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153 Ferc ¶ 62,241 United States of America Federal Energy Regulatory Commission

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153 Ferc ¶ 62,241 United States of America Federal Energy Regulatory Commission 20151223-3035 FERC PDF (Unofficial) 12/23/2015 153 FERC ¶ 62,241 UNITED STATES OF AMERICA FEDERAL ENERGY REGULATORY COMMISSION North Santiam Hydro Power, LLC Project No. 14696-000 ORDER DISMISSING PRELIMINARY PERMIT APPLICATION (December 23, 2015) 1. This order finds that the Commission lacks jurisdiction to issue a permit or a license to North Santiam Hydro Power, LLC (North Santiam) for its proposed hydroelectric project at the Detroit Dam and accordingly dismisses North Santiam’s application for a preliminary permit to study the feasibility of such a hydroelectric project. I. Background 2. On July 24, 2015, North Santiam filed an application for a preliminary permit to study the feasibility of constructing a hydroelectric project at the U.S. Army Corps of Engineers’ (Corps) Detroit Dam located on the North Santiam River in Linn and Marion Counties, Oregon.1 3. The Corps’ existing Detroit Dam is a 1,524-foot-long, 463-foot-high concrete gravity dam. Currently, the Corps is operating two 50-megawatt (MW) turbine- generators at the site, for a total capacity of 100 MW. 4. The proposed project would use the existing 8-foot-diameter steel pipe,2 which passes through Detroit Dam, and consist of the following new features: (1) an intake structure immediately upstream of the dam; (2) a 200-foot-long, 8-foot-diameter steel penstock; (3) a 60-foot-long, 40-foot-wide powerhouse; (4) a 26-MW vertical-shaft Francis turbine; (5) a 20-foot-long steel draft tube discharging into a concrete tailrace, returning flows to the North Santiam River; (6) a 0.5-mile-long transmission line interconnecting with the existing Detroit Dam substation; and (7) appurtenant facilities. The estimated annual generation of the project would be 85 gigawatt-hours. 1 The proposed project would occupy approximately 20 acres of federal land managed by the Corps. 2 North Santiam states that the pipe was installed during the dam’s construction in order to perform initial hydraulic studies and is not currently used for dam operation. 20151223-3035 FERC PDF (Unofficial) 12/23/2015 Project No. 14696-000 - 2 - 5. On August 18, 2015, Commission staff sent the Corps a letter with a preliminary jurisdictional determination, based on the authorizing statute and supporting documents for Detroit Dam, that the Commission lacks authority to authorize hydropower development at the Detroit Dam. 6. On November 17, 2015, the Corps filed its response, agreeing with staff’s determination.3 II. Discussion 7. Sections 4(e) and 4(f) of the Federal Power Act4 authorize the Commission to issue preliminary permits and licenses for non-federal hydropower projects to be located at federal dams and facilities. This jurisdiction is withdrawn if federal development of hydropower generation at the site is authorized, or if Congress otherwise unambiguously withdraws the Commission's jurisdiction over the development of such generation.5 8. Construction of the Detroit Dam was authorized by the Flood Control Act of 1938, as recommended in H.R. Doc. No. 544.6 The act does not mention hydropower development as an authorized purpose of Detroit Dam. The Rivers and Harbors Act of 1948 authorized the installation of hydroelectric power at the Detroit Dam.7 Section 203 of the act provides: The general comprehensive plan for flood control, navigation, and other purposes approved by the Flood Control Act of June 28, 1938, is hereby modified to provide for the installation of hydroelectric power generating facilities, 3 Further, the Corps states that it is conducting studies on downstream fish passage at Detroit Dam and developing plans and designs pursuant to the National Marine Fisheries Service Willamette Valley Biological Opinion of 2008 for Upper Willamette River Chinook salmon and steelhead, and the proposed project would likely conflict with those plans. 4 16 U.S.C. §§ 797 (e), (f) (2012). 5 See, e.g., Richard D. Ely, III, 87 FERC ¶ 61,176 (1999), citing City of Gillette, Wyoming, 25 FERC ¶ 61,366 (1983). 6 Pub. L. No. 75-761, 52 Stat. 1215. Commission staff has not been able to locate a copy of H.R. Doc. No. 544. 7 Rivers and Harbors Act of 1948, Pub. L. No. 80-858, 62 Stat. 1172. 20151223-3035 FERC PDF (Unofficial) 12/23/2015 Project No. 14696-000 - 3 - including the construction of a reregulating dam, at Detroit Reservoir on the North Santiam River in accordance with the plans on file in the office of the Chief of Engineers.8 9. In determining whether the language of an authorizing statute unambiguously withdraws the Commission’s jurisdiction at U.S. Bureau of Reclamation (Reclamation) dams, the Commission applies the principles and presumptions established in its 1992 memorandum of understanding (MOU) with Reclamation.9 The Commission previously found that this guidance is “eminently transferrable to legislation authorizing Corps dams, inasmuch as it is grounded in established principles of statutory construction.”10 10. Under Presumption 4 of the MOU, if, as is the case here, the authorizing statute, as amended, or any documents incorporated by reference in the statute: specifically authorize [the Corps] to construct, operate, or maintain hydroelectric facilities or powerplants, then [the Corps] is presumed to have jurisdiction even though the authorizing statute does not specifically withdraw the Commission’s authority over all hydropower development within the project. 11. For the above reasons, Commission staff and the Corps agree that hydropower development at Detroit Dam has been reserved for exclusive federal development, and the Commission thus lacks authority to issue a permit or a license to North Santiam for its proposed hydroelectric project at the Detroit Dam. Accordingly, its preliminary permit application is dismissed. 8 The plans referred to in the above authorization cannot be located. However, as evidence of the Corps’ plans, a later June 28, 1949 report from the Corps’ Chief of Engineers8 describes power facilities as being constructed at the dam. See House Document 81-531, “Columbia River and Tributaries, Northwestern United States; Letter from the Secretary of the Army Transmitting a Letter from the Chief of Engineers, United States Army, Dated June 28, 1949, Submitting a Report, Together with Accompanying Papers and Illustrations, on a Review of Reports on, and Preliminary Examinations and Surveys of, the Columbia River and Tributaries, Northwestern United States, Made Pursuant to Several Congressional Authorizations Listed in the Report in Eight Volumes,” Appendix J, at 1786-87. 9 58 Fed. Reg. 3269 (January 8, 1993). 10 See Troup County Board of Commissioners, 102 FERC ¶ 61,300, at 61,953 (2003). 20151223-3035 FERC PDF (Unofficial) 12/23/2015 Project No. 14696-000 - 4 - The Director orders: (A) The application for preliminary permit for the Detroit Lake Hydroelectric Project No. 14696, filed on July 24, 2015, by North Santiam Hydro Power, LLC, is dismissed. (B) This order constitutes final agency action. Any party may file a request for rehearing of this order within 30 days of the date of its issuance, as provided in section 313(a) of the Federal Power Act, 16 U.S.C. § 825l (2012), and section 385.713 of the Commission’s regulations, 18 C.F.R. § 385.713 (2015). Vince Yearick Director Division of Hydropower Licensing 20151223-3035 FERC PDF (Unofficial) 12/23/2015 Document Content(s) P-14696-000 Order North 94.DOC........................................1-4.
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