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HomeMy WebLinkAboutFERC - Order Approving Non-Project Use of Project Lands and Amending License - Project No. 2100-182 o m X Z M O M 47 its 0) co (f) 0 o< C) > A U) = 0 > m Z 0Z 00 > () -n, 0 CD U) C z > z Ul U) CD -0 CY) M < 0-nz 0 73 Cl) O 160 FERC 162,118 UNITED STATES OF AMERICA FEDERAL ENERGY REGULATORY COMMISSION California Department of Water Resources Project No. 2100-182 ORDER APPROVING NON-PROJECT USE OF PROJECT LANDS AND AMENDING LICENSE (Issued August 2,2017) 1. On June 23,2017,the California Department of Water Resources(California DWR),licensee for the Feather River Hydroelectric Project No.2100,filed an application requesting Commission approval to permit Pacific Gas and Electric Company (PG&E)to reroute a portion of its transmission line across the hydroelectric project land in the vicinity of the project's Thermalito Diversion Pool. The project is located on the Feather River in Butte County,California,and occupies lands of the United States administered by the U.S.Forest Service and the U.S.Bureau of Land Management. 1. Background 2. In February 2017,abnormally heavy precipitation resulted in high flows in the Feather River basin that caused extensive erosion and damage to the main spillway and emergency spillway at the Feather River Project's Oroville Dam. California DWR first observed major damage to the main spillway on February 7,2017. Due to high inflows into Lake Oroville and reduced outflow capacity on the main spillway,Lake Oroville overtopped the adjacent emergency spillway on February 11,2017,causing back-cutting erosion on the emergency spillway that threatened the stability of the emergency spillway's crest structure. Unavoidable increased operation of the main spillway led to the loss of the lower portion of the spillway chute and caused significant erosion in the vicinity of the spillway failure site. 3. Three towers of the existing non-project PG&E transmission line were located on the lower portion of the emergency spillway path. As a result,the line would have likely suffered significant damage from water flows or erosion in the event that the emergency spillway was extensively used. For this reason,PG&E removed its transmission lines and towers from the vicinity of the spillway area and rerouted the Penes with a temporary line,located approximately 0.25 miles to the west of the original route. Because the line was a short-term solution,it was designed to only carry a single 230-kilovolt(kV)circuit, half of the original alignment's transmission capacity. Project No.2100-182 2_ 4. At present,the temporary line's location conflicts with and prevents California DWR's plan to construct its own permanent reroute of the Feather River Project's primary transmission lines. The rerouted primary transmission lines are essential for the continued control and operation of the project's Hyatt pumping-generating plant integrated into the Oroville Dam. 5. The PG&E transmission line is not associated with the California DWR's hydroelectric project,but is located on land within the Feather River Project boundary through an existing casement between the two entities. IL Proposal 6. California DWR is requesting Commission approval to permit PG&E to partially reroute its existing 230-kV Table Mountain—Palermo transmission line to a permanent alternate location in the vicinity of the project's Thermalito Diversion Pool and emergency spillway,within the project boundary. The original transmission line route is oriented in a primarily north-south direction and is located west of the main spillway. The proposed rerouted section of the transmission line would diverge from the existing route at a point south of the diversion pool and travel approximately 3,000 feet in a northwest direction on the south side of the diversion pool parallel with California DWR's separately-proposed reroute of the project's primary transmission line. PG&E's transmission line reroute would then diverge from co-location with the primary transmission line and turn more to the north to cross the diversion pool. The line would continue north for approximately 2,800 feet before reconnecting to the existing east—west route as part of the Table Mountain—Palermo transmission line. The proposed reroute would be approximately one-mile long and 150-feet wide;of which approximately 2,700 feet of its length would be within the project boundary. The proposed reroute would ensure that the PG&E transmission line is outside of the emergency spillway inundation zone. 7. Construction of the transmission line reroute would require the installation of two new transmission towers(with four footings each)on California DWR land within the project boundary. To facilitate the construction of the rerouted transmission line,PG&E proposed an 8.63-acre corridor within the project boundary to be cleared and grubbed, and other potential ground-disturbing activities for access roads,staging areas,work pads,and excavation for transmission tower footings. 111. Agency Consultation 8. The licensee consulted with the U.S.Fish and Wildlife Service(FWS),California Department of Fish and Wildlife(California DFW),U.S.Army Corps of Engineers, California State Historic Preservation Officer(California SHPO),and the Enterprise Rancheria of Maidu Indians of California(Enterprise Rancheria)Tribal Historic Preservation Officer(THPO)and the Advisory Council on Historic Preservation Project No.2100-182 -3- (Advisory 3-(Advisory Council)on the effects resulting from the proposed activities. 9. By letters dated April 26,May 8,May 11,May 18,May 19,May 25,and June 5, 2017,the California SHPO provided direction and concurrence on various cultural resources effects within the footprint of the project. By email dated April 27,2017,the Advisory Council acknowledged the licensee's cultural resource survey efforts and encouraged the licensee to continue coordinating with the California SHPO. By email dated May 8,2017,the Enterprise Rancheria THPO concurred with California DWR's plan for treatment of the discovery of cultural resources at the site. In addition,on July 5, 2017,the Commission,California SHPO,and the Federal Emergency Management Agency executed a programmatic agreement(PA)for the management and treatment of cultural resources related to the response to the spillway failure. The PA includes provisions for identification and management of potential effects to historic properties arising from transmission line relocations. 10. Following consultation with the FWS and formal applications,the FWS issued a Bald Eagle Take Permit on February 17,2017,and a Migratory Bird Treaty Act Permit on lune 8,2017. The California DWR coordinated its proposal with the California DFW during regular coordination meetings. IV. Discussion 11. Commission staff has analyzed the proposed transmission line work and its . potential effects to environmental,cultural,and recreation resources. These effects are discussed further in the attached Environmental Analysis(EA)prepared by Commission staff to fulfill the requirements of the National Environmental Policy Act for emergency circumstances.' The EA provides recommendations to mitigate effects of the proposed transmission line work on these project resources. Based on information,analysis,and evaluations contained in the EA,Commission staff finds that approval of the proposed transmission line relocation,with implementation of the recommendations in the EA, would not constitute a major federal action significantly affecting the quality of the human environment. ' A. Water Quality and A uatic Resources 12. The proposed route for the transmission line would cross over the Thermalito Diversion pool at a new location just west of the previous line. The water crossing does not involve any in-water construction work. In addition,the construction of support towers for the line would be at a significant distance from the diversion pool,such that no 142 U.S.C.§4332(2012);40 C.F.R.§ 1506.11 (2017);Council on Environmental Quality,Emergencies and the National Environmental Policy Act(2016), https://ceq.doe.gov/docs/ceq-regu lations-and-guidance/Emergencies_and_NEPA.pdf. Project No.2100-182 ¢ sediment or other construction debris would enter the waterway. Therefore,the proposed transmission line would have no effect on water quality or aquatic resources. B. Terrestrial Resources 13. Construction of the proposed transmission line would temporarily and permanently disturb land,vegetation,wildlife,and avian species within the footprint of the approximately one-mile long and f50-feet wide transmission line corridor. Terrestrial species in and around the proposed transmission line corridor could include mountain lions,raccoons,turkeys,opossums,coyotes,tree and ground squirrels,rabbits,deer, skunks,ringtails,bears,and many species of birds native to the area,including 24 species protected under the Migratory Bird Treaty Act. There is also an active bald eagle nest located adjacent to the proposed transmission line corridor but outside the project boundary,on PG&E land. 14. Disturbances to terrestrial resources would occur primarily during vegetation clearing and grubbing activities;construction of work pads,crane pads,staging areas,and access roads within the right-of-way;pole installation;and wire tensioning activities. Land-clearing and the construction of access roads and work areas have the potential to cause loss and destruction of wildlife habitat;introduce additional noise,vibration,and dust in the areas immediately surrounding the proposed work;and increase the potential For vehicle collisions and other human interactions with wildlife. Disturbance and removal of existing vegetation for any of the proposed construction activities also has the potential to create conditions conducive to the introduction and spread of invasive plant species. Once construction is complete,the permanent transmission lines have the potential to increase avian collision and electrocution during flight and foraging if measures are not implemented to avoid or minimize these effects. 15. While it is not possible to completely eliminate all direct and indirect effects on terrestrial resources,the EA includes staff recommendations to reduce these effects, which are incorporated as ordering paragraphs in this order. 16. To mitigate for the loss of vegetation,both as habitat for wildlife and as an aesthetic resource for recreation trails,and to reduce the spread and introduction of nonnative,invasive species,California DWR must include in any permit it issues to PG&E the following provisions:(1)PG&E and its contractors must use best management practices when clearing and grubbing any vegetation to reduce the impact to the existing wildlife and recreation areas,and minimize the introduction of invasive and noxious species;(2)to mitigate for the loss of vegetation,wildlife habitat,and the aesthetic scenery around the recreation trails,post-construction,PG&E must identify and revegetate areas disturbed during construction to simulate pre-construction conditions and/or identify and maintain cleared areas that cannot be revegetated to ensure transmission line safety;and 3)identify areas disturbed during construction where Project No.2100-182 -5- invasive 5-invasive and noxious weeds are discovered,and revegetate those areas with plantings of native vegetation. Ordering paragraph(B)below incorporates these requirements. Ordering paragraph(C)below requires California DWR to file a report on the success of PG&E's revegetation efforts,two years after the issuance of this order. 17. As discussed above and in the EA,the FWS issued a Bald Eagle Take Permit on February 17,2017,for the proposed transmission line reroute. The permit requires California DWR to coordinate with PG&E to install flight diverters near the known nest and where the line crosses the waterway. The permit also requires California DWR or its sub-permitees to monitor the bald eagle nest for three years following emergency activities to determine the disturbance effect to the Glen Pond breeding territory. To further minimize the effects of transmission line construction and operation on avian species,FWS issued a permit under the Migratory Bird Treaty Act on.Tune 8,2017,that includes provisions for California DWR or its sub-permitees to live-trap and relocate specific avian nests,requirements for the placement of young/eggs into foster nests or transport to a licensed wildlife rehabilitator,and measures for preventing nest establishment for the duration of the construction of the transmission line. 18. To ensure continued protection of the active bald eagle nest during and after construction,ordering paragraph(D)requires California DWR to include in any permit it issues to PG&E the measures required by the Bald Eagle Take Permit. California DWR should-also share with PG&E its Bald Eagle Protection Plan for this specific nest and determine which measures,if any,should be incorporated into any permit issued for the proposed construction work and future maintenance of the installed transmission lines. 19. To reduce the likelihood of construction disturbance on avian species and of avian collisions and mortality resulting from the permanent transmission lines once erected, ordering paragraph(E)requires California DWR to include in any permit it issues to PG&E the measures required by the FWS Migratory Bird Treaty Act Permit and any other measures California DWR deems necessary to protect avian species within the project boundary. C. Threatened and Endangered Species 20. Section 7(a)(2)of the Endangered Species Act of 19732 requires federal agencies to ensure that their actions are not likely to jeopardize the continued existence of endangered or threatened species,or result in the destruction or adverse modification of their critical habitat. The Biological Opinions issued by the FWS on April 9,2007,and by the rational Marine Fisheries Service on December 5,2016,found that there is no critical habitat for any federally-listed species in the area of the proposed transmission 2 16 U.S.C.§ 1536(a)(2)(2012). Project No.2100-182 6 line reroute.3 We conclude that the proposed action would have no effect on federally listed threatened or endangered species. D. Cultural Resources 21. Under section 106 of the National Historic Preservation Acta and its implementing regulations,5 federal agencies must take into account the effect of any proposed undertaking on properties listed or eligible for listing in the National Register of Historic Places(National Register),defined as historic properties,and afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on any undertaking. This generally requires the Commission to consult with the State Historic Preservation Officer to determine whether and how a proposed action may affect historic properties and to seek ways to avoid or minimize any adverse effects. 22. As stated above,by letters dated April 26,May 8,May 11,May 18,May 19, May 25,and June 5,2017,DWR consulted with the California SHPO. On July 5,2017, the Commission and California SHPO executed a PA,with FEMA as an invited signatory,for the management and treatment of cultural resources related to the response to the spillway failure. The PA also includes provisions for identification and management of potential effects to historic properties arising from transmission line relocations. That PA and its provisions are incorporated into the license via this order. 23. In addition to cultural resources identified during relicensing studies,the California DWR's June 23,2017 fling includes a draft report addressing cultural resources that could be affected by PG&E's proposed transmission line reroute. The PG&E line reroute corridor was surveyed to identify any additional cultural resources beyond those identified during the project's relicensing, Additional resources were discovered,recorded,and assumed eligible for listing in the National Register. 24. The Area of Potential Effect(APE)is defined as the geographic area within which an undertaking may directly or indirectly cause alterations in the character or use of sites eligible for listing in the National Register.6 The APE for the overall emergency recovery and repair work at the Feather River Project is larger than,and encompasses, 3 The FWS Biological Opinion was filed with the Commission on April 16,2007, under Project No.2100-000. The NMFS Biological Opinion was filed on December 5, 2016,under Project No.2100-134. a 54 U.S.C.§306108,Pub.L.No. 113-287, 128 Stat.3188(2014). 5 36 C.F.R.Part 800(2016). 6 36 C.F.R.§800.16(d)(2017). Project No.2100-182 7 the APE for PG&E's proposed transmission line reroute. The APE for the transmission line reroute is roughly a one-mile long, 150-Foot-wide corridor;of approximately 2,700 feet is in the project boundary. In light of the emergency nature of the work,California DWR is assuming that all cultural resources located within the APE are eligible for listing in the National Register. 25. Design constraints forced placement of a transmission tower in an existing archaeological site. However field testing in the presence of a tribal monitor determined that there would be no adverse effect to the resource from the work. The California SHPO concurred with the no adverse effect determination as long as archaeological and tribal monitors were present during construction of the tower. 26. Also due to design constraints,PG&E would need to place a transmission tower on the south side of the Thermalito Diversion Pool within the boundaries of an existing, large mining/habitation site(CA-BUT-I 105H). The placement would potentially impact the site and a ditch(CA-BUT-2380H)recorded within the mining site. As part of studies conducted during the project's relicensing,CA-BUT-1 105H was recommended as a contributing element to a proposed Forks of the Feather River Historic District that would be eligible for listing in the National Register. CA-BUT-2380H was also recommended as a contributing clement. Neither site was evaluated for individual listing in the National Register. 27. California DWR prepared an archaeological data recovery plan for the potentially affected sites and submitted it to the California SHPO on May 16,2017. The California SHPO provided comments on the plan and concurred in a letter dated May 18,2017, with California DWR's finding of no adverse effect for the tower work. California DWR incorporated the California SHPO's comments into a revised plan and resubmitted the plan to the California SHPO on May 19,2017. The California SHPO in a letter that same day said it had no additional comments on the revised plan. 28. On May 23,2017,California DWR concluded,based on the testing,that work in this location would not impact significant deposits that contribute to either site's eligibility for listing in the National Register,either individually.or as contributing elements to the historic district,and confirmed the finding of no adverse effect. California DWR submitted a report summarizing the field testing to the California SHPO on June 1,2017. In a letter dated June 5,2017,the California SHPO stated that the work met the plan requirements and concurred with the finding of no adverse effect so long as archaeological and tribal monitoring take place during construction and California DWR follows the regulations at 36 CFR 800.13(b)in the event of any unanticipated discoveries. 29. Additionally,PG&E recognized that construction at another proposed tower had the potential to impact two cultural resource sites and arranged for archaeological Project No.2100-182 8 monitors during the preliminary clearing and grubbing for the transmission reroute corridor. On April 21,2017,in a location planned for the new tower,a tribal monitor made an unanticipated discovery of a prehistoric site in an area that had been previously surveyed with negative results. California DWR reported the discovery to the California SHPO on April 25,2017,to the Commission on April 26,2017,and to the Advisory Council on April 27,2017. The Advisory Council,after reviewing the notification,said in a letter to California DWR dated April 27,2017,that it did not have any comments on the find. 30. A work plan for the new site,designated NL-1,was prepared. The plan was designed to assess the nature and extent of archaeological deposits in the area of direct impact and then to mitigate effects through data recovery,if necessary,thereby resolving adverse effects per 36 CFR 800.6(a). The plan was submitted to the Enterprise Rancheria for review and the Enterprise's Tribal Council approved the plan on May 8,2017. The plan was then submitted on May 8,2017,to the California SHPO for review and comment. Following the submittal of a revised plan,the California SHPO stated that it had no further comments in a letter to California DWR dated May 11,2017. 31. Data recovery at site NL-1 began on May 13,2017. After reviewing testing of the archaeological deposits,California DWR applied the criteria of adverse effect pursuant to 36 CFR 800.5(a)(1)and determined that placing a transmission tower and access road through the newly discovered site would impact significant deposits contributing to the site's eligibility and would therefore result in an adverse effect to a historic property. To address the adverse effect,data recovery excavation was conducted at the site. No human remains or items identified as sacred by the tribal monitor were encountered at the time of excavation. All artifacts and soil samples recovered during the field excavations are securely stored on California DWR property. A report of the archaeological work was completed and sent to the California SHPO for review and comment on May 24,2017. The California SHPO acknowledged the report and said that it appeared to meet the requirements of the work plan and gave concurrence on the finding of adverse effect. E. Recreation Resources 32. The proposed transmission line corridor is located within the Lake Oroville.State Recreation Area,which includes the recreational facilities at the Thermalito Diversion Pool. Following the February 2017 incident,California DWR closed the Thermalito Diversion Pool and trails in the proposed response and recovery work area,'including portions of the Brad Freeman and Dan Beebe Trails that parallel the shoreline of the diversion pool. The trail closures were implemented for public safety purposes due to active construction equipment in the area,and they will remain closed until all spillway repairs are complete. Project No.2100-182 q_ 33. The proposed transmission line reroute corridor will cross the Brad Freeman and Dan Beebe Trails in several locations on the south side of the diversion pool. Construction around the trails will include clearing and grubbing of the transmission line reroute corridor;the potential construction of laydown,staging areas,and access roads; and the placement of transmission line towers and lines. 34_ As indicated in the EA,the proposed construction work will not have a direct physical impact on the trails. The proposed construction work will not extend the ongoing closure of the trails. Once the trails are re-opened to the public after California DWR completes its spillway repairs,the routes will return to their previous condition, with minimal effects to the aesthetic environment. Potential temporary effects include the loss of vegetation along the trail cleared for construction as well as temporary displacement of the wildlife and avian species that previously existed in the area. As recommended in the EA,this order requires that California DWR include revegetation requirements in any permit issued to PG&E for this proposal. Revegetation requirements would allow the licensee to review the effects that the transmission line construction work had on recreation resources and to return the recreation areas to pre-construction conditions,to the extent possible. V. Conclusion 35. California DWR has an obligation to ensure that any non-project use and occupancy of project lands and waters it authorizes are not inconsistent with the purposes of the project,including public recreation,cultural resources and environmental protection. To that end,California DWR should include the following conditions in its permit issued to PG&E:(l)PG&E's use of the project lands and waters covered by the permit shall not endanger health,create a nuisance,or otherwise be incompatible with overall project recreational use;(2)PG&E shall take all reasonable precautions to ensure that the construction,operation,and maintenance of the facilities and improvements will occur in a manner that protects the scenic,recreational,and other environmental values of the project;and(3)PG&E shall not unduly restrict public access to project lands and waters. 36. The proposed transmission line reroute would allow PG&E to continue to deliver electricity to its customers in the area,while concurrently eliminating the reliability hazard associated with the previous towers being located in the emergency spillway flow area. The prescribed measures,along with measures required by the FWS in both avian- related permits,and measures proposed by the licensee and PG&E should adequately mitigate any adverse effects associated with the proposed action. Further,the proposed transmission line reroute would help meet peak electric demands associated with the rerouted transmission line's full capacity and would also facilitate the pending relocation of California DWR's transmission line in the immediate area. California DWR's request Project No.2100-182 10- to 0-to permit PG&E to r8route a portion of its transmission line across project lands,as the proposed action is modified herein,is approved. The Director orders: (A) California Department of Water Resource's(California DWR)application, filed with the Federal Energy Regulatory Commission on June 23,2017,to permit Pacific Gas and Electric Company(PG&E)to relocate a portion of its 230-kilovolt Table Mountain-Palermo Transmission line within the project boundary of the Feather River Hydroelectric Project No.2100,as modified in paragraphs(B)through(G),is approved. (B) The California DWR must include the following conditions in any permit issued to PG&E for the relocation of its transmission.line: (1)PG&E and its contractors must use best management practices when clearing and grubbing any vegetation to reduce the impact to the existing wildlife and recreation areas,and to minimize the introduction of invasive and noxious species;(2)to mitigate for the loss of vegetation, wildlife habitat,and the aesthetic scenery around the recreation trails,post-construction, PG&E must identify and revegetate areas disturbed during construction to simulate pre- construction conditions and/or identify and maintain cleared areas that cannot be revegetated to ensure transmission line safety;and 3)identify areas disturbed during construction where invasive and noxious weeds are discovered,and revegetate those areas with plantings of native vegetation. (C) Within two years from the date of this order,California DWR must file a report,including photographs,documenting the progress of the revegetated transmission line reroute corridor,staging areas,and work pads. The report must include information on PG&E's revegetation efforts and details,if applicable,regarding the removal of invasive and noxious weeds and the revegetation of these areas. If California DWR and PG&E need additional time to ensure revegetation efforts are successful,California DWR must File an extension of time request to file this documentation. (D) To ensure the protection of the bald eagle,the California DWR must include in any permit issued to PG&E for the proposed transmission line reroute the provisions outlined by the Bald Eagle Take Permit issued for this project. (E) To ensure the protection of avian species,California DWR must include in any permit issued to PG&E for the proposed transmission line reroute the provisions outlined in the Migratory Bird Treaty Act Permit issued for this project. (F) The Programmatic Agreement executed on July S,2017,between the Federal Energy Regulatory Commission and the California State Historic Preservation Officer,with the Federal Emergency Management Agency as an invited signatory,is approved and incorporated into the project license via this order. Project No.2100-182 11 (G) California DWR must include in any permit issued for the proposed transmission line the following standard conditions: (1)PG&E's use of the project lands and waters covered by the permit must not endanger health,create a nuisance,or otherwise be incompatible with overall project recreational use;(2)PG&E must take all reasonable precautions to ensure that the construction,operation,and maintenance of the facilities and improvements will occur in a manner that protects the scenic,recreational, and other environmental values of the project;and(3)PG&E must not unduly restrict public access to project lands and waters. (H) This order constitutes final agency action. Any party to this proceeding 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 Federal Power Act, 16 U.S.C.§8251(2012),and the Commission's regulations at 18 C.F.R.§385.713(2017). The filing of a request for rehearing does not operate as a stay of the effective date of this order,or of any other date specified in this order. The licensee's failure to file a request for rehearing shall constitute acceptance of this order. Thomas J.LoVullo Chief,Aquatic Resources Branch Division of Hydropower Administration and Compliance