HomeMy WebLinkAbout11.4.19 Email from A Snyder re FERC Doc. Lead Applicant Pacific Gas & Electric Snyder, Ashley
From: Snyder, Ashley
Sent: Monday, November 4, 2019 11:45 AM
To: BOS
Subject: Delegated Order Issued in FERC P-803-112
Attachments: FERC Doc.pdf
Please see the attached correspondence re:
Docket(s): P-803-112
Lead Applicant: Pacific Gas and Electric Company
Filing Type: Delegated Order
Description: Order Approving Change in Land Rights re Pacific Gas and Electric Company under P-803.
To view the document for this Issuance, click here
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20191104-3032 FERC PDF (Unofficial) 11/04/2019
169 FERC 1162,070
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Pacific Gas and Electric Company Project No. 803-112
ORDER APPROVING CHANGE IN LAND RIGHTS
(Issued November 4, 2019)
1. On June 6, 2019, Pacific Gas and Electric Company (PG&E or licensee), licensee
for the DeSabla-Centerville Hydroelectric Project No. 803, filed an application requesting
Commission approval to grant to Northern California Regional Land Trust (NCRLT), a
California non-profit corporation, a deed of conservation easement and agreement —Butte
Creek Planning Unit(conservation easement) on approximately 167 acres of licensee-
owned lands within the project boundary.1 The project is located on the West Branch
Feather River, Butte Creek, and tributaries, in Butte County, California. The project
occupies federal lands within the Lassen National Forest administered by the U.S. Forest
Service and federal lands administered by the Bureau of Land Management.
2. On June 12, 1980, the Federal Energy Regulatory Commission (Commission)
issued a license to PG&E for the DeSabla-Centerville Hydroelectric Project. In 2003,
the Public Utilities Commission of the State of California approved a Bankruptcy
Settlement Agreement (SA) whereby PG&E agreed to conserve and protect more than
140,000 acres of PG&E-owned watershed lands located within the Sierra Nevada and
Cascade mountain ranges, including lands within Commission-licensed hydropower
projects, for a broad range of"beneficial public values".3 To implement its "land
conservation commitment", PG&E created an independent non-profit foundation called
the Pacific Forest and Watershed Lands Stewardship Council (Stewardship Council),
made up of an array of interests and expertise from environmental organizations, trade
associations, Native American tribes, and federal, state, and local governments.'
1 The proposed conservation easement involves a total of approximately 2,179
acres of PG&E-owned land of which approximately 167 acres are within the project
boundary.
2 Order Issuing License (Major) (11 FERC¶ 62,207).
3 These values include the protection of the natural habitat of fish, wildlife, and
plants; preservation of open space; outdoor public recreation; sustainable forestry;
agricultural uses; and historic values.
4 Among others, the Stewardship Council includes the California Department of
20191104-3032 FERC PDF (Unofficial) 11/04/2019
Project No. 803-112 - 2 -
3. Under the SA, PG&E is required to provide permanent conservation easements
restricting development on the licensee-owned lands to protect and preserve their
beneficial public values and/or donate in fee simple to public entities or non-profit
conservation organizations whose ownership would ensure the protection of beneficial
public values. The SA requires the conservation easements to include an express
reservation of PG&E's rights for continued operation and maintenance of hydroelectric
and water delivery facilities and finds that PG&E is not expected to make fee simple
donations of lands that contain its hydroelectric project works.
4. In its application, PG&E proposes to grant to NCRLT a perpetual conservation
easement involving approximately 167 acres of land within the project boundary.' The
purpose of the conservation easement is to ensure the permanent protection and
preservation of the property's beneficial public values, including the preservation of
native plant, tree, and animal habitat, including species protected under the California
Endangered Species Act and Federal Endangered Species Act, forest resources, scenic
character, outdoor recreation activities and facilities, and protection of historical and
cultural resources. The application contains supporting documentation, including, but not
limited to, a copy of the proposed deed of conservation easement and agreement, and a
draft baseline report documenting existing conditions and uses of the property.
5. The 167 acres of lands within the project boundary are primarily used for power
generation and are occupied by the DeSalba forebay, powerhouse, penstock, and sluice
Pipe; Lower Centerville canal and spillway; Centerville powerhouse, penstock and spill
channel; and various access roads. The property is also used for informal public
recreational activities such as fishing, hiking, picnicking, equestrian use, sightseeing, and
swimming.
6. While the proposed conservation easement grants NCRLT the right to monitor and
enforce the protection and preservation of the property's beneficial values, and other
limited rights; it does not grant NCRLT any affirmative rights to implement
enhancements on the property, exercise physical or managerial control of day-to-day
operations, or create or require the development of specific land use plans for the
property. Further, the easement agreement identifies specific prohibited activities on the
property, including, but not limited to property subdivision, construction of buildings,
Fish and Wildlife, California State Water Resources Control Board, U.S. Department of
Agriculture —Forest Service (Forest Service), U.S. Department of Interior —Bureau of
Land Management, and a Stewardship Council appointee representing California Tribal
interests.
The licensee also petitions the Commission to approve text reserving PG&E's
rights to comply with the project license and orders of the Commission. The text is to be
used as a template for future conservation easement agreements PG&E intends to file for
prior Commission approval that involve other Commission-licensed projects.
20191104-3032 FERC PDF (Unofficial) 11/04/2019
Project No. 803-112 - 3 -
excavation, commercial uses, and any other uses that are inconsistent with the protection
and preservation of the property's beneficial public values.
7. The proposed conservation easement allows the licensee to engage in, or authorize
third parties to engage in, specific limited uses on the property, including vegetation
management, maintenance and restoration of existing structures, control of predatory or
problem animals, and other uses consistent with prudent and customary land management
activities. Further, the conservation easement includes specific provisions that explicitly
recognize and reserve the Commission's jurisdiction and authority over the project and
the licensee's obligations to comply with applicable laws, Commission regulations and
orders, and project license; and reserves PG&E's ability to file in its sole discretion,
applications requesting Commission approval of proposed project and non-project uses of
project lands and waters.6
8. Standard license Article 5 requires licensees to obtain and retain all property
interests necessary for the construction, maintenance, and operation of the project.
Article 5 imposes a fundamental requirement: the licensee must have sufficient rights
with respect to construction, maintenance, and operation of the project to enable the
Commission, through its licensee, to carry out its regulatory responsibilities under the
Federal Power Act(FPA). Contractual agreements a licensee may make with a non-
licensee for assistance in financing, constructing, and operating a project are permissible,
provided the licensee retains in such arrangements sufficient ownership and control of the
project to fulfill its license requirements, and to enable the Commission to properly
regulate the project.
9. The proposed conservation easement is consistent with the provisions of Article 5
and the FPA and would reserve the Commission's and licensee's jurisdiction and
authority over the project license and ensure the continued use and protection of the
subject property for project purposes and operations. The proposed conservation
easement would also support the licensee's efforts to meet its obligations under the
approved SA. For these reasons, the change in land rights application is in the public
interest and should be approved.
6 See item 4, page 4 of the proposed conservation easement agreement. These
provisions ensure the licensee retains sufficient ownership and control of the project
property to fulfill license requirements and perform any and all acts ordered by the
Commission on the subject property consistent with the principles of the "Linweave
Clause". See Linweave, Inc., 23 FERC ¶ 61,391 (1983), where the Commission first
used the provision to modify a long-term lease of project property to prevent the non-
licensee/lessor from controlling rights necessary to accomplish project purposes and to
ensure that the licensee/lessee would possess all such rights.
20191104-3032 FERC PDF (Unofficial) 11/04/2019
Project No. 803-112 - 4 -
The Director orders:
(A) Pacific Gas and Electric Company's application filed June 6, 2019, requesting
Commission approval to grant to Northern California Regional Land Trust a deed of
conservation easement and agreement for a perpetual conservation easement on
approximately 167 acres of project lands within the boundary of the DeSabla-Centerville
Hydroelectric Project No. 803 and petition for approval of text reserving its rights to
comply with the license and orders of the Commission, is approved.
(B) Within one year from the date of this order, the licensee must file with the
Commission a copy of final executed documents showing the completion of the deed of
conservation easement and agreement approved in ordering paragraph (A) above. If the
approved conservation easement and agreement has not been completed within this
timeframe, the licensee must file, instead, a report identifying the expected completion
date of the approved conservation easement and agreement and expected filing date of
the required documentation.
(C) 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 FPA, 16 U.S.C. § 825/ (2018), and the Commission's regulations at
18 C.F.R. § 385.713 (2019). 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.
Robert J. Fletcher
Land Resources Branch
Division of Hydropower Administration
and Compliance
20191104-3032 FERC PDF (Unofficial) 11/04/2019
Document Content (s)
P-803-112 Order.DOCX 1-4