HomeMy WebLinkAbout10.20.20 Board Corespondence - FW_ Answer_Response to a Pleading_Motion submitted in FERC P-2107-000 by Pacific Gas & Electric Company,et al.
From:Schuman, Amy
To:Alpert, Bruce;Bennett, Robin;Clerk of the Board;Connelly, Bill;Cook, Holly;Lambert, Steve;Lucero, Debra;McCracken, Shari;Paulsen, Shaina;Pickett, Andy;Ring, Brian;Ritter, Tami;Rodas,
Amalia;Sweeney,
Kathleen;Teeter, Doug
Subject:Board Corespondence - FW: Answer/Response to a Pleading/Motion submitted in FERC P-2107-000 by Pacific Gas & Electric Company,et al.
Date:Tuesday, October 20, 2020 11:40:54 AM
Good morning,
Please see the email below from FERC.
Amy Schuman
Associate Clerk of the Board
Butte County Administration
25 County Center Drive, Suite 200, Oroville, CA 95965
O: 530.552.3300 |D: 530.552.3308 | F: 530.538.7120
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Sent: Tuesday, October 20, 2020 10:25 AM
Subject: Answer/Response to a Pleading/Motion submitted in FERC P-2107-000 by Pacific Gas & Electric Company,et al.
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On 10/19/2020, the following Filing was submitted to the Federal Energy Regulatory Commission (FERC), Washington D.C.:
Filer: Pacific Gas & Electric Company
Winston & Strawn LLP (as Agent)
Docket(s): P-2107-000
Lead Applicant: Pacific Gas and Electric Company
Filing Type: Answer/Response to a Pleading/Motion
Description: Answer to Comments on July 30, 2020 Compliance Filing of Pacific Gas & Electric Company under P-2107.
To view the document for this Filing, click here https://urldefense.com/v3/__https://elibrary.ferc.gov/eLibrary/filelist?accession_num=20201019-
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UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
)
Pacific Gas and Electric Company ) Project No. 2107
) (Poe Project)
)
ANSWER OF PACIFIC GAS AND ELECTRIC COMPANY
TO COMMENTS ON COMPLIANCE FILING
Pursuant to Rule 213 of the Federal Energy Regulatory Commission’s (“FERC” or
1
“Commission”) Rules of Practice and Procedure, Pacific Gas and Electric Company (“PG&E”),
owner and licensee of the Poe Hydroelectric Project No. 2107 (“Poe” or “Project”), hereby
responds to the comments of American Whitewater (“AW”) and California Sportfishing Protection
Alliance (“CSPA”) filed on September 18, 2020, and the comments of Butte County Board of
Supervisors filed on October 7, 2020. As described herein, PG&E’s July 30, 2020 Compliance
Filing satisfies the requirements of Article 407 of the Project license and the Compliance Filing
does not implicate any of the limited circumstances that justify public participation in a post-
2
license compliance proceeding. Consistent with longstanding precedent, the Commission should
not provide notice and an opportunity for public participation with respect to PG&E’s Compliance
Filing.
I.BACKGROUND
On December 17, 2018, the Commission issued a new license for the Project, which is
3
Ordering paragraphs (D)
located on the North Fork Feather River in Butte County, California.
1
18 C.F.R. § 385.213.
2
See, e.g., Pacific Gas and Elec. Co., 115 FERC ¶ 61,170, at ¶ 6 (2006).
3
Pacific Gas and Electric Co., 165 FERC ¶ 62,172 (2018) (“License Order”), order on reh’g, 167 FERC ¶ 61,047
(2019) (“Rehearing Order”).
and (E) and Article 404 of the license requires PG&E to implement numerous recreation
enhancements at the Project, including whitewater boating flow releases and improvements to
numerous informal areas used for recreation along the bypassed reach of the North Fork Feather
River. These recreation enhancements at informal areas include the following:
(1) Poe Powerhouse River Access Area: improvethe access road, providetrash receptables,
install Americans with Disabilities Act (“ADA”)-compliant parking stall and portable
toilet, install signage, and add defined improvements to the parking area to reduce risks to
water quality;
(2) Bardees Bar River Access Area: improvethe access road and provide day use facilities,
including anADA-complaint vault toilet, ADA-compliant accessible parking stall, covered
trash receptable and picnic tables, pedestrian and boater access trail from the parking lot to
the river, and signage;
(3) Sandy Beach Area: improvethe access roadto Sandy Beach, including by coordinating
with Caltrans to improve the transition from the road to Highway 70, provide day use
facilities, including two ADA-accessible vault toilets, a hardened trail, an ADA-accessible
ramp from the Sandy Beach parking lot to Sandy Beach, and covered trash receptacles,
improve the Sandy Beach parking area to accommodate approximately 20 vehicles, and
install and maintain signage prescribed by the U.S. Department of Agriculture, Forest
Service (“USFS”);
(4) Poe Beach Trail: improveparking at the Poe Beach Trail trailhead, improve the switchback
trail with eight switchbacks and resting areas, and install USFS-prescribed signage; and
(5) Poe Reservoir Access Trail: create the Poe Reservoir Access Trail to provide access to the
Poe Reservoir from the Cresta Powerhouse and install signage.
2
Article 203 of the license required PG&E to file revised Exhibit G drawings that include
recreational enhancements to be made at Sandy Beach, Bardees Bar, the Bardees Bar Trail, and
Poe Beach. Other than this single reference to Bardees Bar Trail, the License Order did not discuss
Bardees Bar Trail.Bardees Bar Trail is the name of a potential trail located to the north of Bardees
Bar (upstream), connecting Bardees Bar Road with State Highway 70. During the licensing
proceeding, PG&E retained a consultant to prepare a Bardees Bar Trail Assessment in 2006 to
evaluate the feasibility of constructing this trail. The Bardees Bar Trail Assessment concluded
that “it would not be feasible or cost-effective to reconstruct a trail in the present configuration or
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location,” and found the trail would have low usage and provide low recreational value. Due to
this history and the lack of discussion regarding Bardees Bar Trail in the License Order, PG&E
challenged on rehearing the Commission’s reference to Bardees Bar Trail in Article 203 and
requested removal of therequirement to add this trail to the Exhibit G drawings. The Commission
agreed and revised Article 203 in the Rehearing Orderto remove the reference to Bardees Bar
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Trail.
In addition, in the Rehearing Order, the Commission added Article 407 to the license,
which provides as follows:
Article 407. Hiking Trail Feasibility Study. Within 9 months of
license issuance, the licensee must conduct a feasibility study on
improving an existing abandoned trail between Bardees Bar and the
Poe powerhouse road and compare the results of this study with the
information provided in PG&E’s September 2006 feasibility report
on modifying the abandoned construction road, upstream of Bardees
Bar, for use as a trail; and if feasible, based on the results of the
study, include in the Recreation Plan a schedule for constructing an
all-weather hiking trail in one of the two locations.
4
See July 30, 2020 Compliance Filing, Attachment 1, Poe Hiking Trail Feasibility Study, at pg. 4.
5
Pacific Gas and Elec. Co., 167 FERC ¶ 61,047, at Ordering Paragraph (C).
3
The Commission explained that it added this condition based on a recommendation in Commission
staff’s Environmental Assessment for the Project, which recommended that PG&E conduct a
feasibility study on improving a trail between Bardees Bar and the Poe Powerhouse Road to the
south (downstream) (“Poe Hiking Trail”) so that the Commission could determine whether PG&E
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should develop an all-weather hiking trail. No parties sought rehearing regarding Article 407.
To comply with Article 407, PG&E retainedButte County Resource Conservation District
(“RCD”) to assess the feasibility of constructing and maintaining the Poe Hiking Trail. Butte
County RCD conducted field investigations to evaluate existing conditions and prepared a report
called the “Poe Hiking Trail Feasibility Study” (“Report”), which was included in the Compliance
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Filing. The Report identifies benefits and challenges associated with a potential Poe Hiking Trail
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and includes preliminary cost estimates based on conceptual design alternatives. The primary
benefit of the trail identified in the Report is the addition of the Poe Hiking Trail to the outdoor
recreational opportunities in Butte County. Secondary benefits identified in the Report include
providing access for scientists to monitor the health of the North Fork Feather River, potential
acquisition of the private lands crossed by the potential trail, access for wildland firefighters, and
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providing winter recreation opportunities.
The Report also identifies the following challenges related to a potential Poe Hiking Trail:
(1) the trail crosses private lands and the landowner may disagree with public access; (2) two new
“expensive” trailheads would be required because the proposed trailhead locations “are not
currently suitable for parking or recreational trailhead access;” (3) the ongoing cost to maintain
the trail; and (4) the need to improve the two access roads – Bardees Bar Road and Powerhouse
6
Id. at ¶ 19.
7
July 30, 2020 Compliance Filing, Attachment 1, Poe Hiking Trail Feasibility Study.
8
Id. at pg. 3.
9
Id. at pg. 7.
4
Road – to prevent washouts from stream crossings. The Report also clarifies the current status of
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the “trail”:
Although we refer to the trail route as Poe Hiking Trail, it is
important to understand that currently this trail does not exist on the
ground as a recreational trail. The proposed alignment has great
potential to be a high-quality recreational experience but will need
multiple realignments and upgrades. In the current state the trail is
not suitable for public access and crosses private property.
The Report confirms that the “break-down of existing viable trail as compared to new construction
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needed” is 20% existing trail and 80% new trail construction.
Consistent with Article 407, the Report comparesthe potential Poe Hiking Trail to the
Bardees Bar Trail Assessment. Based on the conclusions in the Bardees Bar Trail Assessment,
Butte County RCD concluded that “the development of the Bardees Bar Trail which is an
approximately 7,531 ft trail, would come at a high cost, and would see low estimated use, and
12
would provide low recreational value.”
PG&E submitted the Report to FERC in its July 30 Compliance Filing. As explained in
its submittal letter, upon review of the Report, PG&E determined that a Poe Hiking Trail is
infeasible because the minor incremental benefits offered by such a trail are not justified by the
substantial cost. PG&E determined that the Report’s preliminary cost estimate severely
underestimates PG&E’s construction and operation costs by excluding PG&E’s actual labor costs,
material costs, and costs associated with compliance with PG&E’s construction standards.
Therefore, PG&E included in the Compliance Filing a table of its cost estimate to construct the
13
In addition, PG&E noted that, because PG&E did not
trail concept described in the Report.
10
Id. at pg. 3.
11
Id. at pg. 6.
12
Id. at pg. 4.
13
July 30, 2020 Compliance Filing, Attachment 2, PG&E’s Cost Estimate for Poe Trail Construction.
5
propose to include the lands to be crossed by the trail in its licensing proposal, the landowners are
not on notice that their properties could be included within a licensed project boundary and may
be subject to the eminent domain provision in Section 21 of the Federal Power Act. Finally, PG&E
noted that construction of the trail in such challenging terrain would create environmental impacts
and costs, especially related to mitigation, that were not assessed during the licensing proceeding.
II. DISCUSSION
PG&E’s Compliance Filing does not trigger the narrow set of circumstances that allow for
public participation in a post-license compliance proceeding. The Commission’s longstanding
practice is to limit public notice and an opportunity for public participation in post-license
compliance proceedings to a discrete set of circumstances. Specifically, the Commission will
allow for public participation in post-license compliance proceedings only in the following
circumstances: (1) if the compliance filing entails a material change in the plan of project
development or the terms of the license; (2) if the filing would adversely affect the rights of
property holders in a manner not contemplated by the license; or (3) if the filing involves an appeal
by an agency or entity specifically given a consultation role by the applicable license article under
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which the compliance filing is made.
None of these bases for public participation in a post-
license compliance proceeding are present here.
First, PG&E’s July 30, 2020 Compliance Filing, which included a transmittal letter and the
Report, does not entail a material change in the plan of Project development or the terms of the
license. Article 407 requires PG&E to conduct a feasibility study for the Poe Hiking Trail,
compare the feasibility of the Poe Hiking Trail to the feasibility of the Bardees Bar Trail, and if
14
Pacific Gas and Elec. Co., 115 FERC ¶ 61,170 (2006). See also N.Y. State Elec. and Gas Corp., 138 FERC ¶
61,190 (2012); Pacific Gas and Elec. Co., 40 FERC ¶ 61,035 (1987); Kings River Conservation Dist., 36 FERC ¶
61,635 (1986).
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feasible, include a schedule in the Recreation Plan for constructing an all-weather hiking trail in
one of the two locations.
PG&E’s Compliance Filing satisfies Article 407 and does not entail a material change in
the plan of Project development. The Compliance Filing includes a feasibility study for the Poe
Hiking Trail prepared by Butte County RCD. Butte County RCD compared the Bardees Bar Trail
Assessment to the proposed Poe Hiking Trail and concluded that “the development of the Bardees
Bar Trail which is an approximately 7,531 ft trail, would come at a high cost, would see low
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estimated use, and would provide low recreational value.” Upon review of the Report, PG&E
concluded that the Poe Hiking Trail is not feasible because the costs of constructing and
maintaining a trail in such challenging terrain is not justified by the limited recreational benefits,
the potential for adverse environmental impacts, and the location of segments of the trail on private
land. Because PG&E concluded that neither the Poe Hiking Trail nor the Bardees Bar Trail is
feasible, it did not include a schedule for the construction of either trail in the Recreation Plan
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submitted to the Commission on September 30, 2020.This result is contemplated by Article 407
and thus does not entail a material change in the plan of Project development.
AW and CSPA argue that PG&E did not comply with Article 407 because it did not
propose to construct a hiking trail in its Recreation Plan and because PG&E relied on information
not included in the study to conclude that the cost of the Poe Hiking Trail outweighs the
incremental benefits, the trail would impact private property owners, and the trail could impact
environmental resources. Article 407 does not require PG&E to propose to construct a hiking trail
in its Recreation Plan. Rather, Article 407 requires PG&E to conduct a feasibility assessment, and
15
July 30, 2020 Compliance Filing, Attachment 1, Poe Hiking Trail Feasibility Study, at pg. 4.
16
See FERC Accession No. 20200930-5007. PG&E notes that the USFS approved PG&E’s Recreation Plan by letter
dated Sept. 25, 2020, and AW, CSPA, and Butte County Board, among others, were consulted on the Recreation Plan.
See Enclosures 3 and 4 of PG&E’s Sept. 30, 2020 Recreation Plan submittal.
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if feasible, to propose a schedule for constructing a trail. As described herein, PG&E conducted
the feasibility assessment required by Article 407. In addition, Article 407 does not bar PG&E
from considering factors that are relevant to a feasibility determination. Consideration of costs
and relative benefits of any proposal are key factors in a feasibility assessment.
Second, public participation in this post-license compliance proceeding is not justified
because PG&E’s Compliance Filing would not adversely affect the rights of property holders in a
manner not contemplated by the license. Because PG&E is not proposing to construct the Poe
Hiking Trail, the rights of property owners would not be affected. On the contrary, construction
of the Poe Hiking Trail would adversely affect property owners in a manner not contemplated by
the license. In its license application, PG&E did not propose to include these lands within the
Project boundary of the new license, and these property owners have not been notified that their
lands could become part of a FERC license and potentially become subject to the eminent domain
provision of Section 21 of the Federal Power Act.
Third, none of AW, CSPA, or the Butte County Board are agencieswith management
authority over resources affected by the Compliance Filing, and Article 407 did not require
consultation with any of these entities. AW and CSPA complain that the public should have an
opportunity to comment on PG&E’s Compliance Filing and the Butte County Board states that
stakeholders were not engaged to discuss the feasibility study. Article 407 does not require PG&E
to consult with any agencies or entities. If AW, CSPA, or the Butte County Board objected to the
fact that Article 407 did not include a consultation component, this issue should have been raised
in a request for rehearing of the Commission’s order incorporating Article 407 into the license.
The license for the Project is now final and these entities cannot now try and modify the language
of Article 407 to accommodate their preferences. Notably, the USFS, which has management
8
authority over the lands on which much of the trail would be located, and the California State
Water Resources Control Board (“Water Board”) did not include in their mandatory conditions for
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the license a requirement to investigate or construct the Poe Hiking Trail or the Bardees Bar Trail.
III.CONCLUSION
PG&E’s Compliance Filing fully complies with Article 407 of the new license for the
Project and does not implicate any of the limited circumstances that justify public participation in
a post-license compliance proceeding. As described in the Compliance Filing, the Poe Hiking
Trail is infeasible because the incremental benefit attributable to such a trail does not justify the
cost to construct and maintain a trail in such challenging terrain. Further, inclusion of the Poe
Hiking Trail in the license would affect private property owners that have not been involved in the
licensing proceeding and would have environmental impacts that were not assessed during the
licensing proceeding. Accordingly, because PG&E’s July 30, 2020 Compliance Filing satisfies
Article 407, the Commission should not provide notice and an opportunity for public participation
in this post-license compliance proceeding.
Respectfully submitted,
/s/ Kimberly Ognisty
Kimberly Ognisty
1901 L Street N.W.
Washington, D.C. 20036
(202) 282-5217
kognisty@winston.com
Dated: October 19, 2020
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Condition no. 26 of the USFS’ section 4(e) conditions requires PG&E to develop a Recreation Plan that addresses
recreational enhancements at Poe Beach and Sandy Beach, and to develop a Memorandum of Understanding to
coordinate Project flows released for whitewater boating purposes. See Appendix B of License Order. Condition
no. 8 of the Water Board’s water quality certification requires PG&E to develop a Recreation Plan to address
improvements at Sandy Beach, Bardees Bar, Poe Beach, Poe Powerhouse Beach, and access to Poe Reservoir. See
Appendix A of License Order.
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