Public Service Co. of Colorado v. F.E.R.C.
| Decision Date | 15 February 1985 |
| Docket Number | Nos. 82-2119,82-2180 and 84-1343,s. 82-2119 |
| Citation | 754 F.2d 1555 |
| Parties | PUBLIC SERVICE COMPANY OF COLORADO, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. COLORADO RIVER WATER CONSERVATION DISTRICT, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. PUBLIC SERVICE COMPANY OF COLORADO, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Donald H. Hamburg, Gen. Counsel, Glenwood Springs, Colo. (Robert L. McCarty and Michael N. McCarty of McCarty, Noone & Williams, Washington, D.C., with him on the brief), for petitioner Colorado River Water Conservation Dist.
Andrea Wolfman, Atty., Washington, D.C. (William H. Satterfield, Gen. Counsel, Stephen R. Melton, Acting Gen. Counsel, and Jerome M. Feit, Sol., Washington, D.C., with her on the briefs), for respondent F.E.R.C.
James R. McCotter, Denver, Colo. (Timothy J. Flanagan, Denver, Colo., with him on the briefs) of Kelly, Stansfield & O'Donnell, Denver, Colo., for petitioner Public Service Co. of Colorado.
Before BARRETT, DOYLE and SEYMOUR, Circuit Judges.
The Public Service Company of Colorado (PSC) and the Colorado River Water Conservation District (CRWCD), an intervenor in the administrative proceedings, petition this Court for review of two orders of the Federal Energy Regulatory Commission (FERC). In its "Order Providing For Hearing," Docket No. HB24-63-3, February 10, 1982, 18 FERC p 61,110, FERC determined that PSC was liable to pay the United States for headwater benefits received at PSC's Shoshone Hydroelectric Plant from the United States' Green Mountain Reservoir, pursuant to section 10(f) of the Federal Power Act, 16 U.S.C. Sec. 803(f) (1982). R. Joint Appendix, p. 35/119. In its "Opinion No. 200, Opinion Reversing Initial Decision And Dismissing Request For Rehearing," Docket No. HB-24-63-3-000, December 21, 1983, 25 FERC p 61,399, FERC determined that PSC must reimburse the United States for costs incurred in the headwater benefits investigation that had been undertaken, again pursuant to section 10(f) of the Federal Power Act, 16 U.S.C. Sec. 803(f) (1982). R.Supp. Joint Appendix, p. 186/790. FERC denied the parties' requests for rehearing on both of these orders, R.Supp. Joint Appendix, p. 210/817; R. Joint Appendix, p. 56/162. This Court has jurisdiction to entertain the petition for review of these orders pursuant to section 313 of the Federal Power Act, 16 U.S.C. Sec. 825l (1982).
This case involves two installations on the Colorado River system in Western Colorado, and their relationship to each other. The first installation is the Shoshone Hydroelectric Plant, located on the Colorado River itself, on public lands approximately ten miles east of the town of Glenwood Springs, Colorado. It consists of a diversion dam on the river, a gravity tunnel 2 1/3 miles long through which the river's water can be diverted, and a power house where the diverted water under hydrostatic head is used to generate electricity. The Shoshone Plant is a "run-of-the-river" facility, meaning that no water is actually stored there. The Shoshone Plant's operation depends on the direct flow of the river; when the river's flow is less than 1250 cubic feet per second (c.f.s.), 1 the Plant's electrical generating capacity is diminished. No water is actually consumed by the Plant's power production operation. The Shoshone Plant was built pursuant to a right-of-way permit by the Secretary of the Interior in 1903, allowing PSC's predecessor, the Central Colorado Power Company, to enter onto the public lands. The Secretary had allowed entry pursuant to a February 15, 1901 Act, 31 Stat. 790. 2 Since this was before the 1920 passage of the Federal Water Power Act, no license from the Federal Power Commission was necessary to construct the Shoshone Plant.
The Shoshone Plant was completed and began operation in 1909. It has an adjudicated water right of 1250 c.f.s. with a priority date of January 7, 1902, which is the oldest industrial water right on the Colorado River. The only water rights on the river that are senior to the Shoshone Plant's are for agricultural uses in Colorado's Grand Valley, downstream from the Plant.
The second installation involved in this case is Green Mountain Reservoir, a water storage facility operated by the Bureau of Reclamation, United States Department of the Interior. It lies on the Blue River, a tributary of the Colorado River, approximately 16 miles southeast of the town of Kremmling, Colorado. The dam and reservoir are approximately eight miles above the confluence of the Blue and Colorado Rivers, about one hundred miles upstream from the Shoshone Plant. Green Mountain Reservoir is part of the Colorado-Big Thompson Project, an elaborate system of reclamation facilities constructed to divert water from the Colorado River on Colorado's Western Slope across the Continental Divide onto Colorado's Eastern Slope. The Colorado-Big Thompson Project was authorized and funded by an Act of Congress on August 9, 1937, 50 Stat. 564, 595 (1937). The Act provided that construction would be in accordance with the plan described in Senate Document Number 80, 75th Congress, 1st Session (Senate Document 80). Senate Document 80 describes, among other things, the planned facilities and the manner in which they will be operated. The document provides in pertinent part as follows:
MANNER OF OPERATION OF PROJECT FACILITIES AND AUXILIARY FEATURES
The construction and operation of this project will change the regimen of the Colorado River below the Granby Reservoir. The project contemplates the maximum conservation and use of the waters of the Colorado River, and involves all of the construction features heretofore listed. In addition thereto certain supplemental construction will be necessary. This will be for the primary purpose of preserving insofar as possible the rights and interests dependent on this water, which exist on both slopes of the Continental Divide in Colorado. The project, therefore, must be operated in such a manner as to most nearly effect the following primary purposes:
1. To preserve the vested and future rights in irrigation.
2. To preserve the fishing and recreational facilities and the scenic attractions of Grand Lake, the Colorado River, and the Rocky Mountain National Park.
3. To preserve the present surface elevations of the water in Grand Lake and to prevent a variation in these elevations greater than their normal fluctuation.
4. To so conserve and make use of these waters for irrigation, power, industrial development, and other purposes, as to create the greatest benefits.
5. To maintain conditions of river flow for the benefit of domestic and sanitary uses of this water.
In order to accomplish these purposes the project should be operated by an unprejudiced agency in a fair and efficient manner, equitable to all parties having interests therein, and in conformity with the following particular stipulations:
(a) The Green Mountain Reservoir, or similar facilities, shall be constructed and maintained on the Colorado River above the present site of the diversion dam of the Shoshone power plant, above Glenwood Springs, Colo., with a capacity of 152,000 acre-feet of water, with a reasonable expectancy that it will fill annually. Of said capacity, 52,000 acre-feet of water stored therein shall be available as replacement in western Colorado, of the water which would be usable there if not withheld or diverted by said project; 100,000 acre-feet shall be used for power purposes; and all of said stored waters shall be released under the conditions and limitations hereinafter set forth.
(b) Whenever the flow in the Colorado River at the present site of said Shoshone diversion dam is less than 1,250 cubic feet per second, there shall, upon demand of the authorized irrigation division engineer or other State authority having charge of the distribution of the waters of this stream, be released from said reservoir as a part of said 52,000 acre-feet, the amount necessary with other waters available, to fill the vested appropriations of water up to the amount concurrently being diverted or withheld from such vested appropriations by the project for diversion to the eastern slope.
(c) Said 100,000 acre-feet shall be stored primarily for power purposes, and the water released shall be available, without charge, to supply existing irrigation and domestic appropriations of water, including the Grand Valley reclamation project, to supply all losses chargeable in the delivery of said 52,000 acre-feet of water, and for future use for domestic purposes and in the irrigation of lands thereafter to be brought under cultivation in western Colorado. It shall be released within the period from April 15 to October 15 of each year as required to supply a sufficient quantity to maintain the specified flow of 1,250 cubic feet per second of water at the present site of said Shoshone diversion dam, provided this amount is not supplied from the 52,000 acre-feet heretofore specified. Water not required for the above purposes shall also be available for disposal to agencies for the development of the shale oil or other industries.
* * *
* * *
Senate Document Number 80, 75th Congress, 1st Session, pp. 2-3, R. Joint Appendix, pp. 65/174-66/175; See also Senate Document Number 80, Senate Miscellaneous Reports, 75th Congress, 1st Session (1937).
The document can be fairly characterized as a compromise between the respective water interests of Colorado's Eastern and Western Slopes. Under its terms, the Eastern Slope was to get the Alva B. Adams transmountain diversion tunnel (diverting from Grand Lake near the town of Granby, Colorado) and several smaller storage facilities and canals to be built on the Eastern Slope. The Western Slope was to get Green Mountain Reservoir, which would store 52,000 acre-feet of water during the spring...
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