In re PacifiCorp, 15246-000

CourtFederal Energy Regulatory Commission
Citation179 FERC ¶ 61, 115
Docket Number15246-000
PartiesPacifiCorp
Decision Date19 May 2022

179 FERC ¶ 61, 115

PacifiCorp

No. 15246-000

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.

ORDER ISSUING PRELIMINARY PERMIT AND GRANTING PRIORITY TO FILE LICENSE APPLICATION

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 Winter Ridge Pumped Storage Project (Winter Ridge Project or project). The project would be located near Paisley, 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, and the U.S. Bureau of Land Management, within the Lakeview District. For the reasons discussed below, we are issuing a preliminary permit to PacifiCorp.

1. Proposal

2. PacifiCorp has proposed two alternatives for the Winter Ridge Project. Alternative 1 would consist of the following new facilities: (1) a 4, 700-foot-long, 120-foot-high embankment dam, creating an upper reservoir with a surface area of 85 acres and a storage volume of approximately 4, 285 acre-feet; (2) a 5, 320-foot-long, 80-foot-high embankment dam, creating a lower reservoir with a surface area of 43.6 acres and a storage volume of approximately 2, 156 acre-feet; (3) a 2.23-mile-long, 15-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 9.3-mile-long, 500-kilovolt transmission line interconnecting to the Sycan substation; (6) a 19.2-mile-long underground pipeline to divert water from the Chewaucan River to the project for initial and maintenance fill; and (7) appurtenant facilities. Alternative 2 would consist of the same facilities described in Alternative 1 except: (1) the lower reservoir would have a surface area of 50 acres and a

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storage volume of approximately 2, 000 acre-feet created by a 4, 100-foot-long, 170-foot-high embankment dam; (2) the upper reservoir and lower reservoir would be connected by a 0.9-mile-long, 15-foot diameter excavated tunnel and 1.5-mile-long, 15-foot diameter steel penstock; and (3) the transmission line would be 9.8 miles in length interconnecting to the same substation.

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 Mike 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), the U.S. Environmental Protection Agency (EPA), the U.S. Department of Interior (Interior), the

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Klamath Tribes, and nine individuals filed comments.[5] Timely, unopposed motions to intervene are granted by operation of Rule 214 of the Commission's regulations.[6]

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.[7] 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.[8] However, a preliminary permit does not authorize the permittee to access lands and does not authorize the permittee to undertake any land-disturbing activities.[9] The permittee must obtain authorization and comply with all applicable laws and regulations to conduct any field studies.[10] Further, permit conditions are framed to ensure that the permittee does

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not tie up a site without pursuing in good faith a study of the project's feasibility.[11] 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.[12] 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.[13]WaterWatch asserts that prior efforts to site a pumped storage project[14] 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.[15] 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.

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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 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 commenters 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 Summer Lake Conservation Opportunity Area and Ecoregional Priority Areas, [16] and would negatively affect the Fremont National Recreation Trail and the Oregon Timber Trail.[17] 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.[18] Oregon Wild adds that the project may be inconsistent with the management area designations of the Land and Resource Management Plan of the Fremont National Forest, and that water diversions from the Chewaucan River would violate the instream flow goals of the plan.[19] The Great Old Broads for Wilderness are concerned that the project could have impacts on native upland, riparian, and aquatic habitat and species on public land.[20] Interior states that the proposed project may conflict with several existing rights-of-way, designated uses, sage-grouse habitat management, and visual resource management within the Lakeview District, the Diablo Mountain Wilderness Study Area, and the Monument Rock Wilderness Characteristics Unit.[21]

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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.[22] 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 Wilderness Study Area does not preclude an entity from receiving a preliminary permit to study the proposed project area.[23] Interior is not opposed to the Commission issuing the permit, but rather requests that the applicant consider any impacts on the Wilderness Study Area including restrictions on new rights-of-way. 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.[24] 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

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agencies and affected Indian Tribes, conduct all reasonable studies requested by the agencies, and solicit comments on the applications before they are filed.[25]

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