[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