HomeMy WebLinkAboutFERC Angoon Ruth Preliminary Permit order 11-5-09129 FERC ¶62,101
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
City of Angoon
City of Petersburg
City of Wrangell
Cascade Creek,LLC
Project No.
Project No.
Project No.
Project No.
13366-000
13364-000
13363-000
12619-002
ORDER ISSUING PRELIMINARY PERMIT,
DENYING COMPETING APPLICATIONS,
AND GRANTING PRIORITY TO FILE LICENSE APPLICATION
(Issued:November 5,2009)
1.On February 3,2009,the City of Angoon,Alaska (Angoon);Petersburg
Municipal Power and Light (Petersburg);the City and Borough of Wrangell,Alaska
(Wrangell);and Cascade Creek,LLC (Cascade)filed applications,pursuant to section
4(f)of the Federal Power Act (FPA),1 to study the feasibility of the proposed Ruth Lake
Project,to be located on Ruth Lake and Delta Creek,in an unorganized Borough near
Petersburg,Alaska.As discussed below,this order issues a preliminary permit to
Angoon,and denies the competing permit applications from Petersburg,Wrangell,and
Cascade.
I.Proposals
2.Angoon’s proposed Ruth Lake Project No.13366-000 would consist of:(1)a
proposed 170-foot-high concrete arched dam at the exit of the natural Ruth Lake;(2)the
existing 130-acre Ruth Lake (at a current surface elevation of 1,350 feet above mean sea
level (msl))that would be impounded b y the proposed dam to provide an estimated
storage capacity of 17,000 acre-feet at a surface elevation of about 1,520 feet msl;(3)a
proposed 12,600-foot-long,6-to 12-foot-diameter combination bored tunnel and steel
penstock;(4)a proposed powerhouse containing three generating units and having a total
installed capacity of 20 megawatts (MW);(5)a proposed tailrace channel up to 600 feet
long;(6)a proposed 20-mile-long,138-kilovolt (kV)transmission line;(7)a proposed
2.8-mile-long access road;and (8)appurtenant facilities.The project would have an
average annual generation of about 70 gigawatt-hours (GWh),which would be sold to
1 16 U.S.C.§797(f)(2006).
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Project Nos.13366-000,13364-000,13363-000,12619-002 2
local utilities currently serving the communities of Petersburg and Wrangell,with
eventual proposed service to the communities of Ketchikan and Kake.The proposed
Ruth Lake Project would be located partially on federal lands in the Tongass National
Forest,which is administered b y the U.S.Forest Service (Forest Service).
3.Petersburg’s proposed Ruth Lake Project No.13364-000 would consist of:(1)a
proposed 200-foot-high concrete-faced,rock-fill dam at the exit of the natural Ruth Lake;
(2)the existing Ruth Lake that would be impounded by the proposed dam to provide an
estimated storage capacity of 17,000 acre-feet at a surface elevation of about 1,560 feet
msl;(3)a proposed 3,500-foot-long,10-foot-diameter tunnel and a 7,800-foot-long,6-
foot-diameter steel penstock;(4)a proposed powerhouse containing three generating
units having a total installed capacity of 20 MW;(5)a proposed open-channel tailrace;
(6)a proposed return flow facility at the base of the dam for fish passage;(7)about 3.2
miles of proposed access roads;and (8)appurtenant facilities.2 Petersburg’s proposed
Ruth Lake Project would have an average annual generation of 70 GWh,which would be
used within Petersburg’s system,with surplus power provided to the interconnected
southern Southeast Alaska regional utilities.The proposed Ruth Lake Project would be
located partially on federal lands in the Tongass National Forest.
4.Wrangell’s proposed Ruth Lake Project No.13363-000 would consist of:(1)a
proposed 170-foot-high concrete arch dam at the exit of the natural Ruth Lake;(2)the
existing Ruth Lake that would be impounded by the proposed dam to provide an
estimated storage capacity of 17,000 acre-feet at a surface elevation of about 1,520 feet
msl;(3)a proposed 12,600-foot-long,6-to 12-foot-diameter combination bored tunnel
and steel penstock;(4)a proposed powerhouse containing three generating units having
an installed capacity of 20 MW;(5)a proposed tailrace channel up to 600 feet-long;(6)a
20-mile-long,138-kV transmission line;(7)a proposed 2.8-mile-long access road;and
(8)appurtenant facilities.The proposed Ruth Lake Project would have an average annual
generation of 70 GWh,which would be used within Wrangell,with surplus power sold to
local utilities.The proposed Ruth Lake Project would be located partially on federal
lands of the Tongass National Forest.
5.Cascade’s proposed Ruth Lake Project No.12619-002 would consist of:(1)a
proposed 170-foot-high concrete arch dam at the exit of the natural Ruth Lake;(2)the
existing Ruth Lake that would be impounded by the proposed dam to provide an
estimated storage capacity of 17,000 acre-feet at a surface elevation of about 1,520 feet
msl;(3)a proposed 12,600-foot-long,6-to 12-foot-diameter combination bored tunnel
and steel penstock;(4)a proposed powerhouse containing three generating units having a
2 In Exhibit 1 of its preliminary permit application,Petersburg states that there
would be no primar y transmission line because the intertie to the area electrical grid
would occur at a non-project substation to be located at the proposed powerhouse.
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Project Nos.13366-000,13364-000,13363-000,12619-002 3
total installed capacity of 20 MW;(5)a proposed tailrace channel up to 600 feet long;(6)
a proposed 20-mile-long,138-kV transmission line;(7)a proposed 2.8-mile-long new
access road;and (8)appurtenant facilities.Cascade’s proposed Ruth Lake Project would
have an average annual generation of 70 GWh,which would be sold to markets in
southeast Alaska,Canada,and the continental United States.Cascade is also exploring
alternatives that would connect their proposed Ruth Lake Project to their proposed
Cascade Creek Project in Docket No.12495-000.The proposed Ruth Lake Project
would be located partially on federal lands in the Tongass National Forest.
II.Background
6.The four applications for the proposed Ruth Lake H ydroelectric Project were filed
on February 3,2009.On February 18,2009,the Commission issued public notice
accepting the four applications for filing and soliciting comments,motions to intervene,
and competing applications.Three of the applicants –Angoon,Petersburg,and
Wrangell –claim municipal preference pursuant to FPA section 7(a).3
7.Timely motions to intervene were filed b y:Forest Service;U.S.National Oceanic
and Atmospheric Administration,National Marine Fisheries Service (NMFS);Alaska
Department of Natural Resources,Division of Mining,Land,and Water,Water
Resources Section;Alaska Department of Natural Resources,Division of Mining,Land,
and Water,Southeast Region Land Office;Cascade;City of Ketchikan d/b/a Ketchikan
Public Utilities (Ketchikan);Kake Tribal Corporation (Kake);Kootznoowoo
Incorporated (Kootznoowoo);Kwaan Power and Energy (Kwaan);Petersburg;
Petersburg Indian Association;Southeast Alaska Power Agency;Wrangell;and Robert
W.Loescher.4
8.Comments were filed by the U.S.Department of the Interior (Interior),Cascade,
Kake,Kootznoowoo,Kwaan,Petersburg,Petersburg Indian Association,Southeast
Alaska Power Agenc y,Wrangell,David Beebe,David Holmes,Mr.Loescher,Martha
Smith,Suzanne West,and Charles E.Wood.
9.On July 23,2009,the Commission issued Notice Announcing Preliminary Permit
Procedures for a random drawing to be held to establish priority among the three
municipal applicants –Angoon,Petersburg,and Wrangell –to be used in the event the
Commission concluded that none of the three applicant’s plans was better adapted than
3 16 U.S.C.§800(a)(2006).
4 Timely,unopposed motions to intervene are granted by operation of Rule 214 of
the Commission’s regulations.18 C.F.R.§385.214(a)(3)(2009).
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Project Nos.13366-000,13364-000,13363-000,12619-002 4
the others.5 The drawing was held on August 12,2009,and the results were noticed the
same day with the following order of priority:(1)Angoon;(2)Petersburg;and (3)
Wrangell.
III.Discussion
10.Since none of the applicants has presented a plan based on detailed studies,there
is no basis for concluding that any one applicant’s plan would be superior to the plans of
the others.Where at least one of the competing applicants is a municipality,and the
others are not,and the plans of the municipality are at least as well adapted to develop,
conserve,and utilize in the public interest the water resources of the region,the
Commission favors the municipality.6 Where equally adapted plans are presented b y
municipal applicants,the Commission issues the permit to the applicant with the earliest
application acceptance date.7
11.In this case,Angoon,Petersburg,and Wrangell are all municipalities with priority
over Cascade.Because Angoon,Petersburg,and Wrangell filed at the same time,the
Commission determined priority among the three municipalities through the random
drawing.Based on the results of the drawing,the preliminary permit is issued to
Angoon.
A.Commission Rules Establishing Filing Dates and Times
12.Kootznoowoo and Mr.Loescher commented that the Commission should give
preference to the municipalities that first physically filed their applications,rather than to
the first electronically-filed applications, because rural communities are disadvantaged b y
less consistent internet access to electronically file.
13.Cascade’s former permit for the Ruth Lake site,in Project No.12619-000,expired
36 months from the first day of the month in which the permit was issued (February
2006).Rule 2007(a)(2)of the Commission’s regulations states that if the last day of a
time period falls on a weekend,the period does not end until the close of Commission
business on the next business day.8 Because Cascade’s permit expired on Saturday
5 128 FERC ¶61,077 (2009).
6 18 C.F.R.§4.37(b)(3)(2009).
7 See 18 C.F.R.§4.37(b)(2)(2009).The Commission has held that,where
otherwise indistinguishable permit applications are filed on the same date,the
Commission will award the permit to the applicant whose application was filed first.See,
e.g.,BPUS Generation Development LLC ,126 FERC ¶61,132 (2009).
8 18 C.F.R.§385.2007(a)(2)(2009).
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January 31,2009,the effective expiration of the permit occurred at 5:00 p.m.on Monday
February 2,2009.9 Therefore,the first time any applicant could file a permit for the Ruth
Lake site was 8:30 a.m.on Tuesday Februar y 3,2009.
14.All four applications were filed electronically between 5:00 p.m.on Monday
February 2,2009,and 8:30 a.m.on Tuesday February 3,2009.10 Several applicants filed
applications in person as well;however,the applications submitted electronically were
the earliest filed for each applicant.Therefore,despite commenters’concerns that some
applicants ma y have been disadvantaged by intermittent internet service,in this case,all
four applications were in fact deemed electronically filed at the first available moment
after the expiration of the prior permit.Moreover,neither Kootznoowoo nor Mr.
Loescher provides evidence supporting the contention that any particular applicant was
placed at a disadvantage in these proceedings.
B.Special Tiebreaker Procedures
15.Wrangell objected to the decision to hold a random drawing and instead requested
that the Commission award it the permit because it was the first to physically file an
application.Kootznoowoo also requested that preference be determined b y the order of
the physical filing.
16.We decline to adopt as a tiebreaker the ph ysical filing times of the applicants.The
incorporation of electronic filing into the Commission’s procedures was meant to make
such filing easier and more efficient.The Commission’s regulations do not suggest that a
paper filing has more merit than,or should be treated differently from,an electronic
filing.There is no basis for establishing such a rule.
17.Mr.Wood questioned the Commission’s authority to establish a tiebreaker b y
random drawing.FPA section 309 gives the Commission the power to perform any act it
may find necessary or appropriate to carr y out the provisions of the FPA.11 As discussed
in the July 23 notice,the Commission found it necessary to determine priority by an
alternative method in cases such as this when the first-to-file tiebreaker was not
determinative.
9 The Commission is open each day from 8:30 a.m.to 5:00 p.m.,except Saturda ys,
Sunda ys,and holidays.18 C.F.R.§375.101(c)(2009).
10 Any document received after regular business hours is considered filed at
8:30 a.m.on the next regular business day.18 C.F.R.§385.2001(a)(2)(2009).
11 16 U.S.C.§825h (2006).
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18.The City of Petersburg filed a motion requesting that the Commission consider
Wrangell’s and Angoon’s applications as one application for the purposes of the random
tiebreaker because they have “teamed up to work together on the Ruth Lake Project.”
Wrangell and Angoon each submitted separate preliminary permit applications to the
Commission,and did not file as joint applicants.Therefore,we deny Petersburg’s motion
to consider Angoon and Wrangell as one applicant for purposes of the drawing.Angoon
and Wrangell each separately filed a preliminary permit application,and each is
considered a distinct entity.The applicant who receives the permit is solely responsible
for the obligations under the permit,and only the named permittee may invoke permit-
based priority in filing a development application.12
C.Better Adapted Application
19.If the Commission will not consider Wrangell’s and Angoon’s applications as one,
Petersburg requested that the Commission evaluate each application and award
preference based on which application is best adapted to develop the project.Many other
commenters also asserted that one application was better adapted than the others based on
the need and market for power in the region;the applicant’s ability to transmit power,
finance the project,and construct and operate the project;the size of the potential service
area;the degree of public support for each applicant;and each applicant’s proximity to
Ruth Lake.
20.While these factors may be relevant in determining the ultimate viability of a
project,the y are not relevant at the preliminary permit stage.13 The Commission has
consistently found that a second-in-time applicant can overcome the first-in-time
12 This is not the type of issue examined at the permit stage.See,e.g.,Symbiotics,
LLC,97 FERC ¶61,113 (2001).
13 See,e.g.,Robert Hoe,54 FERC ¶61,130 at 61,429 (1991)(neither the ability of
an applicant to finance the project nor the likely speed of subsequent development of the
licensed project is a determinative consideration at the permit stage);Pacific Water &
Power,Inc.,50 FERC ¶61,294 at 61,945 (1990)(any allegation as to an applicant’s
technical or managerial ability to operate a hydroelectric project is premature at the
permit stage);Gregory Wilcox,25 FERC ¶61,434 (1983)(imposing a requirement that a
permit applicant establish the financial ability to implement a potential future licensing
proposal at the preliminar y permit stage is not justified because the very purpose of the
preliminary permit is to allow the permittee to take steps to make itself a fully qualified
license applicant,including making the necessary financial arrangements);Chain Dam
Hydroelectric Corp.,22 FERC ¶61,183 (1983)(at the permit stage,the Commission
does not attach an y decisional significance to an applicant’s geographical distance from a
site).
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preference only by submitting detailed information substantiating the superiority of the
proposal.14 In this case,none of the applicants has submitted an application based on
detailed plans or studies.Therefore,we cannot determine that one applicant’s plans are
better adapted than the others to develop the water resources of the region.
D.Hidden Hybrids
21.Petersburg,Ms.Smith,and Mr.Wood allege that the preliminary permit
applications filed b y Angoon and Wrangell constitute hidden hybrids,in which Cascade
is the undisclosed non-municipal interest.As discussed above,Angoon and Wrangell
each filed independent permit applications,and neither filed as a joint applicant with
Cascade.Therefore,neither will be considered a non-municipal applicant in this
proceeding.15 In any event,it is Commission policy not to investigate allegations of
hidden hybrid applications at the preliminary permit stage.16
E. Construction and Operation of the Project
22.Interior expressed concern that project construction may adversely affect fish,
wildlife,recreation,and scenery,and possibly negatively affect cultural resources and
historic properties.Southeast Alaska Power Agency and Ketchikan commented that the
development and delivery of power from the Ruth Lake Project onto the power agency’s
transmission lines may affect the reliable delivery of power from the agency’s projects to
the municipalities of Ketchikan,Petersburg,and Wrangell.Kake and Kwaan commented
that the community of Kake would pay higher electric costs if Petersburg were to develop
a project at the site rather than Angoon,Wrangell,or Cascade.A preliminary permit
does not authorize a permittee to undertake any construction.Rather,the purpose of a
preliminary permit is to study the feasibility of the project,including studying these
potential impacts.Issues related to project impacts are premature at the permit stage,but
can properly be addressed during the licensing process.17
14 See Sullivan Island Associates,53 FERC ¶61,129 (1992);McCallum Hydro
Enterprises,38 FERC ¶61,068 (1987).
15 Joint municipal/non-municipal applicants do not receive municipal preference.
City of Fayetteville,N.C.,16 FERC ¶61,209 (1981).
16 See,e.g.,Symbiotics,LLC,97 FERC ¶61,113 (2001);Youghiogheny
Hydroelectric Authority,47 FERC ¶61,280 at 61,994 (1989).
17 See,e.g.,Town of Bristol,N.H.,96 FERC ¶61,282 (2001).
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F. Permit Information
23.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 data
and perform acts required by FPA section 9,18 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 permit holder to have first priority in applying for a license for
the project that is being studied.19 Because a permit is issued only to allow the permit
holder 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.20
24.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.21 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.22 Should the permittee
file a development application,notice of the application will be published,and interested
18 16 U.S.C.§802 (2006).
19 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.”)
20 Thus,a permittee 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 nature of preliminary permits).For
these reasons,issuance of this preliminary permit is not a major federal action
significantly affecting the quality of the human environment.
21 18 C.F.R.§§5.5 and 5.6 (2009).
22 See 18 C.F.R.§5.3 (2009).
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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.
25.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.23
The Director orders:
(A)A preliminar y permit is issued to the City of Angoon for the Ruth Lake
Hydroelectric Project No.13366-000,for a period effective the first day of the month in
which this permit is issued,and ending either 36 months from the effective date or on the
date that a development application submitted by the permittee has been accepted for
filing,whichever occurs first.
(B)The competing applications for preliminary permit filed b y Petersburg
Municipal Power and Light for Project No.13364-000;the City and Borough of
Wrangell for Project No.13363-000;and Cascade Creek,LLC,for Project
No.12619-002 are denied.
(C)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.
23 See City of Fayetteville,16 FERC ¶61,209 (1981).
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(D)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
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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.
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Document Content(s)
P-13366-000etalorder.DOC..............................................1-11
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