HomeMy WebLinkAboutAngoon FERC Preliminary Permit Award Scenery Lake 10-1-09129 FERC ¶62,001
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
City of Angoon Project No.13365-000
ORDER ISSUING PRELIMINARY PERMIT
AND GRANTING PRIORITY TO FILE LICENSE APPLICATION
(Issued:October 1,2009)
1.On February 3,2009,the City of Angoon (Angoon)filed an application for a
three-year preliminary permit under section 4(f)of the Federal Power Act (FPA)1 to
study the feasibility of the proposed Scenery Lake Project No.13365-000.Angoon filed
an amended application for the Scenery Lake Project on June 17,2009.2 The project
would be located on Scenery Creek and Scenery Lake near Petersburg,Alaska.The
project would be located within the Tongass National Forest,which is administered by
the U.S.Forest Service (Forest Service).
2.The proposed project,as amended,would consist of:(1)a 15-foot-high concrete
dam with a spillway impounding Scenery Lake;(2)a lake tap or siphon with fish screen;
(3)a 13,000-foot-long by 8-foot-diameter buried steel penstock;(4)a powerhouse
containing two to four new generating units having a total installed capacity of 30
megawatts;(5)a 7-mile-long,69-kilovolt (kV)and a 22-mile-long,138-kV transmission
line;and (6)appurtenant facilities.The proposed Scenery Lake Project would have an
average annual generation of 130 gigawatt-hours.
I. Background
3.The Commission issued public notices of the original application and the amended
application on June 1,2009,and July 1,2009,respectively.Timely motions to intervene
were filed by the Forest Service,the U.S.Department of Interior (Interior),Kootznoowoo
Incorporated,Petersburg Municipal Power and Light (Petersburg),David Beebe,Suzanne
1 16 U.S.C.§797(f).
2 Angoon originally filed an application on February 5,2009,and supplemented
on May 14,2009.Then on February 2,2009,Angoon amended the permit application,
and filed a supplemented application on June,16,2009.The Commission re-noticed the
application on July 1,2009.
20091001-3002 FERC PDF (Unofficial) 10/01/2009
Project No.P-13365-000 2
West,and Charles Wood.3 Comments were filed by the Forest Service,Interior,Alaska
Department of Fish and Game (Alaska DFG),Petersburg,Ms.West,and Mr.Wood.
II. Discussion
4.Section 4(f)of the FPA authorizes the Commission to issue preliminary permits
for the purpose of enabling prospective applicants for a h ydropower license to secure the
data and perform the acts required b y section 9 of the FPA,4 which in turn sets forth the
material that must accompany an application for license.The purpose of a preliminary
permit is to preserve the right of the permitee to have the first priority in applying for a
license for the project that is being studied.5 Because a permit is issued only to allow the
permitee to investigate the feasibility of a project while the permittee conducts
investigations and secures necessar y data to determine the feasibility of the proposed
project and to prepare a license application,it grants no land-disturbing or other property
rights.6
5.Alaska DFG raised concerns that the proposed project,located in the anadromous
fish reach of Scenery Creek,may affect instream flows in Scenery Creek,stream
temperature,and water quality in the bypass reach and below the tailrace.Mr.Beebe,
Ms.West,and Mr.Wood are also concerned about the potential impact of the proposed
project on anadromous fish,tourism,and the possibility that the power produced by the
proposed project will be exported for corporate profit to the detriment of local
communities (through increased electric rates in Petersburg).Ms.West is also concerned
that the proposed project is located near earthquake faults.As noted,a preliminary
3 Timely,unopposed motions to intervene are granted by operation of Rule 214 of
the Commission’s regulations.18 C.F.R.§385.214 (2009).
4 16 U.S.C.§802 (2006).
5 See,e.g.,Mt.Hope Waterpower Project LLP,116 FERC ¶61,232 at P 4 (2006)
(“The purpose of a preliminary permit is to encourage hydroelectric development by
affording its holder priority of application (i.e.,guaranteed first-to-file status)with
respect to the filing of development applications for the affected site.”).
6 Issuance of this preliminary permit is thus not a major federal action significantly
affecting the quality of the human environment.A permitee can only enter lands it does
not own with the permission of the landholder,and is required to obtain whatever
environmental permits federal,state,and local authorities may require before conducting
any studies.See,e.g.,Three Mile Falls Hydro,LLC,102 FERC ¶61,301 at P 6 (2003);
see also Town of Summersville,W.Va.v.FERC,780 F.2d 1034 (D.C.Cir.1986)
(discussing the nature of preliminary permits).
20091001-3002 FERC PDF (Unofficial) 10/01/2009
Project No.P-13365-000 3
permit does not authorize a permittee to undertake construction or operation of the
proposed project.The purpose of a preliminary permit is to study the feasibility of the
project,including studying the potential impacts of the project.Therefore,comments
concerning impacts caused b y construction or operation of the project are premature at
the permit stage,but can properly be addressed in the licensing process.
6.Mr.Beebe,Ms.West,and Mr.Wood state that Cascade Creek,LLC (Cascade),
has held prior permits for the site,but never developed a project.Whether a prior
permittee successfully developed a proposed project at the project site is not relevant in
determining whether a separate applicant,like Angoon,has properly applied for a permit
under the Commission’s regulations.7 Ms.West also believes that Angoon was courted
by Cascade to be a placeholder for the site,and she suggests that Cascade is using
Angoon to take advantage of Angoon’s municipal preference.Similarly,Petersburg
believes that Angoon’s application is a h ybrid private/municipal application.Angoon is
receiving this permit because it is the only permit applicant for the Scenery Lake site;not
because it states it should receive municipal preference.No entity filed a competing
permit application against Angoon for this site,and municipal preference is not relevant
in a non-competitive proceeding.8 Furthermore,only the named permittee can file a
development application for this site during the term of the permit.9 Development
applications submitted by an y entity other than Angoon for this site will be rejected.
7.In its comments,the Forest Service and Interior acknowledged that a permit
grants only priority of application while a permittee studies the feasibility of a site.The
Forest Service identified for Angoon potential areas that may need study plans should
Angoon file a development application,including current and potential land uses,
archeological sites,the scenic environment,recreation,hydrolog y,fish,soils and
geolog y,minerals,vegetation,and wildlife.Interior identified issues that it expects to be
addressed in any pre-application document submitted b y Angoon,including cumulative
7 See Renaissance Ketchikan Group,LLC,127 FERC ¶61,151 at P 5 (the
Commission does not consider allegations of potential lack of feasibility to develop a
proposed project site in determining whether to issue a permit).
8 New York State Office of Parks,Recreation,and Historic Preservation,22 FERC
¶61,193 (1983).We note that Angoon stated in its application that it is claiming
municipal preference.However,Angoon did not submit evidence of municipal
competence under state law as required by the Commission’s regulations,and thus would
not have been given municipal preference in a competitive proceeding until such
evidence was submitted.18 C.F.R.§4.37(e)(2009).
9 Panther Power P’ship,35 FERC ¶61,028 (1986).
20091001-3002 FERC PDF (Unofficial) 10/01/2009
Project No.P-13365-000 4
impacts on fish and wildlife resources,fish passage and protection,migratory birds,
wetlands,old growth reserves,and beach fringe forest.Potential development applicants
are required to consult with appropriate state and federal resource agencies and affected
Indian tribes,conduct all reasonable studies requested b y the agencies,and solicit
comments on the development applications before they are filed.10
8.During the course of the permit,the Commission expects that the permittee will
carry out prefiling consultation and study development leading to the possible
development of a license application.The prefiling process begins with preparation of a
Notice of Intent (NOI)and Pre-Application Document (PAD)pursuant to sections 5.5
and 5.6 of the Commission’s regulations.11 The permittee must use the Integrated
Licensing Process unless the Commission grants a request to use an alternative process
(Alternative or Traditional Licensing Process).Such a request must accompany the NOI
and PAD and set forth specific information justifying the request.12 Should the permittee
file a development application,notice of the application will be published,and interested
persons and agencies will have an opportunity to intervene and to present their views
concerning the project and the effects of its construction and operation.
9.A preliminary permit is not transferable.The named permittee is the only party
entitled to the priority of the application for license afforded by this preliminary permit.
In order to invoke permit-based priority in any subsequent licensing competition,the
named permittee must file an application for license as the sole applicant,thereb y
evidencing its intent to be the sole licensee and to hold all proprietary rights necessary to
construct,operate,and maintain the proposed project.Should any other parties intend to
hold during the term of any license issued any of these proprietary rights necessar y for
project purposes,they must be included as joint applicants in any application for license
filed.In such an instance,where parties other than the permittee are added as joint
applicants for license,the joint application will not be eligible for any permit-based
priority.13
10 See 18 C.F.R.§4.38 (2009).
11 18 C.F.R.§§5.5 and 5.6 (2009).
12 See 18 C.F.R.§5.3 (2009).
13 See City of Fayetteville,16 FERC ¶61,209 (1981).
20091001-3002 FERC PDF (Unofficial) 10/01/2009
Project No.P-13365-000 5
The Director orders:
(A)A preliminar y permit is issued for the Scenery Lake Hydroelectric Project No.
13365-000 to the City of Angoon for a period effective the first da y of the month in
which this permit is issued,and ending 36 months from the effective date or on the date
that a development application submitted b y the permittee has been accepted for filing,
whichever occurs first.
(B)This preliminary permit is subject to the terms and conditions of Part I of the
Federal Power Act and related regulations.The permit is also subject to Articles 1
through 4,set forth in the attached standard form P-1.
(C)This order is issued under authority delegated to the Director and constitutes
final agency action.Requests for rehearing by the Commission may be filed within 30
days from the date of issuance of this order,pursuant to 18 C.F.R.§385.713.
Jennifer Hill,Branch Chief
Hydro West Branch 1
Division of Hydropower Licensing
20091001-3002 FERC PDF (Unofficial) 10/01/2009
Project No.P-13365-000 6
Form P-1 (Revised April 2009)
FEDERAL ENERGY REGULATORY COMMISSION
TERMS AND CONDITIONS OF
PRELIMINARY PERMIT
Article 1.The purpose of the permit is to maintain priority of application for a
license during the term of the permit while the permittee conducts investigations and
secures data necessary to determine the feasibility of the proposed project and,if the
project is found to be feasible,prepares an acceptable application for license.In the
course of whatever field studies the permittee undertakes,the permittee shall at all times
exercise appropriate measures to prevent irreparable damage to the environment of the
proposed project.This permit does not authorize the permittee to conduct any ground-
disturbing activities or grant a right of entry onto any lands.The permittee must obtain
any necessary authorizations and comply with any applicable laws and regulations to
conduct any field studies.
Article 2.The permit is not transferable and may,after notice and opportunity for
hearing,be canceled b y order of the Commission upon failure of the permittee to
prosecute diligently the activities for which a permit is issued,or for any other good
cause shown.
Article 3.The priority granted under the permit shall be lost if the permit is
canceled pursuant to Article 2 of this permit,or if the permittee fails,on or before the
expiration date of the permit,to file with the Commission an application for license for
the proposed project in conformity with the Commission's rules and regulations then in
effect.
Article 4.At the close of each six-month period from the effective date of this
permit,the permittee shall file four copies of a progress report with the Secretary,Federal
Energ y Regulatory Commission,888 First Street,N.E.,Washington,D.C.20426;and
shall serve a cop y on the intervenors in this proceeding.The report shall describe,for
that report period,the nature and timing of what the permittee has done under the pre-
filing requirements of 18 C.F.R. sections 4.38 and 5.1-5.31 and other applicable
regulations;and,where studies require access to and use of land not owned by the
permittee,the status of the permittee's efforts to obtain permission to access and use the
land.
20091001-3002 FERC PDF (Unofficial) 10/01/2009
Document Content(s)
P-13365-000PPorder.DOC................................................1-6
20091001-3002 FERC PDF (Unofficial) 10/01/2009