1998 (PDF)