HomeMy WebLinkAboutFERC - Order Denying Temporary Amendment to Recreational Plan 165 FERC 9[ 62,024
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
California Department of Water Resources Project No. 2100-187
ORDER DENYING TEMPORARY AMENDMENT TO RECREATION PLAN
(Issued October 10, 2018)
1. On July 10, 20181, the California Department of Water Resources (licensee or
DWR) filed a request to temporarily amend the approved Recreation Plan2 for the Feather
River Hydroelectric Project No. 2100. The licensee requests to temporarily redesignate
portions of some limited-use recreational trails to multi-use (i.e., hike, bike, equestrian)3
to address the negative impacts from the temporary closure of certain trails since the
spillway emergency in February 2017.4 The project is located on the Feather River in
Butte County, California, and occupies federal lands managed by the U.S. Bureau of
Land Management and the U.S. Forest Service.
2. As discussed below, Commission staff conclude that available information does
not justify the burden to temporarily change designated trail uses. This order denies
DWR's request.
1 The California Department of Water Resources originally filed its request on
July 5, 2018, but refiled the application on July 10, 2018, and the original filing was
subsequently designated "Privileged". This proceeding and order considers the public
July 10, 2018 filing.
2 The Commission approved the Recreation Plan in 1994 and has subsequently
approved four amendments: Cal. Dep't of Water Res., 68 FERC¶ 61,358 (1994);
124 FERC 162,182 (2008); 160 FERC 162,021 (2017); 160 FERC q[ 62,226 (2017); 162
FERC¶I 62,077 (2018).
3 Multi-use is also referred to as multiple use or shared use.
4 In February 2017, high flows in the Feather River basin caused extensive
erosion and damage to the main spillway and emergency spillway area at Oroville Dam.
Since that time, DWR has implemented numerous emergency actions and has initiated
reconstruction of the main spillway and fortification of the emergency spillway.
Project No. 2100-187 - 2 -
I. Background
3. The Federal Energy Regulatory Commission (Commission or FERC) issued a
license for the 762-megawatt (MW) Feather River Project to the DWR on
February 11, 1957.5 The project is located in the foothills of the Sierra Nevada,
approximately five miles east of the city of Oroville and about 130 miles northeast of
San Francisco.
4. The licensee's Recreation Plan approved on September 22, 1994, included
provisions for improving and maintaining an existing 17.5-mile-long equestrian/hiking-
only trail and for developing a 35-mile-long loop mountain bicycle trail. The approved
plan also included a provision for establishing the Oroville Recreation Advisory
Committee (ORAC) to review recreational facilities in the project area and determine the
need for any additions or improvements.6 While DWR is the licensee and ultimately
responsible for implementing the license, the California Department of Parks and
Recreation (California Parks) manages the public recreational facilities within the FERC
boundary for the Feather River Project, including the trails in the Lake Oroville State
Recreation Area. An equestrian/hiking-only trail was substantially modified by
California Parks in 2001 to meet standards described in that agency's 1993 Trail
Handbook. There are approximately 25 miles of trails at the project designated for
exclusive use by equestrians and hikers. The 35-mile-long loop mountain bicycle trail
was originally completed in June 1996, with an additional six miles added later.
Background of Trail Use Designations
5. In the past DWR has unsuccessfully proposed to change trail use designations to
multi-use. On February 26, 2002, DWR notified the Commission that California Parks
intended to convert most of the trails within its management area to multi-use. When
California Parks implemented the changes in trail use, the Commission received
numerous letters from recreational trail users at the Feather River Project.' Some
opposed and others supported the trail use modifications. On November 26, 2002,
$ Dep't of Water Res. of the State of Cal., 17 FPC 262 (1957).
6 ORAC consists of representatives from the following entities: California
Department of Fish and Wildlife, California Parks, the City of Oroville, Butte County,
the Oroville Chamber of Commerce, the California Sportfishing Protection Alliance,
Butte County Citizens for Fair Government, Citizens for Fair and Equitable Recreation
Use of Lake Oroville, the Butte Sailing Club, Lake Oroville Fish Enhancement
Committee, the State Water Contractors, and the licensee.
DWR did not request Commission approval for the change prior to its
implementation.
Project No. 2100-187 - 3 -
Commission staff sent a letter to DWR reminding it of the currently approved Recreation
Plan and informing it that a request to amend the approved Recreation Plan was
necessary to effectuate a change in trail use.
6. At the direction of Commission staff, DWR held a public meeting and received
letters of opposition and of support for the proposed changes to the trail designations in
the project area. After the meeting, DWR prepared and filed an application on
April 4, 2003, to.amend the approved Recreation Plan to redesignate certain recreational
trails within the project boundary to multi-use trails.8 Commission staff denied the
application on August 17, 2004 (2004 Order).9 That order included the following
discussion:
The approved recreation plan for the Feather River Project includes a variety
of trails that are designated for various types of uses. These trails offer
recreational opportunities for equestrians, hikers, and mountain bicyclists,
and the user-specific nature of the trail designations helps minimize safety
concerns and user conflicts between competing trail users. The 25 or so
miles of equestrian and hiker-only trails and the more than 47 miles of
mountain bicycle trails in and adjacent to the project area offer a balance of
recreational opportunities for the trail users. In addition, there are hundreds
of miles of mountain bicycle trails available in the region surrounding the
Feather River Project.
...[C]onverting the trails to multiple use (with bicycles sharing the trail)
would adversely change the recreational experience for equestrian users
primarily because it may increase the potential for user conflicts and
necessitate more trail maintenance and modifications to accommodate the
multiple uses. Through research of the trails and trail uses in the region of
the project, we identified many trails available to mountain bikers. The
approved recreation plan designated special use trails for equestrians to
provide a unique recreational experience.
This proposed amendment comes at a time when the project is undergoing
the process of relicensing and considerations are being made by existing
work groups such as the [ORAC] and the Recreation and Socioeconomics
Work Group. The relicensing process will address the balance of recreational
uses at the project in a comprehensive manner. Making changes such [as]
8 Specifically, in addition to other changes, DWR proposed full-time multi-use on
the Brad Freeman Trail, the Bidwell Canyon Trail, and the Dan Beebe Trail.
9 Cal. Dep't of Water Res., 108 FERC 9162,164 (2004).
Project No. 2100-187 - 4 -
the proposed trail use conversion is premature and untimely."10
7. The 2004 Order concluded "based [on] the analysis presented in the attached
[Final Environmental Assessment] and supported by the Commission record, that the
subject trails should remain as originally designated in the approved recreation plan for
the remainder of the license term."11
Environmental Analysis for Relicensing
8. In the relicensing proceeding for the Feather River Project, DWR filed a
comprehensive Offer of Settlement (Settlement Agreement) on March 24, 2006,12 and
later filed a Settlement Agreement-Recreation Management Plan (SA-RMP) on
March 28, 2006.13 The SA-RMP included a proposal to change existing trail
designations, including changing the Dan Beebe and Loafer Creek trails from equestrian
and hiking only to multiple use.
9. The Final Environmental Impact Statement (FEIS) for the relicensing included an
analysis of the potential effects of the licensee's proposal in the SA-RMP to change the
existing trail use designations, including changing the Dan Beebe and Loafer Creek trails
from equestrian and hiking only to multiple use.14 DWR proposed to do additional trail
planning and design assessment to address resource protection and public safety before
implementing changes to the trail use designations.' Equestrians opposed the proposal
in the SA-RMP to change trail use designations, citing concerns regarding safety,
resource damage, and user conflicts.16
10 Id. at PP 17-20.
11 Id. at P 22.
12 DWR, Settlement Agreement and Explanatory Statement, Docket No. P 2100-
052 (filed March 24, 2006).
13 DWR, Settlement Agreement Recreation Management Plan, Docket No. P
2100-052 (filed March 28, 2006).
14 Commission staff, Final Environmental Impact Statement for the Oroville
Facilities Project (FEIS), Docket No. P 2100-052, at 201-280 (issued May 18, 2007)
(Section 3.3.6 Recreational Resources).
15 FEIS at 255-269 (in Section 3.3.6.2 Recreational Resources).
16 FEIS at 10-11.
Project No. 2100-187 - 5 -
10. In the FEIS, Commission staff found that the existing trail designations provide a
unique recreational experience for equestrians and that converting them to multi-use
would adversely affect the equestrian experience because it could result in an increase in
user conflicts and because it would result in the need for more trail modifications and
maintenance. Staff also noted in the FEIS that some of DWR's recreational data that was
used to justify the proposed trail use redesignation were inaccurate or incomplete.
Therefore, Commission staff recommended revisions to the terms of the SA-RMP and
DWR's proposal, including adding provisions to conduct a trail condition inventory prior
to recommending changes, if necessary, to any trail use designation, collect trail use data,
conduct visitor surveys (including methodology to focus on multiple use and user
conflicts), and complete trail feasibility investigations.'
Licensee's Proposal
11. Due to the closure of certain recreational trails following the spillway emergency
in February 2017, all recreational users have reduced access to trail mileage until DWR
completes all reconstruction activities in 2019. The licensee requests Commission
approval to temporarily redesignate portions of the Brad Freeman, Bidwell Canyon, Dan
Beebe, and Loafer Loop recreational trails from equestrian/hiking-only or bicycle/hiker-
only to multi-use until the reopening of the spillway recreation facilities. The proposed
redesignation would allow equestrian use on portions of specific trails currently
designated for bicycle/hiker use only and would allow bicyclist use of portions of specific
trails currently designated for equestrian/hiker use only. DWR states that the trail
designations would revert back to their original designations under the Recreation Plan
when the recreation facilities reopen in 2019.
12. DWR indicates that if the redesignations are approved, California Parks would
assess the trail segments to determine whether they meet that agency's multi-use design
criteria for visibility, width, and slope, or whether improvements could include widening
some trail sections, selective vegetation removal, or trail realignment. DWR states that
changing the trail designations may require vegetation removal and ground disturbance
because some trail segments do not currently conform to California Parks' multi-use
standards. Ground disturbance has the potential to cause erosion and sedimentation, to
affect cultural resources, and to increase the proliferation of invasive species. The
proposal would also have temporary impacts on recreation due to restricted trail access
during these ground-disturbing activities. DWR states that it would fully evaluate the
environmental effects of any needed trail improvements and that California Parks would
modify trail signage to reflect the temporary modified use designation
17 FEIS at 263, 359, 362, and 381 (Section 5.0 Staff's Conclusions).
Project No. 2100-187 - 6 -
13. According to DWR, the proposal to re-designate certain trails to multi-use was
discussed at a special single-topic meeting with ORAC on June 1, 2018, at which
representatives from bicycle and equestrian groups presented their respective positions to
the committee. There was no consensus among user groups, but ORAC produced a
recommendation for DWR to pursue the approval of the temporary trail redesignation.
Ten committee members voted on this proposal, with six voting in favor, one voting no,
and three abstaining.l8
14. Finally, the DWR states that this proposal to change trail designations is consistent
with the Settlement Agreement and is being proposed in order to comply with California
Governor Edmund G. Brown, Jr.'s Executive Order B-39-17 signed on April 6, 2017,
which directed the DWR to "develop plans for additional access points to Lake Oroville
for recreational use."19
IV. Public Notice
15. On July, 10, 2018, the Commission issued a notice of DWR's application and
solicited comments, motions to intervene, and protests.20 The deadline for filing
responses to the notice was August 10, 2018.21 On August 3, 2018, the California State
Water Contractors filed a motion to intervene and comments in support of DWR's
request. On August 10, 2018, a combination of 12 equestrian organizations and 14
individuals (equestrian coalition) filed a motion to intervene, comments, and protest.22
18 The ORAC vote on this proposal was as follows. Voting yes: Oroville Chamber
of Commerce, Butte County, Butte County Citizens for Fair Government, Citizens for
Fair and Equitable Recreation Use of Lake Oroville, Lake Oroville Fish Enhancement
Committee, DWR. Voting no: Butte Sailing Club. Abstaining: California Department of
Fish and Wildlife, California DPR, State Water Contractors. The City of Oroville and the
California Sportfishing Protection Alliance were not present.
19 See https://www.gov.ca.gov/news.php?id=1.9744.
20 See Notice of Application Accepted for Filing, Soliciting Comments, Motions to
Intervene, and Protests, 83 Fed. Reg. 32, 849 (July 16, 2018).
21 On July 12, 2018, the Commission issued a notice extending the deadline from
August 3 to August 10, 2018, to give interested parties sufficient opportunity to
comment.
22 The equestrian coalition is composed of: Action Coalition for Equestrians,
Oroville Pageant Riders, Golden Feather Riders, Desperate Horse Wives Group, Loafer
Loop Riders Group, Back Country Horsemen (Sutter/Buttes unit), Safe Trails Alliance,
Audubon Society, Emigrant Trail Conservancy, Back Country Horsemen (Mother Lode
unit), Gold Country Trail Council, Paradise Horsemen assn., Janine Cody, Mike Cody,
Project No. 2100-187 - 7 -
The general reason for the protest involves safety and user conflicts. Timely, unopposed
motions to intervene are granted by operation of Rule 214(c) of the Commission's Rules
of Practice and Procedure.23 The Commission also received comments from
approximately 136 individuals and organizations. Approximately 34 of those individuals
or organizations support the trail use redesignation, and approximately 102 oppose the
trail use redesignation.
16. The State Water Contractors assert that the proposal to designate various trails as
multi-use is consistent with the Recreation Plan, which was approved by a variety of
interests as part of the Settlement Agreement. The State Water Contractors contend that
Commission staff considered the proposed change in the 2007 FEIS and recognized that
increased demand may require some limited use trails to become multi-use trails. They
also request that the Commission adopt the proposed request without material
modification.
17. The equestrian coalition reiterates the opposition to changing the designation of
certain trails from equestrian/hiker-only to multi-use that was stated in response to the
Settlement Agreement proposal to do the same. The equestrian coalition refers to
Commission staff's recommendations from the FEIS that are also discussed above (i.e.,
to conduct a trail condition inventory prior to recommending changes to any trail use
designation, collect trail use data, conduct visitor surveys, and complete trail feasibility
investigations). They oppose the current proposal in order to protect the unique, safe,
quiet trail experience, and they believe that DWR's request misrepresents the FEIS
analysis as well as the Governor's Executive Order B-39-17.
V. Discussion
18. DWR's present application is similar to past proposals for trail use redesignations,
and we deny it for similar reasons. Regardless of the new context of the spillway
reconstruction, there remains considerable disagreement among user groups and
insufficient information to justify a temporary change in trail use designations, especially
given the studies and potential trail construction that would be necessary for this
relatively short time period.
19. We are not able to quantify the current loss of trail availability for bicyclists within
the Feather River Project boundary.24 According to DWR's January 26, 2018 filing, bike
Robert Weinzinger, Nancy Weinzinger, Marlene Rold, Vickie Speegle, Lois Cameron,
Mary Griffin, Gary Paul, Johnetta Nicholson, Tina Strangeland, Roxie Herrington,
Sandra Finwick, Calvin Sanders.
23 18 C.F.R. § 385.214(c) (2018).
24 There are varying trail mileages and distances in documents filed with the
Project No. 2100-187 - 8 -
users had access to approximately 37.3 miles of trails within the Lake Oroville State
Recreation Area prior to the spillway incident, but they only have access to
approximately 5.5 miles of trails following closures of the recreation area and trails. In
an August 1, 2018 filing, DWR indicated that the Brad Freeman and Dan Beebe trails re-
opened from Lakeland trailhead to Glen Pond on April 18, 2018, the Dan Beebe trail
opened from Glen Pond to Canyon Drive on June 29, 2018, and a connector trail was
constructed from the existing Dan Beebe trail near the Palermo Canal so the trail can
remain open during certain construction activities.25 DWR did not provide mileages or
distances for these trails or trail segments in either the July 10, 2018 or the August 1,
2018 filings. The licensee has been aware since the 2007 issuance of the FEIS that more
data is needed regarding trail usage, condition, and maintenance, but DWR did not
provide this type of information or data in its current request.
20. There are opportunities for mountain biking, including miles of single track dirt
trails, logging roads, and four-wheel drive tracks, on public land within the Lassen and
Plumas National Forests, and other areas, outside of the project boundary. However, we
recognize that the trail closures and existing conditions resulting from the spillway
emergency incident, the reconstruction, and associated activities have negatively
impacted, and continue to negatively impact, recreation in the project area, possibly with
a disproportionate impact to bicyclists. We also recognize that existing trails at the
project that exclude bicyclists may ultimately prove to be suitable for multi-use in the
future. However, the findings in the 2004 Order and in the 2007 FEIS remain true at this
time that the existing trail designations provide a unique recreational experience for
equestrians and that converting these trails to multi-use would adversely affect
equestrians due to the potential increase in user conflicts and the need for more trail
modifications and maintenance. Staff also noted in the FEIS that "DWR's recreational
data were, in some cases, inaccurate or incomplete (e.g., counters moved or
malfunctioned during data collection period) and the data were collected in 2002-2003, at
a time when the trails were managed for multiple use instead of their approved
designation."26 DWR did not provide any current recreational use data for the project in
its application to justify its proposal to open the existing equestrian/hiking-only trails to
Commission. A complete, up-to-date trail inventory, as recommended in the FEIS,
would assist in accurately comparing and analyzing trail usage at the project.
25 The Thermalito Diversion Pool and trails along its northern shore were opened
from August 28 through September 4, 2018. See the map of Oroville Recreation
Closures at https://water.ca.gov/-/media/DWR-Website/Web-Pages/What-We-
Do/Recreation/Lakes-And-Reservoirs/Files/Oroville-Closure-Area Labor-
Day 2018.pdf?is=en&hash=DA78CO2D5B7E4FCD1C9878925CB5IBD8B8F7F608.
26 FEIS at 263.
Project No. 2100-187 - 9 -
bicyclists and thus eliminate the existing unique recreational experience for equestrians at
the Oroville facilities.
21. We expect that DWR will continue to open trails or portions of trails as conditions
allow throughout the remainder of the spillway reconstruction period, so the negative
impacts for bicyclists will decrease over the next several months and cease as all trails re-
open when construction is completed in 2019. Additionally, DWR filed its request on
July 10, 2018, with the acknowledgement that additional studies and trail construction
would be required, so the proposed change would not practically add trail access for
bicyclists within the near-term.
22. The trail use designations and related trail maintenance have been controversial
subjects at Oroville for many years, and continue to be, as demonstrated by the large
number of comments received in response to the public notice issued for this current
proposal. The State Water Contractors' comment that the proposal to designate various
trails as multi-use was approved by a variety of interests as part of the Settlement
Agreement is misleading. As discussed above in the section titled Environmental
Analysis for Relicensing, several equestrian groups specifically opposed the portion of the
Settlement Agreement that proposed changing the equestrian/hiking-only trails to multi-
use. While it is true that in the FEIS, Commission staff considered and analyzed a
change in trail use designations and recognized that there may be a future increased
demand for bicycle access to more trails, staff recommended a requirement to study the
issue prior to proposing and implementing any changes to the existing trail use
designations. We note that although many members of ORAC voted to send a
redesignation proposal to the Commission for approval, the State Water Contractors
abstained.
23. DWR cites Governor Edmund G. Brown, Jr.'s Executive Order B-39-17 as
highlighting the importance of pursing this proposal expeditiously. The executive order
specifically directs DWR to develop plans for additional access points to Lake Oroville,
but it is not clear that the Executive Order was meant to apply to all other recreational
resources at the project. Also, we note that California Parks did not vote in favor of the
ORAC motion, which recommended that "DWR undertake the process to direct
[California Parks] to immediately make the Dan Beebe trail and Bidwell Canyon trail
both become multi-use ...." DWR also states that this proposal is consistent with the
licensing Settlement Agreement. However, equestrian groups filed in opposition to the
settlement, stating that they did not agree with changing the equestrian-only trails to
multi-use (i.e., to allow for bicycles) and citing concerns about safety, resources damage,
and user conflicts. They also note that DWR proposed the changes without knowledge of
the trail conditions since a trail condition inventory had not been completed.27 Equestrian
27 FEIS at 10-11.
Project No. 2100-187 - 10 -
groups also oppose this current proposal, as discussed above. The concerns they raise
remain relevant, and DWR did not provide any new information on which to re-evaluate
or ameliorate these issues.
24. Commission staff's analysis of the current proposal to change certain trail use
designations finds that authorizing the change in trail designation temporarily would
necessitate lengthy and costly studies and would have some negative environmental
impacts due to required trail construction. It would permanently alter the tread width of
the trails, which is undesirable for equestrians. Such physical alteration of the trails,
realistically, may pre-judge a decision whether to permanently change the current trail
designations to multi-use. As indicated in the licensee's application, trail assessments are
required to determine whether trail widening, realignment, or vegetation removal would
be necessary to meet multi-use design criteria. This could then require ground
disturbance, which could adversely impact vegetation and cultural resources and cause
erosion and the proliferation of invasive species. Therefore, we conclude that it is
unwarranted to approve a temporary, controversial change in trail use designation that
lacks consensus or sufficient information and was previously denied.
25. Based on our review of the application, we conclude that the proposed temporary
amendment to the project's Recreation Plan should be denied. Denial of this request to
change the trail designations does not in any way prejudice or pre-determine any decision
or requirement that may become part of a new license.28
The Director orders:
{A) The application for a temporary amendment to the Recreation Plan for the
Feather River Hydroelectric Project (FERC No. 2100), filed on July 10, 2018, by the
California Department of Water Resources, is denied.
(B) This order constitutes final agency action. Any party 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 (2018). 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
28 The relicensing of the Feather River Project is pending before the Commission.
Project No. 2100-187 - 11 -
order. The licensee's failure to file a request for rehearing will constitute acceptance of
this order.
CarLisa Linton
Acting Director
Division of Hydropower Administration
and Compliance