In re PacifiCorp, 15239-000

CourtFederal Energy Regulatory Commission
Citation179 FERC ¶ 61, 116
Decision Date19 May 2022
Docket Number15239-000

179 FERC ¶ 61, 116


No. 15239-000

United States of America, Federal Energy Regulatory Commission

May 19, 2022

Before Commissioners: Richard Glick, Chairman; James P. Danly, Allison Clements, Mark C. Christie, and Willie L. Phillips.


1. On October 13, 2021, PacifiCorp filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), [1] to study the feasibility of the Crooked Creek Pumped Storage Project (Crooked Creek Project or project). The project would be located near Valley Falls, in Lake County, Oregon. The project would occupy federal land managed by the U.S. Forest Service (Forest Service), within the Fremont-Winema National Forest. For the reasons discussed below, we are issuing a preliminary permit to PacifiCorp.

I. Proposal

2. The proposed project would consist of the following: (1) a 4, 200-foot-long, 100 foot-high embankment dam, creating an upper reservoir with a surface area of 52 acres and a storage volume of approximately 2, 344 acre-feet; (2) a 4, 300-foot-long, 130 foot-high embankment dam, creating a lower reservoir with a surface area of 50 acres and a storage volume of approximately 2, 052 acre-feet; (3) a 2-mile-long, 18-foot-diameter excavated tunnel and 1.3-mile-long, 18-foot-diameter steel penstock connecting the upper reservoir and lower reservoir after passing through the powerhouse/pump station; (4) a 150-foot-long, 50-foot-wide concrete powerhouse/pump station located on the lower reservoir shoreline containing three 167-megawatt generating/pumping units; (5) a 19.7-mile, 500-kilovolt transmission line interconnecting to the existing Mile Hi substation in Lakeview, Oregon; (6) an 8.7-mile underground pipeline to divert water from the Chewaucan River to the project for initial and maintenance fill; and, (7) appurtenant facilities.


3. The project would be operated as a closed-loop system and generate an estimated annual average of 1, 460 gigawatt-hours.

II. Notice, Interventions, and Comments

4. On December 21, 2021, the Commission issued public notice of PacifiCorp's permit application, establishing a deadline of February 22, 2022, for filing comments, interventions, and competing applications.[2] Notice of the application was published in the Federal Register on December 28, 2021.[3]

5. The U.S. Department of Agriculture, on behalf of the Forest Service, and the State of Oregon[4] filed timely notices of intervention. The Forest Service and Oregon WRD filed comments. Amy M. Stuart and Michael Gerdes filed timely, unopposed motions to intervene. Oregon Wild, the Center for Biological Diversity, and Great Old Broads for Wilderness filed timely, unopposed motions to intervene and comments. The Oregon Natural Desert Association (Desert Association) and WaterWatch of Oregon (WaterWatch) filed timely, unopposed motions to intervene and comments in opposition to the permit. The Oregon Lakes Association (Lakes Association), DeNae E. Bauer, Margot Dodds, and the Klamath Tribes filed comments. Timely, unopposed motions to intervene are granted by operation of Rule 214 of the Commission's regulations.[5]

6. The comments on the application, which are discussed below, have been fully considered in determining whether to issue the permit for the project.


III. Discussion

7. 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.[6] The purpose of a preliminary permit is to preserve the right of the permit holder to have the first priority in applying for a license for the proposed project that is being studied.[7] However, a preliminary permit does not authorize the permittee to access lands and does not authorize the permittee to undertake any land-disturbing activities.[8] The permittee must obtain authorization and comply with all applicable laws and regulations to conduct any field studies.[9] Further, permit conditions are framed to ensure that the permittee does not tie up a site without pursuing in good faith a study of the project's feasibility.[10] If the project is found to be feasible, the permittee can use the data and information gathered to prepare an application for a license.


A. Public Interest

8. WaterWatch states that the permit should not be issued because the proposed project is not in the public interest and would result in unmitigable losses of natural resource values.[11] WaterWatch adds that the project is poorly conceived, speculative, and infeasible given the arid environment, severe water availability challenges and critical ecological resources associated with the Chewaucan River and Lake Abert.[12]WaterWatch asserts that prior efforts to site a pumped storage project[13] in this area failed and that the Commission should reject the permit rather than cause the utility, regulatory agencies, and interested parties to expend time and resources on this proposal.

9. The Commission does not make a public interest finding at the preliminary permit stage.[14] The Commission will make such a finding upon its review of any information and analyses that are developed and submitted as part of an application for a hydropower license. Accordingly, WaterWatch's arguments would warrant consideration in a licensing proceeding, but are premature here.

B. Comments on Project Construction and Operation

10. Commenters express concern regarding the potential impacts of project construction and operation to: (1) water quality and quantity of Crooked Creek, the Chewaucan River, Summer Lake, and Lake Abert; (2) aquatic resources and fisheries; (3) wildlife; (4) rare, threatened and endangered species; (5) special habitats; (6) cultural resources; (7) recreation resources; (8) scenic values; and (9) public health. The commentors also express concern that the project would generate noise and light pollution, spread invasive weeds, increase landslide susceptibility, and alter wildfire regimes in the area.


11. The Desert Association states that the permit should not be issued because the proposed project would adversely affect habitat important to sensitive and threatened wildlife found in the Thomas Creek-Goose Lake and Warmer Mountains Conservation Opportunity Areas, and Ecoregional Priority Areas.[15] WaterWatch states that the permit should not be issued because the proposed project would cause significant harm to the Lake Abert Area of Critical Environmental Concern, which was established to protect sensitive lake hydrology and threatened wildlife.[16] WaterWatch adds that the project would likely face extensive legal barriers related to Wilderness Study Area management requirements in place near the project.[17] The Great Old Broads for Wilderness are concerned that the project could have impacts on native upland, riparian, and aquatic habitats and species on public land.[18] Oregon Wild states that the project may be inconsistent with the management area designations of the Land and Resource Management Plan of the Fremont National Forest.[19]

12. As noted above, a preliminary permit does not authorize access to the project lands or project construction. Therefore, addressing these concerns at the permit stage is premature.[20] The purpose of a preliminary permit is to secure the permit holder's priority for filing a development application while it studies the feasibility of a project, including studying potential impacts, such as those identified by the commenters here. Concerns regarding impacts to any resource, including water quality, fish, wildlife, habitats, and


scenic and recreational values, would be addressed and considered during a licensing proceeding. Additionally, the proximity of a proposed project to a Wilderness Study Area does not preclude an entity from receiving a preliminary permit to study the proposed project area.[21] Issues regarding project construction and operation would be considered and addressed should they be raised if PacifiCorp ultimately files a license application.

C. Comments on Consultation and Study Requirements

13. As an initial matter, we note that at the preliminary permit stage the Commission does not dictate study requirements.[22] Rather, the studies to be undertaken by a permittee should be shaped by the Commission's filing requirements for development applications. Potential applicants are required to consult with appropriate state and federal resource agencies and affected Indian Tribes, conduct all reasonable studies requested by the agencies, and solicit comments on the applications before they are filed.[23]

14. Oregon WRD states that PacifiCorp should be required to establish a gauging station to measure water flow in Crooked Creek at or near the proposed point of diversion for at least three years prior to filing a license application.[24] The Lakes Association requests that studies and measurements that establish water budgets for the Chewaucan River, Lake Abert, and Summer Lake be conducted prior to issuing a preliminary permit.[25] Commenters state that greenhouse gas emissions associated with planning, construction, operation, and maintenance of the project should be fully analyzed.[26]


15. The Commission will consider in any future licensing proceeding arguments regarding project impacts on water use. Accordingly, it might be prudent for the permittee to consider and study during the term of the permit whether there is enough water physically available to make the proposed project feasible.

16. The Klamath Tribes state that the proposed project could adversely impact cultural resources and sacred sites.[27] The Klamath Tribes add that PacifiCorp did not consult with the Klamath Tribes in choosing the location of the proposed...

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