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UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION
) Rivertec Partners LLC ) Project No. 14753-000 ) )
REQUEST FOR REHEARING OF ORDER DISMISSING PRELIMINARY PERMIT APPLICATION
INTRODUCTION
1. Pursuant to Rule 713 of the Federal Energy Regulatory Commission’s (“FERC” or the
“Commission”) Rules of Practice and Procedure, Rivertec Partners LLC (“Rivertec”)
hereby requests a rehearing of the Order Dismissing Preliminary Permit Application (the
“Order”) issued September 2, 2016 in this matter 156 FERC ¶ 62,161 for the
Clearwater Hydroelectric Project, Project No. 14753 (the “CHP”).
2. There are five Statements of Issue in this Request for Rehearing;
a. Statement of Issue – Commission Jurisdiction Over CHP
b. Statement of Issue – Corps Opposition to CHP
c. Statement of Issue – Denial of Permit Because of Corps Opposition
d. Statement of Issue – Operational Issues Related to Water
e. Statement of Issue – Preliminary Permit is Discretionary by the Commission
3. In order to assist the Commission in this Request for Rehearing, Rivertec has included
Background and History sections before the Statements of Issue and legal argument.
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These sections were also included to assist the Corps (defined herein) in its review of
the proposed CHP.
4. The Commission’s September 2, 2016 order dismissed Rivertec’s application for
preliminary permit for the Clearwater Hydroelectric Project, Project No. 14754, to
develop hydropower at the U.S. Army Corps of Engineer’s (“Corps” or “USACE”)
because the Corps, which owns the Dworshak Dam facility and whose permission
would be needed for the development of any project at that facility, has stated that it
opposes the project, therefore the Commission determined that there is no purpose in
issuing a preliminary permit.1
5. In making the Order, the Commission states that in recent decisions it has denied
preliminary permits for projects at federal facilities after the federal entities indicated
that no purpose would be served in issuing a permit because the federal entity would
not approve modifications to its federal facilities. In Owyhee Hydro, LLC, 2 the
Commission denied a preliminary permit because the U.S. Bureau of Reclamation stated
that a non-federal entity’s proposed use of its federal facility was unacceptable and
would not be permitted.3 Similarly, in Advanced Hydropower, Inc.,4 the Commission
1 “However, we [the Commission] note that Commission staff maintains its position that the Commission has jurisdiction over non-federal hydropower development at the three vacant bays in the powerhouse.” 156 FERC ¶ 62,161 (2016) 2 154 FERC ¶ 61,210 (2016). 3 Id. at PP 22-25. 4 155 FERC ¶ 61,007 (2016).
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denied a preliminary permit for a project at McNary Dam because the Corps opposed
the project.5
6. Rivertec respectfully disagrees and submits this request for rehearing to clarify the
factual and legal basis for addressing these issues and to assist in the Commission’s
affirmation that the aforementioned referenced rulings are not controlling and that the
Corps objections are an abuse of process and meant to circumvent the Commissions
jurisdiction to issue a preliminary permit or license for the Clearwater Hydroelectric
Project, and that the Commission should issue a preliminary permit to Rivertec for the
aforementioned CHP.
7. This Request for Rehearing does address jurisdiction and Rivertec strongly supports
“However, we [the Commission] note that Commission staff maintains its position that
the Commission has jurisdiction over non-federal hydropower development at the
three vacant bays in the powerhouse.” Rivertec has provided arguments in favor of the
Commission’s jurisdiction in this matter in previous submissions to the Commission in
this matter. Jurisdiction is included despite not being a reason for dismissing the
preliminary permit application because the Corps continues to dispute jurisdiction in
this matter.
8. In Rivertec’s August 7, 2016 letter to the Commission, in response to a July 18, 2016
letter from the Corps to the Commission, Rivertec raised a number of issues related to
the Corps policy and Congressional law. This letter was also addressed to LTG Todd T.
Semonite, Chief of Engineers & Commanding General of the U.S. Army Corps of
5 Id. at 10.
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Engineers because of these important issues. In a response letter dated August 22,
2016, LTG Todd T. Semonite wrote, “The Northwestern Division Commander, Brigadier
General (BG) Scott Spellmon has the authority and the ability to provide assistance in
this matter.” BG Spellmon is currently reviewing the proposed CHP. Rivertec would ask
that the Commission not make a final ruling on the Request for Rehearing until such
time as the Corps has completed their review.
BACKGROUND
9. The CHP will be located in the skeleton bay at Dworshak Dam (located adjacent to the
existing powerhouse), which is a USACE project. The CHP will utilize existing civil
works. Essentially the CHP will be the fourth unit at Dworshak Dam, adjacent to but
separate from the existing powerhouse. There is already constructed penstock(s) and
the CHP will only require minimal civil construction.
10. Dworshak Dam construction began on July 20, 1966 and became operational for flood
control in June 1972. Power came online March 1973. Three power-generating units are
in service and operated by the USACE. Units 1 and 2 are rated at 90,000 kilowatts each
and Unit 3 is rated at 220,000 Kilowatts. Originally the Dworshak Dam was to contain
six units.
11. During initial construction a skeleton bay was constructed for three future 220,000-
kilowatt units. Units 5 and 6 were de-authorized in 1990 (Federal Register, October 5,
1990 page 40907). Unit 4 was de-authorized on July 9, 1995 under section 1001(B)(2),
P.L. 99-662.
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12. The CHP will utilize the civil works originally planned for unit 4 (although it could use
one or more location(s) originally planned for units 4, 5 and/or 6: to be determined a
part of a feasibility study). The existing 19-ft penstock ends a short distance outside a
concrete surround at the base of the dam. The bottom of the penstock is approximately
20 ft. above the rock floor of the skeleton bay. The existing skeleton bay consists of the
downstream wall of the substructure and associated internal galleries, and external fish
bypass passageways.
13. The principal components of the CHP are an extension of the existing penstock(s), a
Francis-type turbine-generator unit, first and second-stage substructure concrete,
electrical switchgear, bus and transformer, ancillary electrical and mechanical
equipment, and a steel or concrete superstructure.
HISTORY OF DWORSHAK DAM
14. The Dworshak Dam and Reservoir are located on the North Fork Clearwater River in
Clearwater in Clearwater County, Idaho. The Corps constructed the Dworshak Dam and
Reservoir and the associated hydroelectric power plant pursuant to Congressional
authorization contained in the Flood Control Acts of 1958 and 1962. Pub L. No. 85-500,
tit. 2, 72 Stat. 297, 315 (1958); Pub. L. No. 87-874, tit. 2, 76 Stat. 1173, 1193 (1962).
15. Dworshak Dam construction began on July 20, 1966 and became operational for flood
control in June 1972. Power came online March 1973. Three power-generating units are
in service and operated by the USACE. Units 1 and 2 are rated at 90,000 kilowatts each
and Unit 3 is rated at 220,000 Kilowatts. Originally the Dworshak Dam was to contain
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six units. The Dworshak Dam is a straight concrete gravity dam with a structural height
of 717 feet, and a crest length of 3287 feet at elevation 1613 feet above sea level.
16. During initial construction a skeleton bay was constructed for three future 220 MW
units. The planned expansion never occurred and in fact was deauthorized by
Congress.
Units 5 and 6 were de-authorized in 1990 (Federal Register, October 5, 1990 page 40907). Unit 4 was de-authorized on July 9, 1995 under section 1001(B)(2), P.L. 99-662.6
17. On November 12, 1996, Utah Associated Municipal Power Systems (“UAMPS”) filed an
application for preliminary permit under 4(f) of the Federal Power Act (the “Act”) for
the proposed Dworshak Skeleton Bay Hydroelectric Project (“DSBHP”), Project No.
11594. In a letter dated April 2, 1997, the Department of Army, North Pacific Division,
Corps of Engineers wrote a letter to the Commission that states inter alia,
“We do not object to the request by Utah Associated Municipal Power Systems for a preliminary permit for FERC Project No. 115947” [emphasis added]
18. On April 24, 1997, the Acting Director, Office of Hydropower Licensing, issued a
preliminary permit to UAMPS to study the feasibility of a project proposed to be located
at the Corps’ existing dam, on the North Fork Clearwater River, in Clearwater County,
6 Unit 4 has been deauthorized for development by Congress 61 Fed. Reg. 66,654, 66,655 (December 18, 1996) (Notice of Project Deauthorizations) 7 Letter from John E. Velehradsky, Director of Engineering & Technical Services, Department of Army, North Pacific Division, Corps of Engineers addressed to Mrs. Lois Cashell, Secretary, Federal Energy Regulatory Commission, dated April 2, 1997 and received April 7, 1997. Available at FERC elibrary.
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Idaho8. In a letter dated June 30, 1997, Bonneville Power Administration (“BPA”) filed a
Motion in Protest of UAMPS Application for Preliminary Permit, Project No. 11594-000
arguing that the Commission lacked jurisdiction to license the project. Despite this
motion being far outside of permitted comment period, UAMPS filed a response.9 On
August 18, 1997, the Commission filed “Notice Rejecting Request for Rehearing” denying
BPA’s motion. On March 31, 2000 UAMPS filed its sixth period progress report noting
that its preliminary permit will soon expire and that UAMPS did not intend to file a
license application In its report UAMPS noted inter alia
“UAMPS has been unable to reach an agreement with the Corps and Bonneville Power Administration (“BPA”) regarding the financing and operation of the Project. As UAMPS has previously explained in previous periodic reports, it does not appear to UAMPS that BPA has the legal authority to block the Project. BPA, however, has taken the position that it does have that authority and has now made clear it unequivocal opposition to UAMPS’ Project. For its part, the Corps has been unwilling to proceed in the face of BPA’s opposition.” … “BPA is unilaterally opposed to non- federal development of the Project10” [emphasis added]
19. UAMPS experience with the DSBHP is important because:
a. DSBHP was virtually the same project as the proposed CHP project including
the same physical location, therefore it is an analogous project to the CHP,
and it was granted a preliminary permit, and
8 79 FERC ¶ 62,057 (April 24, 1997) 9 Motion for Leave to Respond to the Bonneville Power Administration’s “Protest” and Implicit Motion to Withdraw UAMPS’ Preliminary Permit, dated July 16, 1997 by Dana J. Martin, counsel to UAMPS. See FERC elibrary. 10 Utah Associated Municipal Power Systems, Dworshak Skeleton Bay Hydroelectric Project, FERC Project No. 11594-000, Sixth Period Progress Report, Filed March 31, 2000. See FERC elibrary.
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b. The Corps not object to granting of a preliminary permit for UAMPS and in
fact were supportive of it.
STATEMENT OF ISSUE - COMMISSION JURISDICTION OVER CHP
20. In a letter dated April 6, 2016 to the Commission, the Corps LTC Timothy Vail, District
Commander wrote, “We have reviewed the applicable laws and authorities, and our
conclusion is that the Commission does not have jurisdiction to issue a permit for a non-
federal project at this site. Granting a non-federal hydropower development
preliminary permit or future license in this case would interfere and be inconsistent
with the federal purposes of the Project.” As part of the Corps argument, it states
“Notwithstanding deauthorization … the Corps and Bonneville Power Administration
(BPA) have authority to explore and develop (if warranted) additional hydropower
capacity at the Project.” It based this authority on “The Corps concluded that the
installation of Generation Unit 4 may be authorized under section 2406 [16 U.S.C. 839d-
1], notwithstanding the previous Deauthorization under Section 1001, if the addition is
determined to be “necessary or appropriate.”” concluding that a preliminary permit for
the CHP would be inconsistent with the federal purposes of the Project.
21. The Commission has recognized that Sections 4(e) and 4(f) of the Federal Power Act
give it “authority to issue preliminary permits and licenses for hydroelectric projects
located at federal dams and facilities” but that authority is withdrawn “if the
hydroelectric project is authorized by Congress for federal development, or if Congress
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has otherwise unambiguously withdrawn Commission jurisdiction over the project. 11”
Idaho Water Resource Board 56 FERC ¶ 61,127, 61,480-81 (1991). The Commission has,
on at least three prior occasions, granted preliminary permits to non-federal entities
like Rivertec that were seeking to develop a hydroelectric project at Dworshak Dam,
concluding that its authority to issue permits had not been withdrawn. Idaho Water
Resource Board, 56 FERC ¶ 61,127 at 61,483, rehearing denied, 61 FERC ¶ 61,106
(1992); City of Orofino, Idaho, 38 FERC ¶ 62,068 (1987).12 In issuing the preliminary
permit in Idaho Water and denying rehearing in that proceeding, the Commission, in
response to arguments raised by BPA therein, thoroughly considered the question of it
jurisdiction to issue a preliminary permit to non-federal entities for hydroelectric
development at Dworshak, and concluded that it had such jurisdiction.
22. In Idaho Water, BPA moved to dismiss three competing preliminary permit applications
to study “the feasibility of a 25 megawatt (MW) hydroelectric project that would use
water from a 1.5-mile-long conduit under construction by the U.S. Army Corps of
Engineers.” 56 FERC ¶ 61,127 at 61,480. BPA contended that Congress had reserved the
Dworshak site “exclusively for federal development and thereby withdrawn the
Commission’s licensing and, consequently, permitting jurisdiction.” Id. BPA made two
arguments in support of it position (1) that Section 2(a) of the Bonneville Project Act,
16 U.S.C. § 832a(a), as applied to the Dworshak project through Section 8 of the Federal
Columbia River Transmission Act, 16 U.S.C. § 838(f), reserved the authority to develop a
11 See City of Gillette, Wyoming, 25 FERC ¶ 61,366 (1983) 12 The City of Orofino’s preliminary permit was cancelled because the City failed to submit the first semi-annual report required under the permit Idaho Water, 61 FERC ¶ 61,106 at 61,416, citing 48 FERC ¶ 62,248 (1989).
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power plant at Dworshak exclusively in BPA; and (2) that the Flood Control Acts of
1958 and 1962 authorized the Corps to develop the hydroelectric of the proposed
conduit, “thereby withdrawing the Commission’s licensing jurisdiction.” Id. at 61,481.
The Commission rejected both of these arguments. It found that the Bonneville Power
Act gave BPA the authority to market electricity by federal agencies at certain federal
power plants, but did not give BPA the exclusive authority to develop power
facilities at these sites. Id. The Commission also rejected the argument that the Flood
Control Acts of 1958 and 1962 divested it of authority to license non-federal
hydropower development at Dworshak Dam, based upon scrutinization of the Flood
Control Acts and House Document No. 403, which described the project being
authorized by the statutes. Id. at 61,482. The Commission found that “House Document
No. 403 shows no intent to reserve for exclusive federal development the entire
hydropower potential of the water at the Dworshak Reservoir.” Id. (footnote omitted).
In rejecting BPA’s request for a rehearing, the Commission considered additional
arguments BPA presented, and found “no basis for reversing our prior decision.” Idaho
Water, 61 FERC ¶ 61,106 at 61,417. Among other things, the Commission rejected
BPA’s argument that non-federal development at Dworshak threatened the operation of
the Federal Columbia River Power System as one integrated system, because BPA had
“not demonstrated that the Dworshak Project cannot be conditioned so as to permit its
integrated operation with other projects that are part of the Columbia River Power
System.” Id. at 61,42013.
13 The Commission has adhered to the conclusions it reached in Idaho Water in a recent
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23. The fact that BPA may be thinking be thinking about developing its own power
development projects does not divest the Commission of jurisdiction over the project
proposed by Rivertec unless the “hydroelectric project is authorized by Congress for
federal development’ or “Congress has otherwise unambiguously withdrawn
Commission over the project.” Idaho Water. 56 FERC at 61,480-81. There has been no
such divestiture here. As the Commission has previously recognized, Congress did not
reserve the entire hydropower potential of the water at Dworshak Dam reservoir for
federal development. Id. at 61,482. In fact, Unit 4, skeleton bay that Rivertec proposes to
use for this project, was de-authorized for federal development by Congress in 1995.
61 Fed. Reg. 66,654, 66,655 (December 18, 1996) (Notice of Project Deauthorization).
Further, on April 24, 1997, the Acting Director, Office of Hydropower Licensing, issued a
preliminary permit14 to UAMPS to study the feasibility of a project proposed to be
located at the Corps’ existing dam, on the North Fork Clearwater River, in Clearwater
County, Idaho15 in the Unit 4, skeleton bay. In that instance, BPA also challenged the
Commissions jurisdiction to issue a preliminary permit and license, and this challenge
was also denied. Also in that instance, the Corps did not object to the Commissions
case in which BPA made very similar arguments in a challenging the Commission’s authority to issue a preliminary permit for a hydroelectric project at the Dalles Dam, also owned and operated by the Corps. Northern Wasco County People’s Util. Dist., 74 FERC ¶ 61,158 (1996). Once again, the Commission rejected BPA’s jurisdictional arguments, concluding that its “jurisdiction to issue permits and licenses for the development of a hydropower project at the Dalles Dam has not been withdrawn.” Id. at 61,557. 14 Dworshak Skeleton Bay Hydroelectric Project, Project No. 11594-000 15 79 FERC ¶ 62,057 (April 24, 1997)
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authority to issue preliminary permits16. Nothing has occurred since UAMPS obtained a
preliminary permit in 1997 such that the “hydroelectric project is authorized by
Congress for federal development’ or “Congress has otherwise unambiguously
withdrawn Commission over the project.” Idaho Water. 56 FERC at 61,480-81. There
has been no such divestiture here.
24. The Commission responded17 to the Corps’ letter in a response dated April 6, 2016 that
it did in fact have jurisdiction over the CHP stating as follows:
“Upon a preliminary review of the record, as well as the authorization history of the Dworshak Dam Project, we believe that the Commission retains jurisdiction to issue a preliminary permit for development at the three skeleton bays in the powerhouse at the Dworshak Dam. Congress has explicitly de-authorized development by the Corps at those skeleton bays,18 and, we do not believe the Corps could pursue development at those bays under Section 2406 of the Energy Policy Act of 1992 alone.19 Rather, we believe development by the Corps at those bays would require re- authorization by Congress and thus, development at the skeleton bays does not currently appear to be reserved to the federal government.20 “[emphasis added]
16 In a letter dated April 2, 1997, the Department of Army, North Pacific Division, Corps of Engineers wrote a letter to the Commission that states inter alia, “We do not object to the request by Utah Associated Municipal Power Systems for a preliminary permit for FERC Project No. 11594” 17 Letter from David Turner, Northwest Branch, Division of Hydropower Licensing, Federal Energy Regulatory Commission, to BG Scott A. Spellmon, Division Commander, Northwest Division U.S. Army Corps of Engineers, and Lt. Col Timothy, District Commander, Walla Walla district, May 31, 2016 18 61 Fed. Reg. 66,654 (1996); 55 Fed. Reg. 40,906 (1990). 19 16 U.S.C. § 839d-1 (2012). 20 See Northern Wasco County People’s Utility District, 74 FERC ¶ 61,158, at 61,557 (1996) (“The language of section 2406 is not meant to create exclusive federal authority to develop hydroelectric power at Corps projects in the Pacific Northwest. Rather, it clarifies that generation additions, improvements and replacement which will enable the Corps to fully use the power it is already authorized to develop need not await further appropriations but can be financed by the Bonneville Power Administration.”) (emphasis added).
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25. The Commission requested if the Corps did not agree with this determination, to please
provide additional supporting information they might have, and also wished to know if
Rivertec’s proposed project would interfere with existing dam operations or current
plans for the Dworshak Dam Project.21
26. The Corps’ response in a letter dated July 18, 2016 to the Commission completely
disregarded the factual basis of Section 2406 of the Energy Policy Act of 1992, and
reiterated that the Corps and BPA could pursue development of Dworshak Skeleton
bays (site of proposed CHP) under Section 2406. Again the Corps disregarded that
Congress deauthorized this development and the use of Section 2406 is limited to
authorized projects and does not give the Corps the ability to disregard the explicit laws
of Congress. The continued position of the Corps is without legal foundation and only
serves to burden non-federal hydropower developers such as Rivertec. In this instance
it is causing irreparable harm to Rivertec.
27. A key finding of the Commission is “Commission staff noted that Congress explicitly de-
authorized development by the Corps at the three vacant bays. 61 Fed. Reg. 66,654
(1996); 55 Fed. Reg. 40,906 (1990). Further, staff concluded that the Corps could not
pursue development at those bays under Section 2406 of the Energy Policy Act of 1992
21 Compare Advanced Hydropower, Inc., 155 FERC ¶ 61,007 (2016) (denying preliminary permit following Corps’ February 8, 2016 comments opposing the project), with Bitterroot Management Corporation, 82 FERC 62,035 (1998) (issuing preliminary permit following Corps’ December 8, 1997 comments that “[it] do[es] not object to the request by Bitterroot Management Corporation for a preliminary permit for FERC Project No. 11602.”). See also, Letter from Kevin J. Brice (Deputy District Engineer, Corps of Engineers) to David Turner (Chief, Northwest Branch, Division of Hydropower Licensing) Regarding Project No. 14752 (filed April 13, 2016) (noting that the Corps has no objections to the Commission issuing a preliminary permit for the project).
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alone. 16 U.S.C. § 839d-1 (2012).” This is important for argument later in this Request
for Rehearing. It is also an abuse of process for Corps to continue to take the position
that they can ignore the fact that Congress explicitly de-authorized development by the
Corps at the three vacant bays.
28. In its Order the Commission affirmed its jurisdiction “However, we [the Commission]
note that Commission staff maintains its position that the Commission has jurisdiction
over non-federal hydropower development at the three vacant bays in the
powerhouse.”
29. Continued disregard of the Corps that the Commission has jurisdiction and that the
skeleton bay is deauthorized by Congress is not only a waste of Commission resources
but also causes irreparable harm to Rivertec.
STATEMENT OF ISSUE – CORPS OPPOSITION TO CHP
30. In issuing its Order, the Commission stated that “Here, because the Corps, which owns
the Dworshak Dam facility and whose permission would be needed for the
development of any project at that facility, has stated that it opposes the project, there
is no purpose in issuing a preliminary permit.22 Therefore, Rivertec’s preliminary
permit application is denied.” There was no investigation by the Committee to verify
whether the Corps statement was valid or an abuse of process to circumvent the
Commission’s jurisdiction.
22 However, we note that Commission staff maintains its position that the Commission has jurisdiction over non-federal hydropower development at the three vacant bays in the powerhouse.
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31. The Corps had no objection in 1997 when Utah Associated Municipal Power Systems
filed for a preliminary permit for the DSBHP, Project No. 11594 which is essentially the
same projects that is proposed by Rivertec. In a letter dated April 2, 1997, the
Department of Army, North Pacific Division, Corps of Engineers wrote a letter to the
Commission that states inter alia,
“We do not object to the request by Utah Associated Municipal Power Systems for a preliminary permit for FERC Project No. 1159423”
32. As part of the Corps findings in this letter were the following:
a) It has been determined that the proposed project has no impacts on Corps
responsibilities regarding flood control or navigation.
b) The proposed unit would be required to operate in a manner that is
consistent with the Corps operation of Dworshak project for several
species of Snake River salmon that are listed as endangered under the
Endangered Species Act.
33. Therefore the Commission granted UAMPS a preliminary permit. It is hard to square
this with the Corps opposition to Rivertec obtaining a preliminary permit for the exact
same project at this time.
34. Even back in 1997, the UAMPS proposed project was consistent with the Corps long-
standing policy goal of obtaining non-federal funding for the development of
23 Letter from John E. Velehradsky, Director of Engineering & Technical Services, Department of Army, North Pacific Division, Corps of Engineers addressed to Mrs. Lois Cashell, Secretary, Federal Energy Regulatory Commission, dated April 2, 1997 and received April 7, 1997. Available at FERC elibrary.
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hydroelectric power at Corps project sites24. The UAMPS project was supported by
Gen. Robert Griffin, Commander, Northwestern Division, U.S. Army Corps of Engineers
in testimony to the Senate Appropriations Committee, Energy and Water
Appropriations Subcommittee.
35. The Commission wrote the Corps, in a letter dated February 25, 2016, enquiring
whether the Corps believed that a non-federal project under the jurisdiction of the
Commission is authorized at the site or in the alternative whether the proposed
hydroelectric development is reserved to the federal government. In the Corps
response25 to the Commission, the Corps stated that the Commission did not have
jurisdiction over the proposed project.
36. The letter further states that “Congress has authorized additional federal hydropower
at the Project and there is ongoing federal interest in exploring/developing the same.
The issuance or a preliminary permit or license for non-federal hydropower
development would interfere and be inconsistent with the federal purposes of the
Project.” These statements are simply untrue and even more to the point; the Corps
knows that this is a false statement. Congress has explicitly de-authorized development
24 See Testimony of Robert Griffin, Commander, Northwestern Division, U.S. Army Corps of Engineers, to Senate Appropriations Committee, Energy and Water Appropriations Subcommittee (April 15, 1997) (LEXIS, Legis. Library, Cngtst. File) (noting that “[a]ll costs associated with the development of hydroelectric power at the site of a Corps project are borne, one way or another, by non-Federal sponsors” and reporting to the Senate Energy and Water Appropriations Subcommittee on the status of UAMPS’ proposed project at Dworshak). 25 Letter to David Turner, FERC, by LTC Timothy Vail, Corps of Engineers, dated April 6, 2016
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by the Corps at those skeleton bays,26 In fact, Unit 4, skeleton bay that Rivertec
proposes to use for this project, was de-authorized for federal development by Congress
in 1995. 61 Fed. Reg. 66,654, 66,655 (December 18, 1996) (Notice of Project
Deauthorization). Units 5 and 6 were de-authorized in 1990 (Federal Register, October
5, 1990 page 40907). Unit 4 was de-authorized on July 9, 1995 under section
1001(B)(2), P.L. 99-662. 27 The purpose of Dworshak dam is flood control and
hydroelectricity generation so is another false statement to say that Rivertec’s proposed
generation would interfere and be inconsistent with the federal purposes of the Project.
This is even more ludicrous when the Corps states that they want to develop the exact
same project with funding from BPA.
37. The Commission sent a response letter28 to the Corps dated May 31, 2016 letting the
Corps know that the Commission had found that Commission retains jurisdiction to
issue a preliminary permit for development of the proposed project, that Congress
explicitly de-authorized development by the Corps at those skeleton bays, that Section
2406 of the Federal Policy Act of 1992 did not allow the Corps to pursue development,
and that development by the Corps at those bays would require re-authorization by
Congress.
26 61 Fed. Reg. 66,654 (1996); 55 Fed. Reg. 40,906 (1990). 27 Unit 4 has been deauthorized for development by Congress 61 Fed. Reg. 66,654, 66,655 (December 18, 1996) (Notice of Project Deauthorizations) 28 Letter from David Turner, Chief, Northwest Branch to BG Scott Spellmon, Division Commander, Northwestern Division, U.S. Army Corps of Engineers et. al. dated May 31, 2016
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38. The Commission also requested any additional arguments the Corps had on
jurisdiciton, and also wanted to know “if Rivetec’s proposed project would interfere
with existing dam operations or current plans for Dworshak dam Project”
39. LTC Damon Delerosa, District Commander, U.S. Army Corps of Engineers, in a letter
dated July 18, 2016 to the Commission, wrote that the proposed project would “require
significant use of Corps utilities and physical assets while constructing, operating and
maintaining any non-federal hydropower development. This would interfere with
Corps usage of these assets and would generate additional maintenance costs. It
potentially would create safety hazards for Corps personnel. The proposed project
would also create a number of physical and cyber security issues, endangering the
security and safety of Dworshak operations.”
40. The Corps concluded its argument “Additionally, the proposed project would
substantially interfere with the operations of Dworshak and the request for a
preliminary permit should, therefore, be denied. See Advanced Hydropower, Inc., 155
FERC ¶ 61,007 (2016) (denying preliminary permit due to Corps objections)”
41. First, a review of Rivertec’s preliminary permit application confirms that the CHP will
be located in the empty skeleton bay adjacent to the exiting powerhouse. While it
makes sense for the CHP to connect to the exiting powerhouse to share resources such
as the overhead crane to maximize synergies, this is only one option and the CHP
powerhouse can be completely self-contained and separate for the existing
powerhouse. The civil construction on the Dworshak dam is already complete and the
CHP will simply connect onto one of the three already constructed, but not used,
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penstocks. Also while it makes sense to explore use of Corps assets and the potential for
them to provide operations and maintenance on a direct funding basis, this is optional,
and Rivertec is perfectly capable of providing all assets and all operations and
maintenance services internally. Rivertec views the use of Corps personnel for
operations and maintenance on a direct funding basis as a significant benefit to both the
Corps and Rivertec. It is an alternative source of funding for Dworshak dam. It is also
policy of the Corps.
“In an era of decreasing resources, we must (also) look to alternative methods of resourcing our projects. One way we can do that is by engaging in public-private partnerships, or P3, in order to leverage resources from many organizations.29”
42. Second, the Corps never raised any of these issues in opposition when UAMPS
filed on and obtained a preliminary permit for the Dworshak Skeleton Bay
Hydroelectric Project.
43. Third, the Corps is interested in developing the same project that Rivertec is
proposing so arguendo if BPA were to fund this expansion instead of Rivertec,
they would have the same issues to address as Rivertec.
44. Fourth, the Federal Power Act (16 U.S.C. § 791, et seq.) provides security reviews of
hydropower projects and related facilities, including primary transmission lines, which
will address the Corps security concerns. This is also detailed in the MOU (defined
herein).
29 Last Salute, USA Today, Special Edition U.S. Army Corps of Engineers, 2016 Edition, Interview with Lt. Gen. Thomas P. Bostick, 53rd U.S. Army Chief of Engineers and commander of the Army Corps of Engineer.
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45. Fifth, the Corps evaluates requests for permanent modifications of its projects under
Section 14 of the Rivers and Harbors Act of 1899 (33 U.S.C. § 408) through information
provided by the developer (Rivertec) to the Corps District responsible for the project at
which hydropower development is under consideration. Final approval of the request
rests with the Director of Civil Works. To the extent practicable, the Corps will use the
design and environmental information the developer (Rivertec) has provided to the
Commission for its license process. This means that the Corps has the ability to insure
that the CHP and any modifications of its project are subject to its approval. Section 14
provides the answer to any concerns that the Corps raised in its communication.
46. Sixth, on July 20, 2016, the Corps entered into a Memorandum of Understanding30
(“MOU”) with the Commission on Non-Federal Hydropower Projects that address all
concerns raised by the Corps and clearly provides authority for the Commission to
provide a preliminary permit to Rivertec for the CHP and this overrides concerns raised
by the Walla Walla District.
47. The MOU provides that licensed hydropower facilities that will be an integral part of or
that could affect the structural integrity or operation of the Corps’ project shall be
designed and constructed in consultation with and subject to the review and approval
of the Corps under Section 14 of the Rivers and Harbors Act of 1899 (33 U.S.C. § 408)
30 Memorandum of Understanding on Non-Federal Hydropower Projects, executed July 20, 2016 between the Corps and the Commission
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pursuant to the current guidance implementing that authority31. This section of the
MOU should overrule any objection that the Corps has raised in opposition to the CHP.
48. In addition the MOU provides reimbursement to the United States under Section 10 of
the Federal Power Act provides that the Commissions’ D2SI-Regional Engineer shall be
responsible for the surveillance of the construction activities within the licensed project
boundaries. The Corps will provide periodic or continuous inspection at critical sates of
the construction of those portions of the licensed project works, that, in the judgment of
the Corps may affect the integrity or operation of existing project structures. The MOU
provides a process to remedy any concerns the Corps has in construction. During
operation, the CHP will be periodically inspected to ensure that the CHP is properly
operated, maintained, administered in conformance with license conditions and the
CHP will be integrated into the Corps’ emergency action plan. Further the MOU
requires Rivertec to enter into a Memorandum of Agreement with the Corps describing
the mode of hydropower operation acceptable to the Corps. Rivertec is even required to
coordinate the development of its plans for access to the site during site investigation,
construction, and operation with the Corps. Pursuant to the MOU, Rivertec will be
assessed a reasonable annual charge for the use of the Corps’ facilities.
31 Engineer Circular 1165-2-216, Water Resources Policies and Authorities, Policy and Procedural Guidance for Processing Requests to Alter US Army Corps of Engineers Civil Works Projects Pursuant to 33 USC 408
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STATEMENT OF ISSUE – DENIAL OF PERMIT BECAUSE OF CORPS OPPOSITION
49. The Corps concluded its argument 32 “Additionally, the proposed project would
substantially interfere with the operations of Dworshak and the request for a
preliminary permit should, therefore, be denied. See Advanced Hydropower, Inc., 155
FERC ¶ 61,007 (2016) (denying preliminary permit due to Corps objections)”
50. The Commission has ruled in its Order, that because the Corps, which owns the
Dworshak Dam facility and whose permission would be needed for the development of
any project at that facility, has stated that it opposes the project, therefore the
Commission determined that is no purpose in issuing a preliminary permit.33
51. Both the Commission and the Corps rely upon Advanced Hydropower Inc., 155 FERC ¶
61,007 (2016) denying preliminary permit due to Corps objections. It is true that the
Commission has denied preliminary permits for projects at federal facilities after
comments received from the relevant federal entities indicated that no purpose would
be served in issuing a permit because the federal entity would not approve
modifications to its federal facilities. This is clearly not the case because a) the
modifications are not integral to the existing federal facility, and b) the Corps wants to
make similar modifications but with BPA providing the funding. Further, the specific
issues raised by the Corps are clearly addressed in the MOU.
32 Letter from LTC Damon Delerosa, District Commander, U.S. Army Corps of Engineers, to FERC, in a letter dated July 18, 2016 33 However, we [the Commission] note that Commission staff maintains its position that the Commission has jurisdiction over non-federal hydropower development at the three vacant bays in the powerhouse. (from Order)
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52. In the case of Advanced Hydropower, the proposed project allegedly needed to make
substantial modifications to the existing powerhouse, was integral to the existing
powerhouse, and the Corps also objected stating that the project would conflict with the
purposes of McNary Lock and Dam and would interfere with the Corps ongoing turbine
replacement program and its potential installation of a surface passage system to
achieve juvenile fish survival targets, and that the project may significantly reduce the
stability of the dam. The Commission therefore denied a preliminary permit to
Advanced Hydropower. In this case, the Corps raised real, if unsubstantiated
objections which could have been addressed by the MOU between the Corps and
Commission. In recent decisions, the Commission and its staff have denied preliminary
permits for projects at federal facilities after comments received from the relevant
federal entities indicated that no purpose would be served in issuing a permit because
the federal entity would not approve modifications to its federal facilities. The ability
of the Corps or the Bureau of Reclamation to object and for the Commission to respect
their objections is based upon the assumption that these agencies will professionally
raise substantive issues and not to be used as a tool to prevent non-federal
development when their jurisdictional and other objections fail. This is an abuse of
process and is not the policy of the Corps. It is now being used to circumvent the
Commission’s jurisdiction.
53. The Walla Walla district used its ability to object to stop the project by Advanced
Hydropower, and now continues to use their ability to object to stop the Commission
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from granting preliminary permits in all three 34 of following preliminary permit
applications in Walla Walla district. In the case of CHP, the Corps did not make any
objection to a preliminary permit for UAMPS in 1997 but does now. In the case of the
Steelhead Hydroelectric Project, FERC No. P-14774, the Corps objected to this project
and the Commission denied a preliminary permit but it a very similar project to the
Sherman Hydroelectric Project, FERC No P-14752 where the Portland district did not
object to a preliminary permit for the Smolt Monitoring Facility at John Day dam. In the
case of McNary Second Powerhouse FERC No. P-14777, the Corps objected to a second
powerhouse that does not even connect to the McNary powerhouse but that the Corps
wants to do themselves in the future. This is clearly an abuse of process and an attempt
by the Corps to circumvent the Commissions authority.
54. In Owyhee Hydro, LLC,35 referenced by Advanced Hydropower Inc., 155 FERC ¶ 61,007
(2016), the Commission affirmed staff’s denial of a preliminary permit because the U.S.
Bureau of Reclamation stated that a non-federal entity’s proposed use of its federal
facility was unacceptable and would not be permitted.36 This however was an instance
where the Bureau of Reclamation had authority to develop all hydropower potential
and is not similar to the proposed CHP. Similarly, in Symphony Hydro LLC,37 staff denied
a preliminary permit application to study the feasibility of a project at the Corps’ Upper
St. Anthony Falls Lock and Dam based on the Corps’ comment that the project “would
34 McNary Second Powerhouse FERC No. P-14777, Steelhead Hydroelectric Project FERC No. P-14774, and Clearwater Hydroelectric Project FERC No. P-14753 35 154 FERC ¶ 61,210. 36 Id. at PP 22-25. 37 150 FERC ¶ 62,092 (2015).
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preclude or seriously interfere with its use of the lock for navigation and would
therefore be incompatible with the statutorily authorized purpose of the facility.”38 In
that case the proposed project would have interfered with the use of lock for
navigation. In the case of CHP, it does not interfere39 with the operation of Dworshak
dam’s authorized purposes and the proposed CHP is at a location where Congress has
expressly de-authorized development of additional hydropower by the Corps and
where the entire hydropower potential is not reserved for the Corps. The proposed
CHP does not interfere with federally authorized development since the additional
generation has been de-authorized by Congress.
55. In Owyhee Hydro, LLC,40 as support for its argument, Owyhee Hydro cites to cases where
the Commission issued preliminary permits despite expressed concerns from federal
entities. “However, in those cases, federal entities raised concerns about water
availability for non-federal development, 41 the protection of cultural and natural
resources,42 or concerns about environmental impacts associated with construction and
38 Id. at P 6. 39 “It has been determined that the proposed project has no impacts on Corps responsibilities regarding flood control or navigation.” Letter from John E. Velehradsky, Director of Engineering & Technical Services, Department of Army, North Pacific Division, Corps of Engineers addressed to Mrs. Lois Cashell, Secretary, Federal Energy Regulatory Commission, dated April 2, 1997 and received April 7, 1997. Available at FERC elibrary. 40 154 FERC ¶ 61,210. 41 See Owyhee Hydro’s Request for Rehearing at 26 (citing Utah Associated Municipal Power Systems, 80 FERC ¶ 61,244, at 61,904 n.3 (1997) (“Bonneville argues that a permit should not have been issued because there is no water available for the proposed project.”)). 42 See Owyhee Hydro’s Request for Rehearing at 26-28 (citing U.S. Bureau of Reclamation’s Motion to Dismiss filed in Docket 11872-000 on May 17, 2001). In that case, Reclamation opposed the permit, claiming that the site was reserved for federal development. In the order issuing the permit, Commission staff agreed that the Commission lacked jurisdiction within the Reclamation project and issued a preliminary permit for the portion of the
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operation.43 Those sorts of concerns are indeed feasibility concerns, and are often
addressed through further study during the preliminary permit term. None of these
cases involve a proposal, like the one here, to use a federal powerhouse or other federal
facility where the relevant federal agency stated that the proposed use by a non-federal
entity was “unacceptable” and would not be permitted.” In the proposed CHP, the
Corps raises issues that can be resolved in the preliminary permit term; especially via
the MOU.
56. Therefore a preliminary permit should be awarded to Rivertec because even if
arguendo the issues raised by the Corps are legitimate, there are numerous methods,
including the MOU, to address these issues in the preliminary and license process. To
the extent that Corps opposition is due to the Corps confirming their jurisdiction and
the Corps intent to stop non-federal development of hydropower this is abuse of
process and should not be tolerated as it interferes with the Commissions authority.
proposed project that was outside of Reclamation’s project. Gentry Resources Corp., 106 FERC ¶ 62,042, at 64,082-83 (2004). 43 Owyhee Hydro’s Request for Rehearing at 28-29 (citing Utah Independent Power, 141 FERC ¶ 61,226 (2012)). In that case, the Commission found no basis for concluding that the permittee could not design a project that could eventually receive a license. 141 FERC at 62,141.
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STATEMENT OF ISSUE – OPERATIONAL ISSUES RELATED TO WATER
57. The Corps then states44 in their letter to the Commission that they are concerned
with the addition of non-federal hydropower and its impact on operational
issues related to water.
58. The Commission has already ruled that non-federal development of hydropower at
Dworshak does not threaten the operation of the Federal Columbia River Power System
as one integrated system Idaho Water, 61 FERC ¶ 61,106 at 61,417. Among other
things, the Commission rejected BPA’s argument that non-federal development at
Dworshak threatened the operation of the Federal Columbia River Power System as one
integrated system, because BPA had “not demonstrated that the Dworshak Project
cannot be conditioned so as to permit its integrated operation with other projects that
are part of the Columbia River Power System.” Id. at 61,42045
59. In Owyhee Hydro, LLC,46 as support for its argument, Owyhee Hydro cites to cases where
the Commission issued preliminary permits despite expressed concerns from federal
entities. “However, in those cases, federal entities raised concerns about water
44 LTC Damon Delerosa, District Commander, U.S. Army Corps of Engineers, to FERC, in a letter dated July 18, 2016 45 The Commission has adhered to the conclusions it reached in Idaho Water in a case in which BPA made very similar arguments in a challenging the Commission’s authority to issue a preliminary permit for a hydroelectric project at Dalles Dam, also owned and operated by the Corps. Northern Wasco County People’s Util. Dist., 74 FERC ¶ 61,158 (1996). Once again, the Commission rejected BPA’s jurisdictional arguments, concluding that its “jurisdiction to issue permits and licenses for the development of a hydropower project at the Dalles Dam has not been withdrawn.” Id. at 61,557. 46 154 FERC ¶ 61,210.
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availability for non-federal development, 47 the protection of cultural and natural
resources,48 or concerns about environmental impacts associated with construction and
operation.49 Those sorts of concerns are indeed feasibility concerns, and are often
addressed through further study during the preliminary permit term. None of these
cases involve a proposal, like the one here, to use a federal powerhouse or other federal
facility where the relevant federal agency stated that the proposed use by a non-federal
entity was “unacceptable” and would not be permitted.” In the proposed CHP, the
Corps raises issues that can be resolved in the preliminary permit term. While the
Corps does say that it opposes the CHP, its reasons are ones that can be resolved in the
preliminary permit term and pursuant to the MOU. In fact since the Corps wants to do a
similar with BPA funding, they are acting in bad faith towards Rivertec’s application.
60. Rivertec has included this statement of issue since the Corps has raised this as an issue
even though it was not a reason stated in the Commission’s denial of a preliminary
permit to Rivertec.
47 See Owyhee Hydro’s Request for Rehearing at 26 (citing Utah Associated Municipal Power Systems, 80 FERC ¶ 61,244, at 61,904 n.3 (1997) (“Bonneville argues that a permit should not have been issued because there is no water available for the proposed project.”)). 48 See Owyhee Hydro’s Request for Rehearing at 26-28 (citing U.S. Bureau of Reclamation’s Motion to Dismiss filed in Docket 11872-000 on May 17, 2001). In that case, Reclamation opposed the permit, claiming that the site was reserved for federal development. In the order issuing the permit, Commission staff agreed that the Commission lacked jurisdiction within the Reclamation project and issued a preliminary permit for the portion of the proposed project that was outside of Reclamation’s project. Gentry Resources Corp., 106 FERC ¶ 62,042, at 64,082-83 (2004). 49 Owyhee Hydro’s Request for Rehearing at 28-29 (citing Utah Independent Power, 141 FERC ¶ 61,226 (2012)). In that case, the Commission found no basis for concluding that the permittee could not design a project that could eventually receive a license. 141 FERC at 62,141
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STATEMENT OF ISSUE – PRELIMINARY PERMIT IS DISCRETIONARY BY THE
COMMISSION
61. Section 4(f) of the FPA authorizes the Commission to issue preliminary permits for the
purpose of enabling prospective applicants for a hydropower license to secure the data
and perform the acts required by section 9 of the FPA,50 which in turn sets forth the
material that must accompany an application for a license. The Commission is not
required to grant a preliminary permit application, so long as it articulates a rational
basis for not doing so.51
62. Rivertec does not dispute that the Commission’s granting of a preliminary permit is
discretionary but in the instance at hand, if the Commission allows this abuse of process
to become precedent then the Commission will effectively concede its jurisdiction over
any facility related to the Corps or the Bureau of Reclamation. For a private developer, a
preliminary permit is required to protect the large investments required to obtain a
license. The practical result of the Commission deferring to the Corps or the Bureau of
Reclamation is to preclude non-federal development of hydropower at Corps or Bureau
of Reclamation projects even where the Commission has jurisdiction.
50 16 U.S.C. § 802 (2012) 51 See Advanced Hydropower, Inc., 155 FERC ¶ 61,007, at P 8 (2016); Owyhee Hydro, LLC, 154 FERC ¶ 61,210, at P 23 (2016); Wyco Power and Water, Inc., 139 FERC ¶ 61,124 (2012) (citing Kamargo Corp. v. FERC, 852 F.2d 1392, 1398 (D.C. Cir. 1988)).
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63. In Owyhee Hydro, LLC,52 as support for its argument, Owyhee Hydro cites to cases where
the Commission issued preliminary permits despite expressed concerns from federal
entities. “However, in those cases, federal entities raised concerns about water
availability for non-federal development, 53 the protection of cultural and natural
resources,54 or concerns about environmental impacts associated with construction and
operation.55 Those sorts of concerns are indeed feasibility concerns, and are often
addressed through further study during the preliminary permit term. None of these
cases involve a proposal, like the one here, to use a federal powerhouse or other federal
facility where the relevant federal agency stated that the proposed use by a non-federal
entity was “unacceptable” and would not be permitted.” In the proposed CHP, the
Corps raises issues that can be resolved in the preliminary permit term especially
through the recently signed MOU. While the Corps does say that it opposes the CHP, it
reasons are ones that can be resolved in the preliminary permit term. In fact since the
Corps wants to do a similar with BPA funding, they are acting in bad faith towards
52 154 FERC ¶ 61,210. 53 See Owyhee Hydro’s Request for Rehearing at 26 (citing Utah Associated Municipal Power Systems, 80 FERC ¶ 61,244, at 61,904 n.3 (1997) (“Bonneville argues that a permit should not have been issued because there is no water available for the proposed project.”)). 54 See Owyhee Hydro’s Request for Rehearing at 26-28 (citing U.S. Bureau of Reclamation’s Motion to Dismiss filed in Docket 11872-000 on May 17, 2001). In that case, Reclamation opposed the permit, claiming that the site was reserved for federal development. In the order issuing the permit, Commission staff agreed that the Commission lacked jurisdiction within the Reclamation project and issued a preliminary permit for the portion of the proposed project that was outside of Reclamation’s project. Gentry Resources Corp., 106 FERC ¶ 62,042, at 64,082-83 (2004). 55 Owyhee Hydro’s Request for Rehearing at 28-29 (citing Utah Independent Power, 141 FERC ¶ 61,226 (2012)). In that case, the Commission found no basis for concluding that the permittee could not design a project that could eventually receive a license. 141 FERC at 62,141.
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Rivertec’s application. In addition, in this instance the recently signed MOU provides a
process to address all concerns raised by the Corps and therefore the Commission
should exercise its jurisdiction and issue a preliminary permit to Rivertec.
64. As seen in the Statement of Issue – Corps Opposition to CHP, herein, the Walla Walla
district of the Corps of Engineers is abusing the process to circumvent the Commissions
authority. This has already caused irreparable harm to Rivertec. The Commission
should act to preserve its jurisdiction and issue a preliminary permit to Rivertec.
65. There is a municipal preference 56 when there are competing preliminary permit
applications between a private entity and a municipal power company. When the
Commission evaluates the competing applications, they are typically evaluating only
conceptual plans and there is no sound basis to make a determination. The Commission
still makes a determination. In this instance the Commission can make an initial
determination that the proposed project does not interfere with the operation of
Dworshak dam and the details can be looked at in the future. Further supporting this
56 16 U.S.C. § 800(a) (1982). Section 7(s) of the Federal Power Act provides: In issuing preliminary permits hereunder or licenses where no preliminary permit has been issued and in issuing licenses to new licensees under section 15 hereof, the Commission shall give preference to applications therefor by States and municipalities, provided the plans for the same are deemed by the Commission equally well adapted, or shall within a reasonable time to be fixed by the Commission be made equally well adapted, to conserve and utilize in the public interest the water resources of the region. Municipal preferences would be employed only if the Commission reaches the threshold finding that the competitors’ plans are “equally well adapted” to serve the public interest. See Massella, Hydropower Relicensing: Mervin Dam, A Framework for Decisions, Pub. Fort., Apr. 28, 1983, at 60; 1980 FERC Ann. Rep. 42.
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position is that the recently signed MOU provides a process to develop the proposed
CHP and ensure alignment between all parties.
66. Given that all the issues raised by the Corps are dealt with in the MOU, the Commission
should reconsider its Order and grant a preliminary permit to Rivertec.
67. Rivertec’s development of the CHP is a picture perfect fit and opportunity to apply the
recently signed MOU and show that it can be a success. The issues raised by the Corps
dovetail with processes agreed upon in the MOU. Further, there are only minimal
extraneous issues related to Rivertec obtaining a license for the CHP so the main focus
on the preliminary permit period will be on the MOU. The proposed project is on the
de-authorized skeleton bay at Dworshak Dam. If the MOU does not justify the issuance
of a preliminary permit in this instance, then there is no point to having the MOU.
68. Rivertec recognizes that the issuance of a preliminary permit is discretionary on the
part of the Commission. From Rivertec’s perspective a preliminary permit is necessary
to move forward and if the Commission does not exercise its authority to issue a
preliminary permit, this development will be stopped.
69. The ability to obtain a preliminary permit to secure priority is vital to securing
financing. There is a real effect that as a non-municipal power company with second
preference, the lack of a preliminary permit eliminates any ability to develop a site. A
preliminary permit is critical in reducing the development risk and Rivertec
respectfully requests the Commission issue one in this instance.
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LEGAL ARGUMENT
70. This Request for Rehearing has already provided the main legal argument for each
Statement of Issue but there are additional relevant Corps policy and laws of the United
States that support Rivertec’s position.
71. On June 10, 2014, President Obama signed the Water Resources Reform and
Development Act (“WRRDA 2014”). WRRDA 2014, Section 1008 provides by statue
and as implemented in Implementation Guidance57 of Section 1008 of the Water
Resources Reform and Development Act of 2014 – Expediting Hydropower at Corps of
Engineers Facilities, dated November 9, 2015, by Edward E. Belk, Chief, Operations and
Regulatory Division, Directorate of Civil Works, provides that it is the policy of the
Corps that non-federal power development of hydropower be given priority. Therefore
the Corps should support the CHP because even if arguendo BPA could fund the
expansion under Section 2406 (which does work in any case because the skeleton bays
are de-authorized by Congress), WRRDA 2014 would prioritize Rivertec’s project.
72. The proposed CHP is clearly a policy priority of the Corps and is an alternative source of
funding for Dworshak dam and Rivertec will negotiate alternative funding with the
Corps.
57 Per Section 1008, it is the policy of the United States that inter alia a) the development of non-Federal Hydroelectric power at the Corps of Engineers civil works projects, including locks and dams, shall be given priority, and b) Corps of Engineers approval of non-Federal hydroelectric power at Corps of Engineers civil works projects, including permitting required under section 14 of the Act of March 3, 1899 (33 U.S.C. 408), shall be completed by the Corps of Engineers in a timely and consistent manner; and c) Approval of hydropower at Corps of Engineers civil works projects shall in no way diminish the other priorities and missions of the Corps of Engineers, including authorized project purposes and habitat and environmental protection
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“In an era of decreasing resources, we must (also) look to alternative methods of resourcing our projects. One way we can do that is by engaging in public-private partnerships, or P3, in order to leverage resources from many organizations.58”
73. The Corps recently entered Memorandum of Understanding59 (“MOU”) with the
Commission on Non-Federal Hydropower Projects that address all concerns raised by
the Corps and provides a blueprint for moving forward.
74. It is clear that the Corps has relied upon opposition to the CHP to circumvent the
Commissions jurisdiction. This is abuse of process and directly in violation of WRRDA
2014, Corps policy, and the MOU.
75. Since the Corps was not successful in arguing that the Commission lacked jurisdiction
over the CHP and also not successful in arguing that it could develop the proposed
project on its own despite this being deauthorized by Congress, it now advances an
argument that since the Corps opposes the Project that a preliminary permit to Rivertec
should be denied. In fact a review of the Corps communication reveals that the
proposed project is viable and needed but that the Corps wants to get its funding from
BPA and not from a non-federal power development. This ignores the fact that BPA
cannot fund a deauthorized project for the Corps and that it is Corps and Congress
policy to prioritize non-federal development of power at Corps facilities. The Corps
58 Last Salute, USA Today, Special Edition U.S. Army Corps of Engineers, 2016 Edition, Interview with Lt. Gen. Thomas P. Bostick, 53rd U.S. Army Chief of Engineers and commander of the Army Corps of Engineer. 59 Memorandum of Understanding on Non-Federal Hydropower Projects, signed July 20, 2016 between the Corps and the Commission
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clearly does not object to the proposed project but only that the project would be done
by a private entity in violation of both Corps policy and WRRDA 2014.
CONCLUSION
76. Therefore, Rivertec requests that the Commission reconsiders its Order and grant a
preliminary permit to Rivertec for the Clearwater Hydroelectric Project.
Dated: September 27, 2016
Rivertec Partners LLC
Mark Steinley, Managing Member
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