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 Derek.White@pacificorp.com.

Sincerely,

Mark Sturtevant
Managing Director, Hydro Resources

Bend-Hydro-Dam-Safety-plan-2012_Page_2

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)

FPL ENERGY MAINE HYDRO LLC, Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
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.

Sincerely,

R. A Landolt
Director, Hydro Resources

 kwh2000

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.

Sincerly,

R. A. Landolt
Managing Director, Hydro Resources

Hydro-KWH-1999_Page_2

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.

Sincerely,

R. A. Landolt
Director, Hydro Resources

Hydro-KWH-1998_Page_2

Document: Hydro-KWH-1998 (PDF)

FERC’s abdication of jurisdiction over hydroelectric dams on nonnavigable rivers

27 Envtl. L. 741
(Cite as: 27 Envtl. L. 741)

Environmental Law
Fall 1997

Comment
*741 FERC’S ABDICATION OF JURISDICTION OVER HYDROELECTRIC DAMS ON NONNAVIGABLE RIVERS: A POTENTIAL SETBACK FOR COMPREHENSIVE STREAM MANAGEMENT

Max J. Mizejewski

Copyright © 1997 Environmental Law; Max J. Mizejewski

The Federal Energy Regulatory Commission (FERC or Commission) controls the nations nonfederal hydroelectric development through the issuance of permits for any projects on the nation’s waterways. Recently, FERC changed its previous stance on its jurisdiction over hydroelectric projects on nonnavigable rivers. In denying its jurisdiction over three hydroelectric dams on nonnavigable rivers, FERC left thirty-two other such projects’ relicensing in question. This Comment discusses the history of the Federal Water Power Act, which established FERC, and the Commission’s jurisdiction, and analyzes the possible repercussions from the recent abdication of jurisdiction over hydroelectric projects on nonnavigable rivers.

I. Introduction

Congress established the Federal Energy Regulatory Commission (FERC or Commission), originally known as the Federal Power Commission (FPC), in the Federal Water Power Act of 1920 (FWPA) [FN1] to provide comprehensive control over nonfederal hydroelectric development on the nation’s waters. [FN2] Notwithstanding this mandate, the Commission recently denied that it had jurisdiction to relicense three hydroelectric dams on *742 nonnavigable rivers. [FN3] This ruling means that the Commission is likely to excuse thirty-two other similarly situated projects from relicensing in the next few years. [FN4] If FERC relinquishes jurisdiction over these projects, important public and environmental protections may be lost. [FN5]

FERC’s uncertainty about its jurisdiction revolves around amendments made to the FWPA over sixty years ago, in 1935, that renamed the FWPA the Federal Power Act (FPA). [FN6] These amendments expanded the Commission’s authority to require projects on nonnavigable rivers to be licensed. However, the amendments applied only to projects that had undergone construction or major modification after August 26, 1935, the date of the amendments. [FN7] Therefore, unless FERC determines that a project on a nonnavigable river has undergone major modification since 1935, it must *743 find its relicensing authority in the 1920 FWPA. [FN8] The projects that are the subject of this paper were all built before August 26, 1935.

The 1920 FWPA limited the Commission’s express licensing authority to projects on navigable rivers. [FN9] However, the Act required the Commission to license projects on nonnavigable rivers if it determined that they affected the interests of interstate commerce. [FN10] The Commission interpreted this provision to give it an implied authority to license projects on nonnavigable rivers, and the Commission licensed approximately 125 such projects between 1920 and 1935. [FN11]

In 1965, in Federal Power Commission v. Union Electric Company (Taum Sauk), the Supreme Court affirmed the Commission’s authority to require projects on nonnavigable rivers to be licensed if they were connected to an interstate power grid. [FN12] This decision prompted the FPC to encourage unlicensed projects that were on nonnavigable waters and connected to an interstate power grid to file license applications, including those built before 1935. [FN13] After receiving applications from those projects that voluntarily filed, the Commission licensed the ones that were connected to an interstate power grid. Section 23 of the FPA makes it clear that these projects, collectively known as the Taum Sauk projects, are barred from operating without a license once the Commission determines that their connection with an interstate power grid affects interstate commerce. *744[ FN14] This is true regardless of whether the projects have undergone any post-1935 construction.

In 1972, in Farmington River Power Co. v. Federal Power Commission, Farmington River Power Company, the operator of a 1925 project on a nonnavigable river, appealed an FPC order commanding it to file a license application. [FN15] The company argued that section 23 of the 1920 FWPA gave it discretion not to file a license application. [FN16] The Second Circuit agreed, holding that because the original FWPA did not give the Commission authority to investigate a project’s effects on interstate commerce unless an operator voluntarily filed a license application, and because the 1935 amendments were not retroactive, the FPC could not require Farmington Power to obtain a license. [FN17]

Recently, FERC interpreted Farmington to mean that, absent post-1935 construction, the Commission loses jurisdiction over the Taum Sauk projects after the expiration of their licenses. [FN18] It is unlikely that Congress intended the Commission to relinquish its jurisdiction after making a determination that these projects affect interstate commerce. The Commission’s jurisdiction over projects on nonnavigable rivers is now, and has always been, grounded on a determination that the project affects interstate commerce. [FN19] Once the Commission makes this determination, the agency has jurisdiction, which it does not lose unless it determines that the project no longer affects interstate commerce.

FERC’s determination that it now lacks jurisdiction over these projects seriously undermines the fundamental purpose of the FPA–to provide comprehensive management of all water-power resources in *745 which the federal government has a legitimate interest. [FN20] This paper examines FERC’s jurisdiction to relicense pre-1935 hydroelectric projects located on nonnavigable rivers that have not undergone any post-1935 construction, are not located on lands of the United States, and do not use water power from a government dam. Part II discusses the history of the FPA and FERC’s jurisdiction under the Act. Part III examines the circumstances which led the FPC to license the thirty-six Taum Sauk projects. Part IV discusses FERC’s authority over the Bend Project, the first Taum Sauk project over which FERC relinquished its jurisdiction. Part V concludes that FERC’s failure to assert jurisdiction over the Taum Sauk projects upon the expiration of their current licenses is a violation of the FPA.

II. FERC’s Jurisdiction Under The Federal Power Act
A. Historical Overview

Early federal management of the nation’s rivers focused primarily on navigation. The U.S. Army Corps of Engineers (Corps), the first federal agency in charge of river development, regarded rivers as highways for commercial transportation. [FN21] The Corps viewed all other uses, such as hydropower and irrigation, as secondary to navigation. [FN22] Consequently, early hydroelectric projects were developed under a hodgepodge of federal and local regulations. [FN23]In the late nineteenth century, the Progressive Conservationists criticized water-power development as being inefficient and based more on local politics than science. [FN24] The Progressive Conservationists sought to give equal consideration to river uses other than navigation, such as irrigation and energy production, in an effort to maximize the efficient use of river systems. [FN25] Largely through their efforts, a policy of comprehensive basin-wide planning for multiple uses eventually replaced the earlier navigation-oriented approach to river development. [FN26] This change in federal water policy laid the foundation for legislation, such as the Federal Water Power Act (FWPA), designed to encourage comprehensive development of the nation’s water resources.

The earliest federal legislation regulating dams was the Rivers and Harbors Act of 1890. [FN27] That statute required the consent of the Secretary of War for all obstructions in U.S. waters that were not within established harbor lines. [FN28] The Act, however, did not specify whether Congress’s jurisdiction *746 extended to nonnavigable rivers. Conservationists argued that a river system, if navigable in part, was a unit from its forest headwaters to its mouth, and that Congress had jurisdiction over the whole river. [FN29] The fact that activities in nonnavigable portions of navigable rivers can affect the navigability of the river downstream supported this notion. Private interests, such as power companies attempting to secure favorable water power legislation, argued that Congress had jurisdiction only over waters actually used for navigation. [FN30]

In 1899, the Supreme Court settled this debate in favor of the conservationists, holding that the Rivers and Harbors Act gave the Corps jurisdiction to the full extent of the Commerce Clause. [FN31] Thus, the Corps could prevent construction in nonnavigable rivers that affected the navigable capacities of the river downstream. [FN32]

Enactment of the FWPA, now renamed the Federal Power Act (FPA), was inspired in large part by America’s participation in World War I. By 1917, certain coal and oil reserves, which then almost exclusively fueled the United States, were becoming increasingly sparse, and legislation to encourage alternative power sources had proved inadequate. [FN33] In December of 1917, President Wilson presented a draft water power bill to the relevant congressional committees. [FN34] The bill aimed to encourage development of America’s largely untapped hydropower resources. After three years of debate, Congress passed the FWPA in 1920, providing comprehensive water power legislation for the nation’s waters. [FN35]

*747 B. FERC’s Licensing Authority

The 1920 FWPA gave the Federal Power Commission (FPC) two sources of licensing authority, section 4(d) and section 23. Section 4(d) authorized the Commission to license projects 1) on navigable waters, 2) on public lands, or 3) using surplus water or water power from a government dam. [FN36] Thus, section 4(d) limited the Commission’s licensing authority on private lands to projects on navigable waters. However, the Commission interpreted section 23 of the Act to give it an implied authority to license projects on nonnavigable rivers. [FN37] Section 23 allowed operators that were uncertain as to whether the Commission had jurisdiction over them to file a “declaration of intention” to build on a nonnavigable watercourse. [FN38] Filing this document obligated the Commission to determine whether a project would affect the interests of interstate commerce. [FN39] If the Commission determined that it would, the developer could not proceed with construction until obtaining a license. [FN40]

The 1935 amendments, which renamed the FWPA as the FPA, extended the Commission’s authority to require projects to obtain a license. Section 4(e) of the amended Act expanded the Commission’s express licensing authority to include all projects on “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.” [FN41] The purpose of this amendment was to clarify the Commission’s pre-existing implied authority to license projects on nonnavigable waters that were required to be licensed under section 23 of the 1920 Act because they affected interstate commerce. [FN42]

The Commission interpreted section 23(b)(1) of the amended Act [FN43] to require licenses for projects 1) located on navigable waters of the United States, 2) occupying public land or reservations of the United States, 3) *748 using surplus water or water power from a federal dam, or 4) located on nonnavigable waters over which Congress has Commerce Clause jurisdiction and that have undergone construction or major modification after August 26, 1935. [FN44] Under section 23(b)(1), developers wishing to build hydroelectric facilities on nonnavigable rivers are required to file a declaration of intention to build on a nonnavigable watercourse. [FN45] By making this filing requirement mandatory, the 1935 amendment to section 23 extended the Commission’s jurisdiction by taking the discretion to file away from the operator, thereby increasing the Commission’s investigatory power to determine whether a project affected intestate commerce. The amendment expanded who had to file, but did not alter the Commission’s preexisting broad licensing authority. [FN46] Section 23 has always required the Commission to license projects on nonnavigable waters if it found they affected interstate commerce. [FN47]

III. The Taum Sauk Projects
A. Taum Sauk

The Taum Sauk Project, owned and operated by Union Electric Company (Union), is a pumped storage hydroelectric facility located on a nonnavigable tributary of the Black River in Missouri. [FN48] The power generated by the facility supplies electricity to Missouri, Illinois, and Iowa. [FN49] In 1962, Union filed a declaration of intention to construct the project, as required by section 23(b)(1) of the Federal Power Act (FPA). [FN50] After an investigation, the Federal Power Commission (FPC) ordered Union to obtain a license based on two findings made by the hearings examiner: First, that the project would affect the downstream navigability of the Black River. Second, that the water power generated by the project would be used for the interstate transmission of electricity, thus affecting the interests of interstate commerce. [FN51]

Union appealed the Commission’s order to the courts. [FN52] In 1963, the Eighth Circuit reversed the order, holding that the effects on interstate commerce contemplated by the FPA were limited to effects on downstream*749 navigation. [FN53] The FPC petitioned to the Supreme Court, and the Court granted certiorari.

In 1965, in Federal Power Commission v. Union Electric Company, the Court considered whether, in enacting the Federal Water Power Act (FWPA), Congress intended to invoke its full Commerce Clause authority over hydroelectric projects located on waters subject to federal jurisdiction. Although there were no express references to the interstate transmission of electricity in the FWPA, the Court held that the terms of the Act, particularly section 23, reached beyond the control of navigation, and included the interstate transmission of electricity. [FN54] The Court noted that when Congress wanted to bring aspects of commerce within the full sweep of its constitutional authority, it regulated not only commerce, but also matters which “affect” commerce. [FN55] Thus, the Court concluded that the language of section 23, requiring projects to be licensed if they affected interstate commerce, reflected Congressional intent to give the Commission jurisdiction over all projects within Commerce Clause authority. [FN56]

The FPC interpreted the Court’s Taum Sauk decision to mean that all projects connected to an interstate power grid had to be licensed, including those, such as the Bend Project, that were built before 1935. Consequently, the FPC sent letters to all known pre-1935 projects that were connected to an interstate power grid. These letters, which referenced the Taum Sauk decision, encouraged the operators to file applications. [FN57] After reviewing the resulting applications, the Commission issued licenses to those projects it determined affected interstate commerce. [FN58]

B. Farmington

The Farmington River Power Company (Farmington Power), operator of a 1925 hydroelectric dam on a nonnavigable portion of the Farmington River in Rainbow, Connecticut, did not file an application when the Commission requested it to do so. Consequently, in 1966, the Commission ordered Farmington Power to file an application. [FN59] Rather than basing its authority to issue this order on a retroactive application of the 1935 amendments, the Commission maintained that it always had jurisdiction over projects on nonnavigable rivers that affected interstate commerce. [FN60]

The Commission explained that the 1935 amendments to section 23 did not affect the basic jurisdictional standards of nonnavigable rivers, contending that the concepts of “jurisdiction under [Congress’s] authority *750 to regulate commerce” and “the interests of interstate or foreign commerce [being] affected by such proposed construction” were included in the original 1920 enactment. [FN61] Farmington Power disagreed with the Commission’s interpretation of the FPA, arguing that since there had been no project construction after 1935, section 23 of the 1920 FWPA gave it discretion to file a license application. Farmington Power filed an incomplete application under protest and appealed the Commission’s order to the Second Circuit. [FN62]

In 1972, the Second Circuit vacated the Commission’s order, holding that the FPA only authorized the Commission to require post-1935 projects on nonnavigable rivers to apply for a license, not pre-1935 projects. [FN63] The court held that since Farmington Power was not required to file for a license under the 1920 FWPA, and since the 1935 amendments were not retroactive, the Commission lacked jurisdiction to require a license unless the company voluntarily filed an application. [FN64] The court reasoned that since Farmington Power did not file a voluntary application, the Commission did not have an opportunity to determine whether the project affected interstate commerce; therefore, the FPC had no jurisdiction to require the project to be licensed. [FN65] The Farmington decision did not, however, affect the Commission’s authority to relicense projects that voluntarily filed license applications, because the Commission would then have had an opportunity to determine if the projects affected interstate commerce.

The holding in Farmington is inapplicable to the relicensing of projects that the Commission already determined affected interstate commerce. Unlike Farmington Power, the Taum Sauk projects filed complete applications after being encouraged to do so by the Commission. This allowed the Commission to make a determination that the projects affected interstate commerce. The projects cannot opt out of the Commission’s jurisdiction once the agency makes this determination. [FN66]

IV. The Bend Project

The Bend Hydroelectric Project was the first Taum Sauk project over which Federal Energy Regulatory Commission (FERC) denied relicensing jurisdiction. [FN67] This 1.1 megawatt project is located on a nonnavigable portion of the Deschutes River within the City of Bend, Oregon. [FN68] The original *751 owner, Pacific Power and Light Company (PP&L), constructed the project in 1913 and installed additional generating units in 1916 and 1917. The project has not undergone any major modification since 1917. [FN69] The project is currently owned and operated by PacifiCorp Electric Company, the successor corporation of PP&L, and is connected to Bonneville Power Administration’s (BPA) interstate power system. [FN70]

In 1967, PP&L voluntarily filed an application for a minor license for the Bend Project after receiving a letter from the Commission encouraging it to do so. [FN71] After reviewing PP&L’s application, the Commission concluded that the project affected interstate commerce due to its connection with BPA’s interstate power grid. [FN72] Section 23 of the Federal Water Power Act (FWPA) requires the project to be licensed once the Commission has made this determination. [FN73] As a result, the Federal Power Commission (FPC) issued a minor license for the project on March 20, 1970, with an expiration date of December 31, 1993. [FN74]

At the time of the licensing hearings, the United States Department of the Interior recommended that the United States Fish and Wildlife Service (USFWS) undertake studies to determine fish migration patterns and the need for fish passage facilities. [FN75] Consequently, Article 14 of the license stated that the “[l]icensee shall consult and cooperate with the U.S. Fish and Wildlife Service . . . for the purpose of conserving and developing fish and wildlife resources . . . and shall make such reasonable modifications of project structures and operations for fish and wildlife.” [FN76] However, USFWS did not use this provision to require PP&L to make any modifications.

In 1991, two years before the expiration of its license, PacifiCorp filed an application for renewal of the Bend Project’s license. [FN77] FERC’s environmental analysis on the relicensing of the project concluded that the project needed major rehabilitation to continue generating throughout a new licensing term. [FN78] Further, the report showed that the project needed substantial work to mitigate its effects on wild rainbow and brown trout because the turbine intakes were unscreened, and no downstream or *752 upstream fish passage facilities existed. [FN79] Consequently, the Secretary of the Interior prescribed upstream and downstream fishways for the project pursuant to his authority under section 18 of the FPA. [FN80] PacifiCorp informed the Commission that installing a downstream fish passage facility would be so costly that it would be more profitable to retire the project than to comply with Interior’s fishway prescription. [FN81]

After reconsidering its jurisdiction over the Bend Project, FERC determined that it did not have authority to require PacifiCorp to obtain a subsequent license and allowed PacifiCorp to withdraw its application. [FN82] FERC reasoned that because the project was not on a navigable water as defined by the FPA, [FN83] and had not undergone any post-1935 construction, *753 relicensing was discretionary. Consequently, according to FERC, PacifiCorp does not have to comply with the environmental protections of the FPA, such as Interior’s fishway prescription. Jurisdiction over the project is currently vested in the State of Oregon. [FN84]

The United States Department of the Interior disagreed with FERC’s decision and filed for a rehearing. [FN85] Interior claimed that once the Commission determined that the Bend Project affected the interests of interstate commerce and issued it a license, there was no jurisdictional impediment to relicensing. [FN86] The FPA does not give either FERC or the applicant discretion to opt out of FERC’s jurisdiction after the agency has made this determination. The statute is clear: projects that the Commission determines affect the interests of interstate commerce, such as the Taum Sauk projects, must be licensed. [FN87] FERC had no authority to relinquish jurisdiction over the Bend Project because both the original and amended acts mandated it. [FN88]

Several environmental groups also opposed the Commission’s ruling and intervened in the licensing proceeding. [FN89] But FERC affirmed the order *754 on rehearing, and none of the parties challenged the decision in the courts. [FN90] Apparently, the parties decided that the Bend Project’s adverse effects on trout populations were insufficient to warrant costly litigation. However, it is probable that the Department of the Interior or an environmental group will bring suit if FERC continues to relinquish jurisdiction over the thirty-two remaining licensed projects.

VI. Conclusion

The Federal Power Act (FPA) was designed to regulate all water power projects in which the federal government had a legitimate interest. Since 1920, section 23 of the original Federal Water Power Act (FWPA) and of the later FPA has contemplated regulation of projects on nonnavigable rivers which affected the interests of interstate commerce. Beginning in 1935, these projects had to notify the Commission of their existence. This mandatory filing requirement gave the Commission the means to assert federal control over all projects affecting interstate commerce, consistent with the original intention of the Act. However, from the beginning, the Commission has had jurisdiction over projects it determined affected the interests of interstate commerce. [FN91] Because FERC determined that the Taum Sauk projects affected the interests of interstate commerce, [FN92] FERC may not relinquish jurisdiction over them. If FERC continues to relinquish jurisdiction over other projects affecting interstate commerce, it will be a major setback to the comprehensive, federal stream management envisioned by the drafters of the FPA and the environmental protection of the nation’s waters. [FN93]

Max J. Mizejewski J.D. 1997, Northwestern School of Law of Lewis & Clark College; B.A. 1993, University of California, Berkeley. The author would like to thank Professor Michael Blumm for his comments and support.

[FN1]. Ch. 285, § 1, 41 Stat. 1063 (1920).

[FN2]. See Federal Power Comm’n v. Union Elec. Co., 381 U.S. 90, 98 (1965). The FPC, originally composed of the Secretary of War, the Secretary of the Interior, and the Secretary of Agriculture, was in charge of improving navigation and developing water power through licensing. FWPA, § 4, 41 Stat. at 1065-66 (1920).

[FN3]. The three orders in which FERC relinquished jurisdiction were: PacifiCorp Elec. Operations, Project No. 2643, 73 F.E.R.C. P 61,365 (1995); Duke Power Co., Project No. 2465, 74 F.E.R.C. P 61,291 (1996); and Duke Power Co., Project No. 2406, 74 F.E.R.C. P 61,292 (1996).

[FN4]. 17 Hydrowire No. 7 (Apr. 8, 1996). Most of these projects are under 5 megawatts (MW). However, 4 are over 15 MW, the largest one being PacifiCorp’s 61 MW Cutler project. The projects have a total capacity of 195.8 MW. The projects are located in the following states: Maine (Project Nos. 2552, 2555, 2556, 2557, 2559, and 2613), Vermont (Project Nos. 2396, 2397, 2399, 2400, 2489, 2490, and 2513), Wisconsin (Project Nos. 2476, 2522, 2525, 2546, 2560, 2582, and 2587),

North Carolina (Project Nos. 2541 and 2607), Washington (Project Nos. 2544 and 1587), California (Project No. 2687), Georgia (Project No. 2336), Massachusetts (Project No. 2608), Montana (Project No. 2543), New York (Project No. 2616), Oregon (Project No. 2643), Utah (Project No. 2687), and Virginia (Project No. 2466). The Condit dam (Project No. 2342) in Washington was recently removed from this list because FERC determined that it was on a navigable waterway due to historic log drives. 76 F.E.R.C. P 62,268 (1996).

[FN5]. Licensing protects consumers of electricity by securing public consent before operators undertake development. Licensing also provides protection to fish and wildlife. The Electric Consumers Protection Act (ECPA), which amended the FPA in 1986, requires the Commission to give “equal consideration” to power development and preservation of recreational, ecological, and other non-power values of rivers. Pub. L. No. 99-495, 100 Stat. 1243 (1986) (codified at 16 U.S.C. § 797(e) (1994)). ECPA also requires the Commission to consider the recommendations of federal and state agencies, as well as Indian tribes, that have jurisdiction over resources which may be affected by hydroelectric development and to solicit proposed terms and conditions from these agencies and tribes. Id. (codified at 16 U.S.C. § 803(a)(2)(B) (1994)). There are several provisions in the FPA designed to achieve these conservation goals. For example, section 18 allows the Secretary of the Interior to require projects to have fishways. 16 U.S.C § 811 (1994). Also, section 10(j) encourages conservation by requiring the Commission to give “due weight” to recommendations made by the National Marine Fisheries Service (NMFS), the United States Fish and Wildlife Service (USFWS), as well as state fish and wildlife agencies. Id. § 803(j). However, while section 10(j) directs FERC to consider environmental issues in the hydropower licensing process, it has been criticized as being ineffective because it does not delineate specific guidelines for the Commission to follow. See, e.g., Randal G. Buckendorf, FERC Interaction With Fish and Wildlife Agencies in Hydropower Licensing Under the Federal Power Act Section 10(j) Consultation Process, 27 Tulsa L.J. 433 (1992) (evaluating FERC’s revamped section 10(j) consultation process after the ECPA amendments).

[FN6]. The FWPA was amended by Title II of the Public Utility Act of 1935, ch. 687, § 201, 49 Stat. 838 (1935), and codified as Part I of the FPA, 16 U.S.C. §§ 791-823 (1994).

[FN7]. Pennsylvania Elec. Co., Project No. 2370, 56 F.E.R.C. P 61,435, 62,548 (1991).

[FN8]. Id.

[FN9]. Ch. 285, § 4(d), 41 Stat. 1065 (1920).

[FN10]. Section 23 of the 1920 FWPA reads as follows:

[Operators wishing to build on a nonnavigable watercourse] may in their discretion 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 proposed construction…[operators] shall not proceed with such construction until it shall have applied for and shall have received a license under the provisions of this Act.

Ch. 285, § 23, 41 Stat. 1075 (1920). This section makes filing discretionary, but makes licensing mandatory once an application is filed if the Commission determines that the project would affect interstate commerce. The 1935 amendments changed “may in their discretion file” to “shall before such construction file” so that section 23(b)(1) of the amended FPA reads:

[Operators wishing to build on a nonnavigable watercourse] 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 proposed construction, [operators] shall not construct, maintain, or operate such dam…until it shall have applied for and shall have received a license under the provisions of this Chapter. 16 U.S.C. § 817(1) (1994) (emphasis added).

[FN11]. Hearings on H.R. 5423 before the House Comm. on Interstate and Foreign Commerce, 74th Cong. 469 (1935) (statement of Dozier DeVane, solicitor, Federal Power Commission).

[FN12]. 381 U.S. 90, 95 (1965).

[FN13]. Nantahala Power and Light Co., 36 F.P.C. 119, 121 (1966).

[FN14]. 16 U.S.C. § 817(1) (1994).

[FN15]. 455 F.2d 86 (2d Cir. 1972).

[FN16]. Id. at 88.

[FN17]. Id. at 90-91.

[FN18]. PacifiCorp Elec. Operations, Project No. 2643, 73 F.E.R.C. P 61,365, 62,138-39 (1995). The FPA limits license terms to a maximum of 50 years. 16 U.S.C § 799 (1994). This limit represents a compromise between those members of Congress who wanted to encourage private control over rivers and those members who wanted increased public control. The limit encourages private control by ensuring that developers will be able to operate projects for a sufficient number of years to recoup the original investment and make a reasonable profit. On the other hand, the limit serves the public interest by forcing the Commission to do a periodic review of the project at least once every 50 years. Relicensing is not intended to be a rubber stamp, non-public process. The procedures and substance applicable to original licenses, including the treatment of non-developmental values, apply fully in relicensing. The Commission has a duty, especially in light of the ECPA, to ensure that older projects are modified to achieve a better balance between power generation and protection of environmental resources. Dam existence is properly part of the “environmental baseline” as defined by 50 C.F.R. § 402.02 (1996). See Idaho Dep’t of Fish and Game v. National Marine Fisheries Serv., 850 F. Supp. 886, 894 (D. Or. 1994) (finding that the environmental baseline should consider effects of a dam). However, upon relicensing, the Commission considers operation of the existing dam as the no-action alternative rather than the natural river as it existed before the dam. See City of Tacoma, Project No. 460, 71 F.E.R.C. P 61,381 (1995) (rejecting Trout Unlimited’s argument that pre-project conditions be considered as the environmental baseline).

[FN19]. 16 U.S.C. § 817(1) (1986).

[FN20]. Federal Power Comm’n v. Union Elec. Co., 381 U.S. 90, 98 (1965).

[FN21]. Samuel P. Hays, Conservation and the Gospel of Efficiency: The Progressive Conservation Movement 1890-1920 8 (1959).

[FN22]. Id.

[FN23]. H.R. Rep. No. 66-61, at 2-3 (1919).

[FN24]. Hays, supra note 21, at 271.

[FN25]. Id. at 100-05.

[FN26]. Id.

[FN27]. Ch. 907, § 1, 26 Stat. 426 (1890).

[FN28]. Id. § 7, 26 Stat. at 454.

[FN29]. See Farmington River Power Co., Project No. 2577, 44 F.P.C. 1393, 1406 (1970) (giving a historic overview of the scope of Congress’s jurisdiction over the nation’s water resources).

[FN30]. Id.

[FN31]. United States v. Rio Grande Dam and Irrigation Co., 174 U.S. 690 (1899).

[FN32]. Id. at 708-09.

[FN33]. President Roosevelt vetoed all but four of the twenty-five bills drafted to allow dams under the General Dam Act of 1906. The President was particularly dissatisfied with the bills because they did not provide for a license fee or limit the license term to a fixed number of years. Congress revised the General Dam Act in 1910 to comply with the President’s concerns. However, due to imperfections in that bill, only two of the fourteen special waterpower acts passed by Congress resulted in operating dams. In all, of the twenty-nine special acts passed under the General Dam Acts of 1906 and 1910, only eight went to completion, providing a total energy capacity of only 140,000 horsepower. H.R. Rep. No. 66-61, at 2-3 (1919).

[FN34]. Id. at 4.

[FN35]. Most of the federal power statutes enacted prior to the FWPA focused on coal and oil resources because steam power could be developed more quickly and easily than hydropower, with fewer legal restrictions and with greater security to the investment. The FWPA encouraged development of water power in at least three ways. First, the Act coordinated the administration of water power in a single commission whose energies were intended to focus on creating a constructive national program of intelligent, economical utilization of the nation’s water power resources. Second, the preliminary permit provision, which maintained the priority of the application while the applicant conducted preliminary studies, allowed for the security of capital initially invested. Third, a federal license allowed preemption of state and local laws so that developers could rely on a standardized regulatory scheme. Id. at 5.

[FN36]. Ch. 285, § 4, 41 Stat. 1063, 1065 (1920).

[FN37]. See Cooley v. Federal Energy Reg. Comm’n, 843 F.2d 1464, 1467 (D.C. Cir. 1988).

[FN38]. Ch. 285, § 23, 41 Stat. 1063, 1075 (1920).

[FN39]. Id.

[FN40]. Section 23 provides that if, after receiving a declaration of intention, the Commission finds that the project affects interstate commerce, the operator “shall not proceed with such construction until it shall have applied for and shall have received a license under the provisions of this act.” Id. (emphasis added).

[FN41]. 16 U.S.C. § 797(e) (1994).

[FN42]. See Cooley, 843 F.2d at 1469. In a floor debate regarding the amendment, Representative Robert Crosser (D-Ohio) stated: “this amendment simply clarifies what is already the law of the land….the [Commission has the] right to regulate not only the waters that are actually navigable but other waters over which Congress has jurisdiction by virtue of its right to regulate interstate commerce.” 79 Cong. Rec. 10,339, 10,568 (June 29, 1935); see also, Hearings on H.R. 5423 before the House Comm. on Interstate and Foreign Commerce, 74th Cong. 470 (1935) (statement of Dozier DeVane, solicitor, Federal Power Commission) (stating that the 1935 amendments did not add anything to section 4 jurisdiction, but merely made express the implied power which the Commission already had to issue licenses in cases where it determined a project on a nonnavigable stream would affect interstate commerce under section 23).

[FN43]. 16 U.S.C. § 817(1) (1994).

[FN44]. Pennsylvania Elec. Co., Project No. 2390, 56 F.E.R.C. P 61,435, 62,548 (1991).

[FN45]. 16 U.S.C. § 817(1) (1994).

[FN46]. See Federal Power Comm’n v. Union Elec. Co., 381 U.S. 90, 97 (1965).

[FN47]. See supra note 42 and accompanying text.

[FN48]. See Union Electric, 381 U.S. at 92. Pumped storage plants are used to supplement the energy produced by other plants during periods of peak demand. The Taum Sauk Project uses power from other sources to pump water into an upper pool during off-peak periods. Then, during periods of peak demand, the project releases this water through hydroelectric units. Id.

[FN49]. Approximately 350 MW are generated for use in Missouri, Illinois, and Iowa. Id. at 93.

[FN50]. Id. at 92.

[FN51]. Union Elec. Co., 27 F.P.C. 801, 818 (1962).

[FN52]. Aggrieved parties can apply for a rehearing within 30 days of a FERC order. 16 U.S.C. § 825l(a) (1994). Federal Circuit courts have jurisdiction to hear appeals from the Commission’s order on rehearing as long as the suit is filed within 60 days of the final order. Id. § 825l(b).

[FN53]. Federal Power Comm’n v. Union Elec. Co., 326 F.2d 535, 537 (8th Cir. 1963).

[FN54]. Federal Power Comm’n v. Union Elec. Co., 381 U.S. 90, 105-06 (1965).

[FN55]. Id. at 96 (citing Polish Nat’l Alliance v. Labor Bd., 322 U.S. 643, 647 (1943)).

[FN56]. Id.

[FN57]. Nantahala Power and Light Co., 36 F.P.C. 119, 121 (1966).

[FN58]. See, e.g., Pacific Power & Light Co., Project No. 2643, 43 F.P.C. 465 (1970) (issuing license to project that affected interstate commerce because of its connection to an interstate power grid).

[FN59]. The Farmington River Power Co., Project No. 2577, 44 F.P.C. 1393, 1432 (1970).

[FN60]. Id. at 1396.

[FN61]. Id. at 1395-96.

[FN62]. Farmington River Power Co. v. Federal Power Comm’n, 455 F.2d 86, 87 (2d Cir. 1972).

[FN63]. Id. at 91.

[FN64]. Id. at 89-91.

[FN65]. Id.

[FN66]. This situation is analogous to in personam jurisdiction: once the developers submitted to FERC’s jurisdiction by having minimum contacts with the agency, they were bound by its jurisdiction. See International Shoe Co. v. Washington, 326 U.S. 310 (1945) (holding that due process requires only “minimum contacts” for a court to have jurisdiction).

[FN67]. See PacifiCorp Elec. Operations, Project No. 2643, 73 F.E.R.C. P 61,365 (1995).

[FN68]. Id. The Deschutes River basin occupies an area of 10,400 square miles in north central Oregon. The river has its headwaters in the Three Sisters area of the Oregon Cascades and flows north along the eastern slopes of that range before joining the Columbia River near the Dalles.

[FN69]. Id.

[FN70]. PacifiCorp Elec. Operations, 73 F.E.R.C. at P 62,136.

[FN71]. Pacific Power & Light Co., Project No. 2643, 43 F.P.C. 465 (1970). A “minor water power project” is one that has a total installed generating capacity of 1.5 MW or less. 18 C.F.R. § 4.30(17) (1996).

[FN72]. Pacific Power & Light Co., 43 F.P.C. at 466.

[FN73]. 16 U.S.C. § 817(1) (1994).

[FN74]. Pacific Power & Light Co., 43 F.P.C. at 467.

[FN75]. Id. at 465.

[FN76]. Id. at 467-68.

[FN77]. PacifiCorp Elec. Operations, 73 F.E.R.C. P 61,365, 62,136 (1995). 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) (1996).

[FN78]. John H. Clements, Director, Division of Project Review, F.E.R.C., Bend Project No. 2643 Environmental Analysis, at vi (1995).

[FN79]. Id. Rainbow and brown trout are known as “resident fish” because they do not migrate to the sea like anadromous fish, such as salmon. However, the term “resident” is a misnomer because many resident fish, such as the wild rainbow trout in the upper Deschutes River, migrate over long distances during their lifetime. Almost all river fish tend to move towards headwaters to spawn and their migratory nature requires them to be able to pass through river sections blocked by dams. The Oregon Department of Fish and Wildlife Habitat Conservation Division estimated that of the approximately 26,400 wild trout to pass through the Bend Project’s powerhouse between January and October of 1990, approximately 5,700 perished. Estimated Mortality of Wild Trout at the Bend Hydroelectric Project (1990) (on file with Oregon Department of Fish and Wildlife).

[FN80]. PacifiCorp Elec. Operations, 73 F.E.R.C. at P 62,136. Section 18 of the FPA provides the Secretary of the Interior the authority to prescribe fishways. 16 U.S.C. § 811 (1994). The regulations issued by FERC in 1991 defined “fishways” as facilities to allow for the upstream and downstream passage of anadromous fish. 18 C.F.R. § 4.30(b)(9)(iii) (1991). Resident fish, such as trout, were excluded from the mandatory section 18 prescriptions. Id. In May of 1991, FERC expanded the definition of “fishway” to allow the Secretary of the Interior to prescribe fishways for any type of fish. 56 Fed. Reg. 23,108, 23,116 (May 20, 1991). However, FERC overruled this order later that year, limiting the Secretary’s authority to prescribe fishways to cases where “passage of a population is necessary for the life cycle of a fish species.” 56 Fed. Reg. 61,137, 61,142 (Dec. 2, 1991) (codified at 18 C.F.R. pts. 4 and 16 (1991)). Commissioner Elizabeth Moler dissented from the Commission’s amended order, arguing that this limitation trespassed on the Department of the Interior’s statutory responsibility to determine when to require fishways. Id. at 61,158. Commissioner Moler reasoned that the decision to prescribe fishways necessarily includes a determination of which type of fish are to be protected. Id. Congress agreed with Commissioner Moler and vacated FERC’s 1991 definition of “fishway” in the Energy Policy Act of 1992, requiring any new definition to be concurred in by the Secretaries of Commerce and Interior. Pub. L. No. 102- 486, § 1701(b), 106 Stat. 3008 (1992) (codified at 16 U.S.C. § 811 (1994)).

[FN81]. PacifiCorp Elec. Operations, 73 F.E.R.C. at P 62,137.

[FN82]. Id. at P 62,143.

[FN83]. Id. Section 3(8) of the FPA defines “navigable waters” as:

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…after investigation under its authority ….

16 U.S.C. § 796(8) (1994). The U.S. Department of the Interior, as well as several conservation groups, took issue with the Commission’s navigability finding in the Bend case. PacifiCorp Elec. Operations, 73 F.E.R.C. at P 62,139. There are licensed projects on navigable portions of the Deschutes River both upriver and downriver of the Bend Project (Central Oregon Irrigation District’s 5.5 MW Central Oregon Siphon Power Project, Project No. 3571, is located approximately three river miles upstream from the Bend Project and the Pelton-Round Butte Hydroelectric Project, Project No. 2030, is located approximately fifty-eight river miles downstream from the Bend Project). This suggests that the Deschutes River, as a whole, should be considered navigable under the broad FPA definition of navigability which allows navigable rivers to include interruptions in navigability due to falls, rapids or other barriers. See, e.g., United States v. Appalachian Elec. Power Co., 311U.S. 377, 382-83 (1940) (finding that since the river was navigable below and above the rapids and falls in the vicinity of the project, the rapids and falls themselves were navigable waters). However, FERC ruled that the twenty mile reach of whitewater near the Bend Project was too far to be considered a “mere interruption” in navigability as defined by the Act, and to rough to be considered navigable. PacifiCorp Elec. Operations, 74 F.E.R.C. at P 61,871. FERC’s most recent interpretation of FPA navigability requires an average recreational canoeist to be able to negotiate the entire river. Pennsylvania Elec. Co.,56 F.E.R.C. P 61,435, 62,549 (1991).

[FN84]. The Oregon Department Fish and Wildlife (ODF&W) is the primary agency responsible for regulating resident fish in Oregon, such as the wild rainbow trout inhabiting the Deschutes River near the Bend Project. ODF&W played a major role in the FERC proceeding advocating for fish passage facilities. Under the FPA, the agency had no power to prescribe fishways because section 18 vested this responsibility in FERC, the Secretary of the Interior, and the Secretary of Commerce. 16 U.S.C. § 811 (1994); see also supra note 80 (reviewing history of fishway definition). Now that FERC has relinquished federal control over the project, ODF&W can prescribe fish passage facilities pursuant to Or. Rev. Stat. § 498.351. Or. Rev. Stat. § 498.351 requires all dams in waters in which game fish exist to have a state approved fish passageway. However, the agency appears not to want to use this provision to force PacifiCorp to build a fishway, preferring to work cooperatively with the company. The project currently has a “power claim” under Or. Rev. Stat. § 543.050 which allows it to operate indefinitely without a fixed term license. Or. Rev. Stat. § 543.050 allows the Oregon Water Resources Commission to authorize operation of private projects that were built before the Oregon licensing requirement.

[FN85]. See PacifiCorp Elec. Operations, 74 F.E.R.C. at P 61,872.

[FN86]. Id.

[FN87]. 16 U.S.C. § 797(e) (1994).

[FN88]. See supra text accompanying notes 36-48.

[FN89]. PacifiCorp Elec. Operations, Project No. 2643, 73 F.E.R.C. P 61,365, 62,136 n.2 (1995). The following parties intervened in the licensing proceeding: Coalition for the Deschutes, Oregon Department of Fish and Wildlife, American Rivers, Pacific Rivers Council, Oregon Trout, Trout Unlimited, Bend Metro Park and Recreation District, City of Bend, Deschutes County, and the Department of the Interior. Id.

[FN90]. See PacifiCorp Elec. Operations, Project No. 2643, 74 F.E.R.C. P 61,262, 61,873 (1996).

[FN91]. See supra text accompanying note 41.

[FN92]. See supra text accompanying note 56-58.

[FN93]. See supra notes 5, 35.

Copyright © 1997 Environmental Law; Max J. Mizejewski