E6-7188. Herbert Butler, et al., Complainants v. South Carolina Public Service Authority, Respondent; Notice Dismissing Complaint

May 3, 2006.

On February 21, 2006, Herbert Butler, et al. (Complainants) filed a complaint against South Carolina Public Service Authority (Public Service), licensee for the Santee-Cooper Project No. 199, located on the Santee and Cooper Rivers, in Berkeley, Calhoun, Clarendon, Orangeburg, and Sumter Counties, South Carolina.^[1] On March 31, 2006, Public Service filed an answer to the complaint. On March 30, 2006, the United States Army Corps of Engineers (Corps) filed comments.

The Complainants contend that Public Service has and continues to operate the project in violation of its license so as to cause unnecessary floods on the Complainants land. They have asked the Commission to investigate and to stop Public Service from its continuing violations of its license. The Complainants specifically allege that it is Public Service's operation of the Corps' St. Stephen Hydroplant ^[2] that is causing flooding on their land.^[3]

The Commission's regulations provide that a complaint may be filed seeking Commission action against any person alleged to be “in contravention or violation of any statute, rule, order, or other law administered by the Commission or for any other alleged wrong over which the Commission may have jurisdiction.” ^[4] The regulations further provide that the complaint must [c]learly identify the action or inaction which is alleged to violate applicable statutory standards or regulatory requirements.” ^[5]

The crux of Complainants' allegations is that flooding has been caused by the operation of the Corps' St. Stephen's project. Because the Corps' project is a Federal project, which is outside the Commission's jurisdiction, and since the Complainants do not allege that Public Service is in violation of its license, the Federal Power Act, or the Commission's regulations, the complaint must be dismissed.

Magalie R. Salas,

Secretary.

Footnotes

1.  The existing 118-megawatt (MW) Santee Cooper Project consists of: The 2.2 mile-long Santee Dam on the Santee River; the 1.2 mile-long Pinopolis Dam on the Cooper River; the 5-mile-long Diversion Canal which connects Lake Marion and Lake Moultrie; the Santee Spillway Hydroelectric Station with one 2.0-MW turbine; the Pinopolis Hydroelectric Station with one 8.0-MW turbine and four 27.0-MW turbines; the 43-mile-long Lake Marion Reservoir, located on the Santee River; and the 12-mile-long Lake Moultrie Reservoir, located on the Cooper River.

2.  The St. Stephen Hydroplant is a Corps-owned power project that is operated by Public Service. Congress authorized the construction of a rediversion project which included a rediversion canal to connect Lake Moultrie to the Santee River, reducing the flow of fresh water into Charleston Harbor through the Cooper River. The St. Stephen powerhouse was built as part of this project. Public Service operates the St. Stephen's project pursuant to a 1977 contract between it and the Corps.

3.  Complainants also allege, without elaboration, that Public Service violated Articles 38, 40 and 53 of its license. Article 38 requires Public Service to implement and modify when appropriate the emergency action plan on file with the Commission. The plan is designed to provide an early warning to upstream and downstream inhabitants and property owners if there should be an impending or actual sudden release of water caused by an accident to, or failure of, the Santee Cooper Project works. It also requires Public Service to monitor upstream or downstream conditions for the purpose of making appropriate changes to the emergency action plan. Article 40 requires the installation and operation of notification and warning devices that may be needed to warn the public of fluctuations in flow from the Santee Cooper Project. Article 53 requires Public Service to obtain flowage easements over land inundated by project waters within the Santee Cooper Project boundary. Complainants have not demonstrated any violation of these articles, nor of any other requirement of its license.

4.  See 18 CFR 385.206(a)(2005).

5.  Id.