[Federal Register Volume 59, Number 224 (Tuesday, November 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28737]


[[Page Unknown]]

[Federal Register: November 22, 1994]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

 

Section 4(e) Conditions for the Kerr Hydroelectric Project; 
Montana

AGENCY: Department of the Interior.

ACTION: Notice of Availability; Request for Comment.

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SUMMARY: The Department of the Interior, in compliance with the terms 
of the Kerr Hydroelectric Project license, The Montana Power Company, 
32 FERC 61,070 (1985), announces the availability of its proposed 
Section 4(e) conditions for public review and comment. Pursuant to the 
Federal Power Act, 16 U.S.C. 797(e), the proposed conditions provide 
for the adequate protection and utilization of the Flathead Indian 
Reservation and the Fish and Wildlife Service administered Flathead 
Waterfowl Production Area.

DATES: Written comments regarding the Secretary's proposed Section 4(e) 
conditions will be accepted until close of business on or before 
December 22, 1994. All comments received will be considered in the 
preparation of the Secretary's final Section 4(e) conditions for the 
Kerr Hydroelectric Project.

ADDRESSES: Comments should be sent to Anne Crichton, Department of the 
Interior, Office of the Solicitor, 1849 C Street, NW., Mail Stop 6456, 
Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT:
Janice Schneider, Department of the Interior, Office of the Solicitor, 
1849 C Street, NW., Mail Stop 6456, Washington, DC 20240, 202-208-6967.

SUPPLEMENTARY INFORMATION: The Kerr Hydroelectric Project (``Project'') 
is located on the Flathead Indian Reservation, and in Flathead and Lake 
Counties, in northwestern Montana. The Kerr Dam and portions of the 
project works, including approximately one half of the Project's 
reservoir, are located within the exterior boundary of the Flathead 
Indian Reservation. The north half of the Project's reservoir is 
located in Flathead and Lake Counties. At the north shore of Flathead 
Lake, a portion of the Project is located within the Flathead Waterfowl 
Production Area, which is owned and administered by the Fish and 
Wildlife Service as part of the National Wildlife Refuge System.
    On July 17, 1985, as the result of a negotiated settlement, the 
Federal Energy Regulatory Commission (``Commission'') issued a new 50-
year operating license for the Kerr Project, jointly to the Montana 
Power Company and the Confederated Salish and Kootenai Tribes as co-
licensees. The Montana Power Company, 32 FERC 61,070 (1985). The 
specific terms of the license provide, inter alia, that

    [T]he Secretary [of the Interior] shall be allowed * * * to 
impose such reasonable license conditions with respect to fish [and 
wildlife] and related environmental concerns as the Secretary would 
be empowered under Section 4(e) [of the Federal Power Act] to 
require * * *.\1\
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    \1\Section 4(e) of the Federal Power Act (FPA) authorizes the 
Commission to issue licenses for hydroelectric projects ``upon any 
part of the public lands and reservations of the United States.'' 
FPA Section 4(e), 16 U.S.C. 797(e) (1988 & Supp. 1992). Such 
licenses ``shall be subject to and contain such conditions as the 
Secretary of the department under whose supervision such reservation 
falls shall deem necessary for the adequate protection and 
utilization of such reservation.'' Id. (emphasis added). The 
mandatory language of Section 4(e) requires the Commission to 
accept, without modification, Secretarial conditions reasonably 
related to the protection and adequate utilization of the 
reservation and its purposes, and which are supported by substantial 
evidence. See Escondido Mutual Water Co. v. La Jolla Band of Mission 
Indians, 466 U.S. 765, 777, n. 18, 778 (1983).

Articles 45(b) and 46(c).
    The Kerr Project license requires that the Secretary provide for 
``notice and opportunity for hearing'' in the formulation of the 
Sec. 4(e) conditions for the Kerr Project. Id. Consistent with the 
terms of the Kerr Project license, the Secretary is providing 
interested parties with notice and an opportunity to comment on the 
proposed Section 4(e) conditions.
    The proposed conditions for the Flathead Indian Reservation provide 
for the imposition of a base load operational scenario at the Kerr 
Project. This operational scenario precludes the use of Kerr Dam as a 
load regulating or peak power generation facility, and requires minimum 
flows, certain restrictions on flow fluctuations (ramping rates), and a 
two year ramping rate study. In addition, the proposed conditions 
provide for non-operational measures designed to protect and provide 
for adequate utilization of the Flathead Indian Reservation in 
conjunction with operational measures. The non-operational measures 
include the development of a Fish and Wildlife Implementation Strategy, 
development of an operational rule curve, habitat acquisition, habitat 
development, fishery supplementation and reintroduction, development of 
recreational resources, and the identification and protection of 
cultural resources on the Flathead Indian Reservation. The proposed 
conditions for the Flathead WPA provide for the imposition of erosion 
control on the north shore of Flathead Lake and the upper Flathead 
River, island restoration, and habitat acquisition and development. The 
costs of all measures will be borne by the project licensees.
    The proposed conditions are available for review at the Department 
of the Interior, 1849 C Street, NW., Washington, DC in room 6443. 
Copies of the proposed Section 4(e) conditions are being sent to all 
individuals, agencies and organizations on the Commission's service 
list for the Kerr Project, and to those who have otherwise requested to 
be included on the Secretary's Kerr Project Section 4(e) mailing list. 
The document will be mailed to all interested parties requesting 
copies. The Secretary's final conditions will be informed by evidence 
and comments submitted within 30 days of the date of publication of 
this notice.

    Dated: November 16, 1994.
Willie R. Taylor,
Acting Director, Office of Environmental Policy and Compliance.
[FR Doc. 94-28737 Filed 11-21-94; 8:45 am]
BILLING CODE 4310-02-M