HomeMy WebLinkAbout150909-FERC_FindingNonJuris_3040(30868484) UNITED STATES OF AMERICA 152 FERC ¶ 62,160
FEDERAL ENERGY REGULATORY COMMISSION
Pedro Bay Village Council Docket No.DI14-6-000
ORDER RULING ON DECLARATION OF INTENTION
AND FINDING LICENSING NOT REQUIRED
(Issued September 9, 2015)
1.On July 22, 2014, the Pedro Bay Village Council (Pedro Bay) filed a Declaration
of Intention (DI) concerning the proposed Knutson Creek Hydroelectric Project, to be
located on Knutson Creek in the unincorporated Village of Pedro Bay, in Lake and
Peninsula Borough, Alaska.
PROJECT DESCRIPTION
2.The proposed 200 kilowatt project would consist of: (1) a 7-foot-high, 560-foot-
long combination reinforced concrete weir and rock faced earthen dike diversion
structure at river mile (RM) 2.59; (2) a screened intake integrated into the reinforced
concrete portion of the diversion; (3) a 7,100-foot-long, 24-inch-diameter penstock; (4) a
pipe and trail bridge for the penstock crossing Knutson Creek at RM 1.79; (5) a
powerhouse containing a single cross‐flow turbine coupled to a single phase synchronous
generator; (6) a 1,400-foot-long tailrace that would discharge directly into Knutson Creek
at RM 1.10; (7) a buried 9,900-foot-long, 7,200-volt electric cable to interconnect with
Pedro Bay’s existing power grid; and (8) appurtenant facilities.
PUBLIC NOTICE
3.On August 22, 2014, Commission staff issued notice of the DI. The notice
established September 22, 2014, as the deadline for protests, comments, and motions to
intervene. On September 22, 2014, Pedro Bay filed a fisheries survey of Knutson Creek
conducted by a third-party contractor in 2012 (2012 Study) to demonstrate that the
project would not affect interstate commerce. On that same day, the Alaska Department
of Fish and Game (Alaska DFG) filed a motion to intervene and comments. Alaska
DFG’s comments challenge the 2012 Study’s completeness and state that the proposed
project may affect interstate commerce as the project will impact the sockeye salmon
commercial fishery, the rainbow trout sport fishery, and subsistence harvests in Knutson
Creek. On October 6, 2014, the applicant filed comments responding to Alaska DFG’s
motion and attaching an Alaska DFG news release on the Bristol Bay salmon season to
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reaffirm the claim that the project would not affect interstate commerce. No other
protests, comments, or motions to intervene were filed.
JURISDICTION
4.Pursuant to section 23(b)(1) of the Federal Power Act (FPA), 16 U.S.C. § 817(1)
(2012), a non-federal hydroelectric project must be licensed (unless it has a still-valid
pre-1920 federal permit) if it:
(a) is located on a navigable water of the United States;
(b) occupies lands or reservations of the United States;
(c) utilizes surplus water or waterpower from a government dam; or
(d) is located on a stream over which Congress has Commerce Clause jurisdiction, is
constructed or modified on or after August 26, 1935, and affects the interests of
interstate or foreign commerce.
DISCUSSION
5.The project would not occupy any public lands or reservations of the United States
or use surplus water or waterpower from a Federal government dam. Available evidence
suggests that Knutson Creek is not navigable at the project site. The project would use
water from a Commerce Clause stream1 as Knutson Creek flows into Lake Iliamna, a
navigable water of the United States, which feeds the Kvichak River that empties into
Bristol Bay.2 The project would also be constructed after August 26, 1935.
6.The project would connect to the Village of Pedro Bay’s distribution system,
which is internal to the State of Alaska and not connected to an interstate electric grid.
Alaska DFG argues that the project’s location on Knutson Creek, an anadromous stream,
may affect the sockeye salmon habitat within the waterway and thus, the sockeye salmon
commercial fisheries in Bristol Bay and the Naknek-Kvichak District. Specifically,
Alaska DFG states that the project’s diversion structure would isolate several miles of
upstream sockeye habitat. Alaska DFG adds that the project would reduce flows in the
downstream anadromous area within the 1.49-mile bypass reach,3 and that these reduced
1 For purposes of FPA section 23(b)(1), Commerce Clause streams are the
headwaters and tributaries of navigable waters of the United States. See FPC v. Union
Electric Co., 381 U.S. 90, 94-96 (1965).
2 See Iliamna-Newhalen-Nondalton Electric Cooperative, Inc., 58 FERC ¶ 61,065,
at n.34 (1992).
3 The Knutson Creek Project will divert flow at RM 2.59 and discharge water at
RM 1.10.
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flows could affect incubation success as dewatered redds (salmon spawning nests) may
freeze during the winter.
7.In determining whether a project’s effect on anadromous fish may affect the
interests of interstate commerce, the Commission must determine whether the project
“can be shown to have a real and substantial effect on anadromous fish, or that the project
belongs to a class of projects whose cumulative activities have a real and substantial
effect on anadromous fish.”4 On average, the Bristol Bay commercial fishery annually
harvests approximately 24.8 million sockeye salmon.5 Of that average annual total
harvest, approximately 7.9 million sockeye salmon are harvested from the Naknek-
Kvichak District.6 The historical annual salmon population in Knutson Creek varies
between the low-hundreds and low-thousands, contributing less than one percent of the
commercial harvest of sockeye salmon in the Bristol Bay commercial fishery.
8.Pedro Bay cites language in Alaska Power & Telephone Company7 to argue that,
because the project would affect less than one percent of the sockeye salmon fishery, the
project would not substantially affect interstate or foreign commerce. In that case, the
Commission found than an eight percent reduction in a District-level commercial fishery
harvest caused by the Gartina Creek Hydroelectric Project was “clearly large enough to
be considered real and substantial,” but did not provide more specific guidance for
determining significance for purpose of evaluating effects on commerce.8 As Pedro Bay
notes, however, the Commission also observed that in its prior decisions involving
proposed hydroelectric projects in Alaska, the Commission had found that projects that
could potentially affect less than one percent of the fish populations considered would not
significantly affect commerce by affecting anadromous fish.9 Therefore, we agree with
Pedro Bay that while the proposed project would affect anadromous fish by diverting
water away from Knutson Creek, it would not have a substantial effect on the fishery.
10
4 Alaska Power Company, 82 FERC ¶ 61,331, at 62,313 (1998).
5 Pedro Bay October 6, 2014 Supplemental Information at 35, Attachment 5
(Alaska DFG News Release, 2014 Bristol Bay Salmon Season (Sept. 3, 2014).
6 Id.
7 Alaska Power & Tel. Co., 101 FERC ¶ 61,191, at 61,777 (2002).
8 Id. at P 13.
9 See id.
10 We thus disagree with Alaska DFG that this case is similar to the proceedings
involving the Gartina Creek Hydroelectric Project, as discussed above, and Neck Lake
Hydroelectric Project where the Commission found that the proposed projects would
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9.Without providing specific details, Alaska DFG also asserts that the project may
affect interstate and foreign commerce by affecting rainbow trout sport fishing. Alaska
DFG notes that those sport fishers access angling areas by boat and float plane. Pedro
Bay states that it is unaware of any sport fishing activity for rainbow trout up Knutson
Creek and assumes that sport fishing is unpopular at Knutson Creek because other areas
within the region provide better sport fishing experiences. Pedro Bay adds that Knutson
Creek is not accessible by floatplane, boat, or even all-terrain vehicle, but is accessible by
foot through dense brush or by helicopter. Without more information, Commission staff
cannot estimate the potential effect of the project on rainbow trout sport fishing.
Therefore, we are unable to determine whether this potential effect could constitute a real
and substantial effect on commerce.
10.In addition, Alaska DFG states that many residents of the region depend on
salmon, trout, and whitefish from this watershed for subsistence harvests. Although
subsistence use is not commercial, it could potentially affect commerce by affecting
purchased foods, almost none of which are manufactured in Alaska. However, there is
insufficient evidence in the record to estimate the potential effect of the project on
subsistence use. Therefore, we are unable to determine whether this potential effect
could constitute a real and substantial effect on commerce.
CONCLUSION
11.Consequently, section 23(b)(1) of the FPA does not require licensing of the
proposed Knutson Creek Hydroelectric Project. If evidence sufficient to require licensing
is found in the future, section 23(b)(1) would require licensing. Under section 4(g) of the
FPA, the project owner could then be required to apply for a license.
The Director orders:
(A) Section 23(b)(1) of the Federal Power Act does not require licensing of the
proposed Knutson Creek Hydroelectric Project. This order is issued without prejudice to
any future determination upon new or additional evidence that licensing is required.
(B) This order constitutes final agency action. Any party may file a request for
rehearing of this order within 30 days from the date of its issuance, as provided in
section 313(a) of the FPA, 16 U.S.C. § 825l (2012), and the Commission’s regulations at
18 C.F.R. § 385.713 (2015). The filing of a request for rehearing does not operate as a
affect 8 percent and more than 20 percent, respectively, of the fisheries considered. See
id.; Alaska Power & Tel. Co., 133 FERC ¶ 62,121, at P 11 (2010).
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stay of the effective date of this order, or of any other date specified in this order. A
party’s failure to file a request for rehearing shall constitute acceptance of this order.
Steve Hocking, Chief
Environmental and Project Review Branch
Division of Hydropower Administration
and Compliance
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Document Content(s)
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