HomeMy WebLinkAbout11.06.19 Email from FERC re Docket No. P-803-113 - Pacific Gas and Electric Snyder, Ashley
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Sent: Wednesday, November 6, 2019 9:36 AM
Subject: Delegated Order issued in FERC P-803-113
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On 11/6/2019,the Federal Energy Regulatory Commission (FERC),Washington D.C., issued this document:
Docket(s): P-803-113
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
http://elibrary.FERC.gov/idmws/file_list.asp?accession_num=20191106-3037
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1
20191106-3037 FERC PDF (Unofficial) 11/06/2019
169 FERC¶ 62,072
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Pacific Gas and Electric Company Project No. 803-113
ORDER APPROVING CHANGE IN LAND RIGHTS
(Issued November 6, 2019)
1. On October 15, 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—Philbrook Reservoir Planning Unit (conservation easement) on
approximately 171 acres of licensee-owned property within the project boundary.' 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.2 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),
' The proposed conservation easement involves a total of approximately 277 acres
of PG&E-owned property of which approximately 171 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.
20191106-3037 FERC PDF (Unofficial) 11/06/2019
Project No. 803-113 - 2 -
made up of an array of interests and expertise from environmental organizations, trade
associations, Native American tribes, and federal, state, and local governments.4
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 171 acres of property 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 proposed conservation easement property within the project boundary is
primarily used for power generation and is occupied by Philbrook reservoir and dam and
spillway, various access roads, a campground, a day use area, a boat ramp, and an historic
gate tender's cabin. Along the shoreline on the east end of the reservoir are 42 existing
recreational homesites.6 The property is also used for informal public recreational
4 Among others, the Stewardship Council includes the California Department of
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.
6 The recreational lots are long-standing third party uses of PG&E-owned property
that are occupied by approximately 42 cabins and 21 associated boat docks. Some of the
cabin structures and all of the docks are located within the project boundary. PG&E
manages these third party uses through existing lease/dock agreements. Sections 7 and 9
20191106-3037 FERC PDF (Unofficial) 11/06/2019
Project No. 803-113 - 3 -
activities such as fishing, boating, picnicking, swimming, and limited off-road vehicle
use.
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, with the exception of the existing cabin and dock structures noted
above, the easement agreement identifies specific prohibited activities on the property,
including, but not limited to property subdivision, construction of buildings, 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.'
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,
of the proposed conservation easement allows for these existing uses to continue under
PG&E's current management.
7 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.
20191106-3037 FERC PDF (Unofficial) 11/06/2019
Project No. 803-113 - 4 -
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.
The Director orders:
(A) Pacific Gas and Electric Company's application filed October 15, 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 171 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
20191106-3037 FERC PDF (Unofficial) 11/06/2019
Document Content (s)
P-803-113 .DOCX 1-4