HomeMy WebLinkAbout05.01.2024 Board Correspondence - FW_ Motion to Intervene Out of Time submitted in FERC P-7242-060 by California Department of Fish and WildlifeFrom:Clerk of the Board
To:Bennett, Robin; Clerk of the Board; Connelly, Bill; Cook, Holly; Cook, Robin; Durfee, Peter; Hancock, LeAnne; Jessee, Meegan; Kimmelshue, Tod; Kitts,
Melissa; Lee, Lewis; McDonnell, Susan; Pickett, Andy; Ritter, Tami; Stephens, Brad J.; Sweeney, Kathleen; Teeter, Doug; Zepeda, Elizabeth; Loeser, Kamie
Cc:Nevers, Dawn
Subject:Board Correspondence - FW: Motion to Intervene Out of Time submitted in FERC P-7242-060 by California Department of Fish and Wildlife
Date:Wednesday, May 1, 2024 9:52:40 AM
Please see Board correspondence -
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Subject: Motion to Intervene Out of Time submitted in FERC P-7242-060 by California Department of Fish and Wildlife
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On 5/1/2024, the following Filing was submitted to the Federal Energy Regulatory Commission (FERC), Washington D.C.:
Filer: California Department of Fish and Wildlife
Docket(s): P-7242-060
Lead Applicant: STS HydroPower,
Ltd.
Filing Type: Motion to Intervene Out of Time
Description: Motion for Late Intervention of California Department of Fish and Wildlife under P-7242.
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1 BEFORE THE UNITED STATES OF AMERICA FEDERAL ENERGY REGULATORY COMMISSION ___________________________________________ ) STS Hydropower, LLC ) Project No. P-7242-060 ) Kanaka Hydroelectric Project ) Application for Surrender of License ) ___________________________________________ ) MOTION FOR LATE INTERVEN TION BY THE CALIFORNIA DEPARTMENT OF FISH AND WILDL IFE Pursuant to Rule s 212 and 214 of the Federal Energy Regulatory Commission ’s (“Commission ”) Rules of Practice and Procedure (18 C.F.R. §§ 385.212, 385.214), the
California Department of Fish and Wildlife (“CDFW ”) hereby files this Motion for Late
Intervention in the above-captioned proceeding. As explained below, CDFW meets the
requirements for intervention as set forth in Rule 214(b)1, and late intervention as set
forth in Rule 214(d). I. DESCRIPTION OF CDFW CDFW is the trustee for the State of California ’s fish and wi ldlife res ources with jurisdiction over the conservation, protection, and management of fish, wildlife, native
plants, and the habitat necessary for biologically sustainable populations of those
species. (Fish & G. Code, §§ 711.7, 1802.) This proceeding raises issues that are
important to the State of California’s policy to pres erve , conserve , and maintain the
state’s fish and wildlife resources. (Fish & G. Code, § 1801.) 1 Rule 214 refers to section 385.214 in title 18 of the Code of Federal Regulations . For
brevity, this motion hereinafter cites to Rule 214 rather than section 385.214 in the
federal regulations. DocuSign Envelope ID: 6A94FA67-C980-44CF-82A6-E1E5AE8E7956Document Accession #: 20240501-5062 Filed Date: 05/01/2024
2 II. PROC EDURAL HISTORY On April 5, 2022, STS Hydro power, LLC (“STS”) provided notice to several state
and federal agencies that its draft License Surrender Application for the Kanaka
Hydroelectric Project (FERC No. P-7242) (“Project ”) was available for review and
comment. The state agencies includ ed CDFW and the State Water Resources Control
Board (“State Water Board ”). CDFW provided comments to STS on the draft application prior to the end of the 30-day review period. On September 30, 2022 , STS filed its final license surrender application for the
Project with the Commission (“Application ”). On March 23, 2023, the Commission issued a Notice of Application for Surrender of License, Soliciting Comments, Motions to Intervene, and Protests , setting a 60-day deadline for interventions and comments. At the time, CDFW had no other comments
on the Application, and therefore did not seek to inte rvene in the proceeding prior to the
filing deadline. On May 12, 2023, the State Water Board received a water quality certification (“certification ”) application from STS for the “Removal and Decommissioning of the
Kanaka Powerhouse for the Kanaka Hydroelectric Project (FERC Project No. 7242)
License Surrender ” pursuant to section 401 of the federal Clean Water Act. (33 U.S.C. § 1341.) October 11, 2023 , the State Water Board attended a site visit with STS to assess
the existing environmental conditions of the Project as part its certification action and
environmental analys is under the California Environmental Quality Act. (Pub. Resources
Code, § 21000 et seq.) On January 31, 2024 , the State Water Board sent STS an Additional Information
DocuSign Envelope ID: 6A94FA67-C980-44CF-82A6-E1E5AE8E7956Document Accession #: 20240501-5062 Filed Date: 05/01/2024
3 Request (“AIR ”). According to the AIR, d uring the site visit, State Water Board staff identified
ongoing water diversions from Sucker Run Creek into a visibly damaged penstock with
several breaks allowing water to be discharged into the nearby forested area. Staff also
observed a recent hillslope erosion event adjacent to one of the penstock breaks. These
observations raised potential water quality concerns that STS would need address for
the State Water Board to grant certification. Among other items in the AIR, the State Water Board requested information on the duration of unapproved penstock diversions, an accounting of total penstock leaks,
proposed measures to mitigate failed culverts and hillslope instability, and an estimation
of and plan for sediment potentially entrained within the penstock. On February 14, 2024 , the Commission issued a second AIR to STS that
describ ed its concerns and request ed information similar to those in the State Water
Board ’s AIR. On February 29, 2024, STS provided responses to the State Water Board ’s and
the Commission ’s AIRs. On March 25, 2024, CDFW staff attended a site visit with STS to assess the
condition of the Project and the potential impacts to fish and wildlife resources if the
Commission to grant STS’s Application, based on the concerns the State Water Board and the Commission raised in its AIRs. On April 23, 2024, the State Water Board denied STS’s request for certification without prejudice because , according to the Stat e Water Board, STS ’s responses did
not provide adequate information to address the needs identified in State Water Board’s
AIR. DocuSign Envelope ID: 6A94FA67-C980-44CF-82A6-E1E5AE8E7956Document Accession #: 20240501-5062 Filed Date: 05/01/2024
4 III. GOVERNING LAW Under Rule 214(b)(3), motions for late intervention must “show good cause why
the time limitation should be waived” and under Rule 214(d): [T]he decisional authority may consider whether: (i ) The movant had good
cause for failing to file the motion within the time prescribed; (ii) Any
disruption of the proceeding might result from permitting intervention; (iii)
The movant’s interest is not adequately represented by other parties in the
procee ding; (iv) Any prejudice to, or additional burdens upon the existing
parties might result from permitting the intervention; and (v) The motion
conforms to the requirements of paragraph (b) of this section. Rev iewing this rule in a recent decision on a motion for late interven tion , the Commi ssion ’s Office of Administrative Law explained: Given that [the] list [in Rule 214(d)(1)] is prefaced by the language “may
consider,” the decisional authority maintains discretion in applying this
multi-factor analysis depending on the unique facts and circumstances of
the particular case. [Citation omitted.] In addressing Rule 214(d), the
United States Court of Appeals for the Ninth Circuit has stated that “the
use of the permissive ‘may’ rather than the obligatory ‘shall’ suggests that
the Commission may not only consider other, non-enumerated factors in
adjudicating a motion for untimely intervention, but can affirmatively
abstain fro m including even one or more of the enumerated factors in its
decisional calculus.” [Citation omitted.] (Viridon Mid-Atlantic LLC, et al., Order Granting Late Motion to Intervene of NYSPC ,
Docket No. EL24-60-000, et al., at p. 3 (April 23 , 20 24 ) (Satten , Chief A.L.J.).) In Iroquois Gas Transmission System, L.P., 59 FERC ¶ 61,094 (1992), the
Commission adopted a “liberal intervention policy” in similar cases, allowing intervention
far into the project analysis process, but before an order on the merits had been issued. The Commission has held that untimely intervention will not cause prejudice if the
intervention is sought prior to the final decision. (See e.g. Cent. Hudson Gas & Elec.
Corp., 41 FERC ¶ 61,313 (Dec. 15, 1987); Jack M. Fuls Tumalo Irrigation Dist., 36
FERC ¶ 61,136 (July 30, 1986).) T he Commission has gone so far as to find that the
lack of prejudice itself demonstrated “good cause shown” without examining the reason
DocuSign Envelope ID: 6A94FA67-C980-44CF-82A6-E1E5AE8E7956Document Accession #: 20240501-5062 Filed Date: 05/01/2024
5 for the delay in filing. (Superior Offshore Pipeline Co., 68 FERC ¶ 61,089 (July 19,
1994); E. Am. Energy Corp. Columbia Gas Transmission Corp., 68 FERC ¶ 61,087
(July 19, 1994).) IV. GROU NDS FOR LATE INTERVEN TION CDFW respectfully requests the Commis sion to grant CDFW ’s motion for late
intervention for the reasons discussed below with refere nce to Ru le 214 (b) and Rule
214 (d)(1). A. The Position Taken By CDFW , and the Basis in Fact and Law, Rule
214(b)(1) In satisfaction of Rule 214(b)(1), CDFW states that it is not opposed to the STS’s
Application, provided any approval of STS’s Appli cation by the Commission will
adequately protect fish and wildlife resources. B. CDFW’s Right to Participate is Expressly Conferred by Commission Rule and Statute , Rule 214(b)(2)(i) In satisfaction of Rule 214(b)(2)(i), CDFW has an expressly conferred right to
intervene and participate in this proceeding pursuant to Rule 214(a)(2), which states ,
“Any…state fish and wildlife agency …is a party to any proceeding upon filing a notice of
intervention in that proceeding….” In addition, as explained above, CDFW has a
stat utory responsibility to conserve , protect, and manage California’s fish and wildlife
resour ces on behalf of the people of California. CDFW is therefore entitled to intervene
and participate in this proceeding pursuan t to Rule 214(b)(2)(i). C. CDFW ’s Participation is in the Public Interest, Rule 214(b)(2)(iii) Because of CDFW ’s statutory responsibility to conserve , protect, and manage California’s fish and wildlife resources on behalf of the people of California, CDFW’s
participation in any matter before the Commission that could adversely affect these
DocuSign Envelope ID: 6A94FA67-C980-44CF-82A6-E1E5AE8E7956Document Accession #: 20240501-5062 Filed Date: 05/01/2024
6 resources , in this case STS’s proposal to surrender its Project license and
decommission part of the Project, is, by defi nition, in the p ublic interest. Accordingly,
CDFW believes its participation as an intervenor in this proceeding meets Rule
214(b)(2)(iii). D. Good Cause Exists for Late Intervention, Rule 214(b)(3) With reference to Rule 214(d)(1), g ood cause exists for the Commission to grant
CDFW’s motion for late intervention for the reasons explained below. 1. Rule 214(d)(1)(i) CDFW had good cause for failing to file the motion within the time prescribed. CDFW did not see the need to participate in this proceeding beyond the comments it
provided on STS’s draft application. At the tim e, CDFW was not aware of the problem s
with the Project the St ate Wat er Boa rd observed during its site visit and identified in its
AIR , which CDFW confirmed during its site visit. CDFW seeks to intervene in the
proceeding to ensu re these problems are fully addressed prior to, and if needed, as part
of the Commission’s approval of STS’s Application, which it can not do i f it is not a party
to the proceeding. 2. Rule 214 (d)(1)(ii) CDFW states that its intervention in this proceeding will not result in any
disruption of the proceeding . While STS filed its Application wi th the Commission in
September 2022, the Commission and the State Water Board submitted AIRs to STS
earlier this year . As explained ab ove, the State Water Board denied STS’s certification
application because the information STS provided in response to the State Water
Board’s AIR was inadequate. The AIRs and the State Water Board’s denial means that
although the Application was filed in late 2022, this proceeding is still at an early stage DocuSign Envelope ID: 6A94FA67-C980-44CF-82A6-E1E5AE8E7956Document Accession #: 20240501-5062 Filed Date: 05/01/2024
7 and the Application is effectively on hold un til STS submits a new request for
certification to the State Water Board. This motion for late intervention will not serve as
a basis for delaying or deferring the schedule in this proceeding. In addition, the only parties to this proceeding are STS and the State Water Board and CDFW has already made its concerns known to STS . Hen ce, CDFW’s request to interven e in this
proceeding should not surprise STS. Finally, as explained above, CDFW simply seeks
intervention to ensure the problems with the Project STS is now aware of are resolved
prior to, or as part of the Commission ’s approval of the Appli cation, not for disruptive
purposes. 3. Rule 214(d)(1)(iii) CDFW ’s interest to conserve , protect, and manag e California’s fish and wildlife
resources on behalf of the people of California is not adequately represented by any
other parties in the proceeding . STS, the applicant, obviously does not , cannot , and is
not expected to represent this interest. As explained above, th is is CDFW’s
responsibility. While CDFW ’s and the State Water Board ’s missions to protect
California’s public trust resources intersect, they are separ ate state agencies with their
own statutory , regulatory, and permitting authori ties that bring different expertise to this
proceeding. Specifically, the State Water Board’s role in this proceeding is to ensu re
that the project describ ed in the Application complies with a pplicable water qu ality standards . CDFW’s role , while complementary, is broader with a focus on protecting
aquatic and terrestrial sp ecies and the habitats they depend on. In short, neither agency
can serve as a substitute for the other. Accordingly, CDFW believes the other part ies to
this proceeding can represent CDFW’s interest . DocuSign Envelope ID: 6A94FA67-C980-44CF-82A6-E1E5AE8E7956Document Accession #: 20240501-5062 Filed Date: 05/01/2024
8 4. Rule 214(d)(1)(iv) Should the Commission grant CDFW’s motion for late intervention , it would not
result in any prejudice to, or additional burdens upon, the existing parties . As explained
above , in the event the problems the State Water Board identified in its AIR which STS
is now aware of are not fully addressed prior to, or if needed, as part of the
Commission’s approval of STS’s Application, CDFW, a s a party to the proceeding, can seek redress. Rule 214(d)(1)(v) Finally, this motion conforms to the requirements of Rule 214(b). Specifically, as
set forth above in Section IV.A-C, this motion conforms to the requirements of Rule
214 (b)(1) and (2), and as set forth above in thi s Section IV.D this motion c on forms to
the requirem ents of Rule 214(b)(3). V. COMMUNICATIONS CDFW requests the Commission to place on the official service list for this
proceedin g and to direct a ll communications and correspondence related to this filing
and the proceeding to the following persons: Michael Maher Region 2 FERC Coordinator California Department of Fish and Wildlife 1701 Nimbus Road, Suite A Rancho Cordova, CA 95670 michael.maher@wildlife.ca.gov Stephen Puccini Office of General Counsel California Department of Fish and Wildlife P.O. Box 944209 Sacramento, CA 94244-2090 stephen.puccini@wildlife.ca.gov DocuSign Envelope ID: 6A94FA67-C980-44CF-82A6-E1E5AE8E7956Document Accession #: 20240501-5062 Filed Date: 05/01/2024
9 VI. CONCLUSION For the foregoing reasons, CDFW res pectfully requests the Commission to grant
CDFW’s motion for late interven tion in this proceeding. Dated : April 30 , 2024 Respectfully Submitted, CALIFORNIA DEPARTMENT OF FISH AND
WILDLIFE _______________________ Morgan Kilgour Regional Manager North Central Region
DocuSign Envelope ID: 6A94FA67-C980-44CF-82A6-E1E5AE8E7956Document Accession #: 20240501-5062 Filed Date: 05/01/2024
CERTIFICATE OF SERVICE I hereby certify that I have on th is 30 th day of April 2024, caused the foregoing
document MOTION FOR LATE INTERVENTION BY THE CAL IFORNIA
DEPARTMENT OF FISH AND WILDLIFE to be served by email upon each party
identified in the official service list compil ed by the Secretary of the Commission in this
proceeding. ______________________________ Michael Maher Region 2 FERC Coordinator California Department of Fish and Wildlife DocuSign Envelope ID: 6A94FA67-C980-44CF-82A6-E1E5AE8E7956Document Accession #: 20240501-5062 Filed Date: 05/01/2024
Document Content(s)
20240430_CDFW_Kanaka_Intervention.pdf .....................................1Document Accession #: 20240501-5062 Filed Date: 05/01/2024