[Federal Register Volume 62, Number 32 (Tuesday, February 18, 1997)]
[Notices]
[Page 7224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3858]


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DEPARTMENT OF ENERGY
[Project No. 2082-013]


PacifiCorp; Notice Establishing Comment Period For Petition for 
Declaratory Order

February 11, 1997.
    On December 3, 1996, PacifiCorp filed a petition for declaratory 
order, pursuant to Rule 207 of the Commission's regulations, 18 CFR 
385.207, to remove uncertainty and resolve a dispute involving the 
scope of a minimum flow requirement under its license for the Klamath 
Project No. 2082. The petition's statements in support of the relief 
requested are summarized in this notice.
    The Klamath Project consists of six hydroelectric developments 
located on the Klamath River and one on a tributary of that river, Fall 
Creek, in Oregon and California. Under contract with the U.S. 
Department of the Interior's Bureau of Reclamation (Bureau), PacifiCorp 
also operates the Bureau's Link River Dam, located on Upper Klamath 
Lake in Oregon, which is the source of the water used to generate power 
at the six Klamath River developments. Water behind the Link River Dam 
is also used for irrigation in the Klamath Basin, and the contract 
requires PacifiCorp to make water available to the Bureau for 
irrigation purposes.
    In 1954, the Commission determined that the project was required to 
be licensed under the Federal Power Act. In 1961, the Commission 
amended the project license to require PacifiCorp to release into the 
streambed below Iron Gate Dam, the development furthest downstream, a 
minimum flow of 1300 cubic feet per second (cfs) of water from 
September 1 through April 30 of each year. PacifiCorp claims that, to 
meet that requirement, it must release sufficient water from Upper 
Klamath Lake through the Link River Dam.
    PacifiCorp states that, in recent years, pressure has been 
increasing to ensure the availability of water both for species of fish 
living in Upper Klamath Lake that have been listed as endangered under 
the Endangered Species Act and for anadromous fish species downstream 
of Iron Gate Dam that have been proposed to be listed under that act. 
In addition, the State of California Department of Fish and Game has 
requested that above-normal flows be provided downstream of Iron Gate 
Dam at various times of the year to enhance the habitat for anadromous 
fish downstream of that development, and the Bureau has been 
coordinating its responsibilities regarding such releases with 
California Fish and Game, the U.S. Department of Commerce's National 
Marine Fisheries Service, the U.S. Department of the Interior's Fish 
and Wildlife Service (FWS), affected Indian tribes, irrigators, and 
PacifiCorp.
    During the 1995-96 irrigation season, irrigators in the Klamath 
Basin requested that the Bureau and PacifiCorp not release more than 
1000 cfs from the Link River Dam after September 1, 1996, to assure the 
refill of Upper Klamath Lake during the winter of 1996-97. FWS and the 
Bureau instructed PacifiCorp not to release more than 1000 cfs from the 
Link River Dam into early September 1996. When PacifiCorp, upon 
direction from the Bureau, began releasing 1300 cfs from behind Link 
River Dam on approximately September 4, several irrigators, alleging 
third-party beneficiary rights under the contract, threatened 
litigation against PacifiCorp.
    PacifiCorp states that the position and threats of the irrigators 
cause uncertainty regarding its rights and obligations under its 
license, specifically, its obligation to provide minimum flows 
downstream of the Iron Gate development. PacifiCorp requests issuance 
of a declaratory order removing the uncertainty regarding the nature 
and scope of this obligation and the related issue of compliance with 
the requests and directives of the FWS and the Bureau regarding 
PacifiCorp's operations of the Link River Dam. PacifiCorp requests a 
determination as to whether it must continue to release at least 1300 
cfs from the Iron Gate and Link River Dams under the circumstances 
presented. It seeks a declaratory order on these issues for the purpose 
of clarifying any subsequent analysis regarding preemption of a state 
breach of contract action by federal regulation.
    Pursuant to Rule 213(d) of the Commission's regulations, 18 CFR 
385.213(d)(2), answers to petitions are due within 30 days after 
filing, unless otherwise ordered. To ensure adequate notice to all 
interested persons, the Commission staff has determined that notice of 
the petition for a declaratory order should be published and that the 
deadline for filing an answer, comments, protests, or petitions to 
intervene in connection with the licensee's petition for a declaratory 
order should be as established in this notice.
    Any person may file an answer, comments, a protest, or a motion to 
intervene with respect to PacifiCorp's petition in accordance with the 
requirements of the Rules and Practice and Procedure, 18 CFR 385.210, 
385.211, 385.213, and 385.214. In determining the appropriate action to 
take with respect to the petition, the Commission will consider all 
protests or other comments filed, but only those who file a motion to 
intervene in accordance with the Commission's Rules may become a party 
to the proceeding. Any answers, comments, protests, or motions to 
intervene must be filed by March 20, 1997; and must bear in all capital 
letters the title ``ANSWER,'' ``COMMENTS,'' ``PROTEST'', or ``MOTION TO 
INTERVENE'', as applicable, and ``Project No. 2082-013.'' Send the 
filings (original and 14 copies) to: the Secretary, Federal Energy 
Regulatory Commission, 888 1st Street, N.E., Washington, D.C. 20426. A 
copy of any filing must also be served upon each representative of the 
licensee specified in its petition. Copies of the petition are on file 
with the Commission and are available for inspection in the Public 
Reference Room.
Lois D. Cashell,
Secretary.
[FR Doc. 97-3858 Filed 2-14-97; 8:45 am]
BILLING CODE 65717-01-M