[Federal Register Volume 60, Number 145 (Friday, July 28, 1995)]
[Notices]
[Pages 38814-38815]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18538]
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DEPARTMENT OF ENERGY
[Project No. 2643-001]
PacifiCorp; Notice of Availability of Navigability Report for the
Deschutes River, Request for Comments, and Notice of Pending
Jurisdictional Inquiry
July 24, 1995.
PacifiCorp has filed an application for a subsequent license to
continue operating its Bend Hydroelectric Project No. 2643. The project
is located on the Deschutes River in the City of Bend, Deschutes
County, Oregon. As part of its review of PacifiCorp's relicense
application, the Commission staff is investigating the jurisdictional
status of the project and has prepared a navigability report for the
Deschutes River. The navigability report concludes that the Deschutes
River is not navigable in the vicinity of the Bend Project. If the
Commission accepts the staff's conclusions regarding navigability, the
likely outcome will be a Commission determination that the project is
not required to be licensed pursuant to Section 23(b)(1) of the Federal
Power Act (FPA). Because this determination may affect the resolution
of matters at issue in the relicensing proceeding, all parties and
interested persons are being given notice of the pending jurisdictional
inquiry and an opportunity to comment on the navigability report.
Comments may be filed no later than September 29, 1995.
Jurisdiction
The Commission recently explained its licensing jurisdiction as
follows: \1\
\1\ Swanton Village, Vermont, 70 FERC para. 61,325 at pp.
61,992-93 (1995) (citations omitted). See Cooley v. FERC, 843 F.2d
1464, 1471 (D.C. Cir. 1988), cert. denied, 109 S.Ct. 327 (1988).
Under the FPA, the Commission has two types of licensing
jurisdiction: permissive and mandatory. Permissive licensing is
authorized rather than required, and is governed by Section 4(e) of
the FPA. Mandatory licensing is governed by Section 23(b)(1) of the
FPA, which prohibits the unlicensed construction and operation of
certain hydroelectric projects. Thus, it is possible for a voluntary
applicant to obtain a license under Section 4(e) of the FPA for a
project that would not require a license under Section 23(b)(1).
Under Section 23(b)(1) of the FPA, a license is required for a
hydroelectric project if it: (1) is located on ``navigable waters of
the United States'' ; (2) occupies lands or reservations of the
United States; (3) uses the surplus water or water power from a
government dam; or (4) is located on a non-navigable Commerce Clause
stream, affects the interests of interstate or foreign commerce, and
has undergone construction or major modification after August 26,
1935.\2\ If those conditions are not met, Section 4(e) of the FPA
would permit licensing of a hydroelectric project in response to a
voluntary application if the project is located on a Commerce Clause
water.
\2\ See Farmington River Power Co. v. Federal Power Commission,
455 F.2d 86 (2d Cir. 1972).
The Commission staff has determined that the Bend Hydroelectric
Project would not be located on federal lands or make use of a
government dam. Therefore, whether licensing is required depends on
whether conditions (1) or (4) above are met.
Regarding (4) above, the Commission staff has concluded that the
Bend Hydroelectric Project is located on a non-navigable Commerce
Clause stream within the meaning of Section 23(b)(1) of the FPA.\3\
Because the Bend Project generates power for the interstate electric
grid, the project affects the interests of interstate commerce within
the meaning of Section 23(b)(1).\4\ However, the project was
constructed in 1913, and the Commission staff has found no evidence of
any significant construction or major modification of the project after
1935.
\3\ The Deschutes River flows into the navigable Columbia River.
It is well-settled that Commerce Clause streams include the
headwaters and tributaries of navigable rivers. See 70 FERC para.
61,325 at p. 61,994.
\4\ See Federal Power Commission v. Union Electric Co. (``Taum
Sauk''), 381 U.S. 90, 97 (1965).
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Navigability
In these circumstances, whether licensing is required depends on
whether the Bend Hydroelectric Project is located on a ``navigable
river of the United States.'' The staff's navigability report concludes
that the Deschutes River is not navigable in the vicinity of the Bend
Hydroelectric Project. It finds that, although portions of the
Deschutes River are used by recreational boaters, especially white
water rafters, both above and below the project site, the river is not
navigable in the vicinity of
[[Page 38815]]
the project. Popular areas for recreational boating include the upper
Deschutes River, from Wickiup Dam to the area north of Bend, and the
lower Deschutes River from Pelton Dam to the Columbia River. However,
there are large sections of the river that are not used by rafters and
boaters, including a section of about 32 river miles in the vicinity of
the Bend Project, because of low water caused by irrigation projects,
dangers rapids and falls, and dams. The staff's navigability report
finds no evidence that the Deschutes River, from the project site to
the Columbia River, was ever used or suitable for use for the
transportation of persons or property in interstate or foreign
commerce.
Comments are invited on the staff's navigability report. If the
Commission accepts the staff's conclusions regarding navigability, the
likely outcome will be a Commission determination that the Bend
Hydroelectric Project is not required to be licensed under Section
23(b)(1) of the FPA.
Implications for Relicensing
As explained in the staff's draft Environmental Assessment (EA),
the Bend Hydroelectric Project has negative economic benefits under any
proposed operating scenario. Moreover, because of the high cost of
prescribed fishway facilities, the costs of operating the project under
a subsequent Commission license greatly exceed the costs of
decommissioning the project. The Commission staff is completing its
environmental review of the relicensing proposal and alternatives, and
expects to issue a final EA in the near future.
In recent correspondence with the Commission staff, PacifiCorp has
stated that, if the Commission issues a subsequent license that
includes mandatory fishways and other agency recommendations for fish
and wildlife, the project will be uneconomic to operate. The license
has further stated: ``PacifiCorp is not likely to accept a new license
proffered by the Commission for the Bend Project if such conditions are
included.'' \5\
\5\ Letter from S.A. DeSousa, PacifiCorp, to John H. Clements,
FERC, dated April 18, 1995.
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If licensing is requiring under Section 23(b)(1) of the FPA, a
hydroelectric license may not continue to operate its project without a
license.\6\ If licensing is not required, however, a hydroelectric
licensee may, following expiration of its original license, either
withdraw its relicense application or reject a new or subsequent
license and continue to operate the project without a license under the
FPA, subject only to whatever other federal, state, or local laws may
be applicable.\7\
\6\ See 381 U.S. at 98 n. 10.
\7\ See Pennsylvania Electric Co., 56 FERC para. 61,435 (1991)
(hydroelectric licensee with a voluntary license under Section 4(e)
of the FPA need not file a relicense application and may continue
operating without a license following expiration of the original
license).
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This suggests that the State of Oregon may ultimately be
responsible for determining whether the Bend Project should continue to
operate or should be decommissioned. Similarly, Oregon may ultimately
be responsible for determining what conditions should be required,
either for continued operation or for decommissioning. To ensure that
state officials and all parties to the relicensing proceeding have
advance notice of this possibility and of the preliminary navigability
finding on which it is based, interested persons are being given notice
of the pending jurisdictional inquiry and an opportunity to comment on
the staff's navigability report.
Concurrent with publication of this notice, all persons whose names
appear on the official service list for the Bend relicensing proceeding
will receive a copy of the navigability report. Additional copies are
available for review in the Public Reference Branch, Room 3104, of the
Commission's offices at 941 North Capitol Street, N.E., Washington,
D.C. 20426.
Comments on the navigability report should be filed with Lois D.
Cashell, Secretary, Federal Energy Regulatory Commission, 825 N.
Capitol St., N.E., Washington, D.C. 20426. Comments should be filed by
September 29, 1995, and should reference Project No. 2643-001. For
further information, please contact Linda S. Gilbert at (202) 208-5759.
Lois D. Cashell,
Secretary.
[FR Doc. 95-18538 Filed 7-27-95; 8:45 am]
BILLING CODE 6717-01-M