[Federal Register Volume 62, Number 32 (Tuesday, February 18, 1997)]
[Notices]
[Page 7224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3858]
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DEPARTMENT OF ENERGY
[Project No. 2082-013]
PacifiCorp; Notice Establishing Comment Period For Petition for
Declaratory Order
February 11, 1997.
On December 3, 1996, PacifiCorp filed a petition for declaratory
order, pursuant to Rule 207 of the Commission's regulations, 18 CFR
385.207, to remove uncertainty and resolve a dispute involving the
scope of a minimum flow requirement under its license for the Klamath
Project No. 2082. The petition's statements in support of the relief
requested are summarized in this notice.
The Klamath Project consists of six hydroelectric developments
located on the Klamath River and one on a tributary of that river, Fall
Creek, in Oregon and California. Under contract with the U.S.
Department of the Interior's Bureau of Reclamation (Bureau), PacifiCorp
also operates the Bureau's Link River Dam, located on Upper Klamath
Lake in Oregon, which is the source of the water used to generate power
at the six Klamath River developments. Water behind the Link River Dam
is also used for irrigation in the Klamath Basin, and the contract
requires PacifiCorp to make water available to the Bureau for
irrigation purposes.
In 1954, the Commission determined that the project was required to
be licensed under the Federal Power Act. In 1961, the Commission
amended the project license to require PacifiCorp to release into the
streambed below Iron Gate Dam, the development furthest downstream, a
minimum flow of 1300 cubic feet per second (cfs) of water from
September 1 through April 30 of each year. PacifiCorp claims that, to
meet that requirement, it must release sufficient water from Upper
Klamath Lake through the Link River Dam.
PacifiCorp states that, in recent years, pressure has been
increasing to ensure the availability of water both for species of fish
living in Upper Klamath Lake that have been listed as endangered under
the Endangered Species Act and for anadromous fish species downstream
of Iron Gate Dam that have been proposed to be listed under that act.
In addition, the State of California Department of Fish and Game has
requested that above-normal flows be provided downstream of Iron Gate
Dam at various times of the year to enhance the habitat for anadromous
fish downstream of that development, and the Bureau has been
coordinating its responsibilities regarding such releases with
California Fish and Game, the U.S. Department of Commerce's National
Marine Fisheries Service, the U.S. Department of the Interior's Fish
and Wildlife Service (FWS), affected Indian tribes, irrigators, and
PacifiCorp.
During the 1995-96 irrigation season, irrigators in the Klamath
Basin requested that the Bureau and PacifiCorp not release more than
1000 cfs from the Link River Dam after September 1, 1996, to assure the
refill of Upper Klamath Lake during the winter of 1996-97. FWS and the
Bureau instructed PacifiCorp not to release more than 1000 cfs from the
Link River Dam into early September 1996. When PacifiCorp, upon
direction from the Bureau, began releasing 1300 cfs from behind Link
River Dam on approximately September 4, several irrigators, alleging
third-party beneficiary rights under the contract, threatened
litigation against PacifiCorp.
PacifiCorp states that the position and threats of the irrigators
cause uncertainty regarding its rights and obligations under its
license, specifically, its obligation to provide minimum flows
downstream of the Iron Gate development. PacifiCorp requests issuance
of a declaratory order removing the uncertainty regarding the nature
and scope of this obligation and the related issue of compliance with
the requests and directives of the FWS and the Bureau regarding
PacifiCorp's operations of the Link River Dam. PacifiCorp requests a
determination as to whether it must continue to release at least 1300
cfs from the Iron Gate and Link River Dams under the circumstances
presented. It seeks a declaratory order on these issues for the purpose
of clarifying any subsequent analysis regarding preemption of a state
breach of contract action by federal regulation.
Pursuant to Rule 213(d) of the Commission's regulations, 18 CFR
385.213(d)(2), answers to petitions are due within 30 days after
filing, unless otherwise ordered. To ensure adequate notice to all
interested persons, the Commission staff has determined that notice of
the petition for a declaratory order should be published and that the
deadline for filing an answer, comments, protests, or petitions to
intervene in connection with the licensee's petition for a declaratory
order should be as established in this notice.
Any person may file an answer, comments, a protest, or a motion to
intervene with respect to PacifiCorp's petition in accordance with the
requirements of the Rules and Practice and Procedure, 18 CFR 385.210,
385.211, 385.213, and 385.214. In determining the appropriate action to
take with respect to the petition, the Commission will consider all
protests or other comments filed, but only those who file a motion to
intervene in accordance with the Commission's Rules may become a party
to the proceeding. Any answers, comments, protests, or motions to
intervene must be filed by March 20, 1997; and must bear in all capital
letters the title ``ANSWER,'' ``COMMENTS,'' ``PROTEST'', or ``MOTION TO
INTERVENE'', as applicable, and ``Project No. 2082-013.'' Send the
filings (original and 14 copies) to: the Secretary, Federal Energy
Regulatory Commission, 888 1st Street, N.E., Washington, D.C. 20426. A
copy of any filing must also be served upon each representative of the
licensee specified in its petition. Copies of the petition are on file
with the Commission and are available for inspection in the Public
Reference Room.
Lois D. Cashell,
Secretary.
[FR Doc. 97-3858 Filed 2-14-97; 8:45 am]
BILLING CODE 65717-01-M
