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1050 Thomas Jefferson Street, NW

Seventh Floor
Washington, DC 20007
(202) 298-1800 Phone
(202) 338-2416 Fax

John H. Clements
jhc@vnf.com
202-298-1933

December 27, 2017

Ms. Kimberly D. Bose


Secretary
Federal Energy Regulatory Commission
888 First Street, NE
Washington, DC 20426

Re: Utah Board of Water Resources


Lake Powell Pipeline Project No. 12966

Utah Board of Water Resources and Washington County


Water Conservancy District’s
Petition for Declaratory Order on Jurisdiction,
Motion for Expedited Action,
and Motion for Suspension of Procedural Schedule

Dear Secretary Bose:

Please find the referenced Petition for Declaratory Order and other relief and a
Petition for Exemption in Lieu of Filing Fee. If you have any questions concerning this
pleading please contact me by telephone or email.

Sincerely,

/s/ John H. Clements


John Clements

Counsel for Utah Board of Water


Resources and Washington County
Water Conservancy District

Attachments
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION

Utah Board of Water Resources ) Docket No. EL17-___

UTAH BOARD OF WATER RESOURCES AND WASHINGTON COUNTY


WATER CONSERVANCY DISTRICT’S
PETITION FOR DECLARATORY ORDER ON JURISDICTION,
MOTION FOR EXPEDITED ACTION,
AND MOTION FOR SUSPENSION OF PROCEDURAL SCHEDULE

Pursuant to Rule 207(a)(2) of the Rules of Practice and Procedure of the Federal

Energy Regulatory Commission (“FERC” or “Commission”), 1 the Utah Board of Water

Resources (“UBWR”), license applicant for the Lake Powell Pipeline Project, FERC

Project No. 12966 (“Project”), and the Washington County Water Conservancy District

(“WCWCD”), the principal beneficiary of the Project, respectfully petition the

Commission to issue a declaratory order stating that the Commission’s licensing

jurisdiction under the Federal Power Act 2 (“FPA”) includes all of the Project facilities

identified in the license application as the “Hydro System,” in particular, the penstock

alignments. 3

As discussed herein, the Commission has explicitly recognized the penstock

alignments as jurisdictional facilities since the beginning of this proceeding in 2008. The

Ready for Environmental Analysis Notice (“REA Notice”) issued on December 11,

1
18 C.F.R. § 385.207(a)(2) (2017).
2
16 U.S.C. §§ 791-823d (2012).
3
Under 18 C.F.R. § 381.302(b), no fee is required to file a petition for issuance of a declaratory order that
solely concerns the issuance of a hydroelectric project license under FPA Part I. Accordingly, and pursuant
to 18 C.F.R. § 381.302(c), UBWR is submitting of same date a petition for exemption in lieu of filing fee.
2017, 4 however, creates great uncertainly by stating that the Commission has not decided

if the penstock alignments are jurisdictional. This uncertainty may also cause UBWR

and other parties to expend substantial resources exercising procedural rights under FPA

Sections 4(e) and 33 5 for no reason or, depending on how the U.S. Department of the

Interior (“Interior”) responds to the REA Notice, could make it unclear when or if

UBWR and others will be able to exercise their procedural rights.

There is no need for this uncertainty and risk because it is clear under the FPA

and Commission precedent that the penstock alignments are project works in a complete

unit of development for the generation of hydroelectric power and therefore subject to the

Commission’s licensing jurisdiction. The Commission can easily rectify this

unprecedented and extraordinary situation by making the threshold determination of its

jurisdiction. Although UBWR is reluctant to seek any delay of the application for this

major new infrastructure project which is for the public benefit, clarity regarding the

Commission’s jurisdiction is necessary to ensure that UBWR, WCWCD, Interior, and all

other participants preserve their statutory rights while not wasting time and resources.

Therefore, pursuant to Rule 212 of the Commission’s Rules, 6 UBWR and WCWCD

move the Commission to suspend the licensing proceeding immediately, and act

expeditiously by issuing a declaratory order finding that the penstock alignments are

subject to its licensing jurisdiction by the Commission’s February 15, 2018 open meeting

date.

4
Notice of Application Accepted for Filing, Soliciting Motions to Intervene and Protests, Ready for
Environmental Analysis, and Soliciting Comments, Recommendations, Term and Conditions, and
Prescriptions, Project No. 12944-004 (issued Dec. 11, 2017) (“REA Notice”).
5
16 U.S.C. §§ 797(e) and 823d(a).
6
18 C.F.R. § 385.212.

2
I. COMMUNICATIONS

All pleadings and other correspondence regarding this petition should be sent to

the persons listed below, and such persons should be placed on the official service list

maintained by the Commission for this proceeding:

Michael A. Swiger Joel Williams


John H. Clements Assistant Director
Van Ness Feldman, LLP Utah Board of Water Resources
1050 Thomas Jefferson St., NW 1594 W. North Temple
Seventh Floor Salt Lake City, UT 84114
Washington, DC 20007 Tel: (810) 538-7249
Tel: (202) 298-1800 joelwilliams@utah.gov
Email: mas@vnf.com
jhc@vnf.com Barbara Hjelle
Asst. Manager & General Counsel
553 E. Waterworks Drive
St. George, UT 84770
Tel: (435) 668-5281
bhjelle@utah.gov

II. BACKGROUND

On March 4, 2008, the UBWR filed its Notification of Intent (“NOI”) and Pre-

Application Document (“PAD”). 7 On May 5, 2008, the Commission issued public notice

of the commencement of the licensing proceeding, environmental scoping, request for

comments on the PAD and NOI, and identification of issues and associated study

requests. 8

As described in the PAD, the Project comprised four systems: (1) Water Intake

System, (2) Water Conveyance System (the uphill segment of the pipeline), (3) Hydro

7
UBWR, Notice of Intent to File Application for Original License and Request for Designation as Non-
Federal Representative, Project No. 12966-001 and Pre-Application Document (“PAD”), Project No.
12966-001(filed Mar. 4, 2008).
8
Notice of Intent to File License Application, Filing of Pre-Application Document, Commencement of
Licensing Proceeding, and Scoping; Request for Comments on the PAD and Scoping Document, and
Identification of Issues and Associated Study Requests, Project No. 12966-001(issued May 5, 2008).

3
System (the downhill segment), and (4) Cedar Valley Pipeline System. 9 The Hydro

System will “consist of 95-miles of 69-inch inside diameter buried penstock, . . . in-line

hydro units . . . a pumped storage hydro station” and associated transmission lines and

other facilities. 10 PAD Figure 1-1 depicts the Hydro System in red to include the pipeline

from its highest point and to the last and lowermost hydroelectric generating facility at

Sand Hollow Reservoir.

In 2008, the Commission issued Scoping Document 1 (“SD1”) and Scoping

Document 2 (“SD2”), 11 both of which state “[t]he Commission has jurisdiction with

regard to the Hydro System.” 12

Also in 2008, UBWR filed a Proposed Study Plan (“PSP”), 13 followed by a

Revised Study Plan (“RSP”). 14 In 2009, the Commission issued its Study Plan

Determination (“SPD”). 15 Also in 2009, the Commission executed a Memorandum of

Understanding (“MOU”) 16 between itself and the Bureau of Land Management (“BLM”)

for preparation of an environmental impact statement (“EIS”) for the Project, with the

Commission as the lead agency and BLM as a Cooperating Agency.

9
PAD at 1-1. The Cedar Valley Pipeline System was later removed from the Project.
10
Id. at 4-11.
11
Scoping Document 1, Project No. 12966-001 (issued May 5, 2008) (“SD1”); Scoping Document 2,
Project No. 12966-001 (issued Aug. 21, 2008) (“SD2”).
12
SD1 at 3; SD2 at 3. See also SD1 at 9 (“We want to make it clear, however, that the Commission only
has jurisdiction over the part of the pipeline that pertains to the Hydro System”); id.at 19 (“All comments
on the draft EIS filed with the Commission will be considered in the Commission’s decisions on the Hydro
System license application.”).
13
UBWR Proposed Study Plan, Project No. 12966-000 (filed Aug. 21, 2008) (“PSP”).
14
UBWR Revised Study Plan, Project No. 12966-000 (filed Dec. 22, 2008) (“RSP”).
15
Study Plan Determination, cover letter to Eric Millis, UBWR, from J. Mark Robinson, FERC, at 1-2,
Project No. 12966-001 (issued Jan. 21, 2009).
16
Memorandum of Understanding between the Federal Energy Regulatory Commission and the Bureau of
Land Management for the Lake Powell Pipeline Project EIS, Project Nos. 12966-000, -001 (filed Mar. 9,
2009) (“MOU”).

4
Thereafter, UBWR implemented the Study Plan, circulated a Preliminary

Licensing Proposal (“PLP”) in December 2015, 17 and, on May 2, 2016, filed the final

license application. 18

The Commission issued a tendering notice on May 6, 2016, 19 and an Additional

Information Request (“AIR”) on July 25, 2016. UBWR responses to the AIR are

substantially complete. On December 11, 2017, the Commission issued the REA Notice.

The REA Notice states that the Commission has jurisdiction over the electric generating

equipment and transmission lines, but that “the Commission has not yet determined

whether these water delivery pipelines will be included as part of the licensed hydro

facilities.” 20

III. ARGUMENT

A. Summary of Argument

Until the REA Notice was issued, Commission documents repeatedly

acknowledged over nine years the Commission’s jurisdiction over the penstock

alignments of the Hydro System. Indeed, that is consistent with FERC being the lead

agency for the EIS.

The REA Notice’s startling departure of the prior finding in this regard creates an

unnecessary state of confusion with regard to the Commission’s jurisdiction. That

17
Application for Original License – Preliminary Licensing Proposal – The Lake Powell Pipeline Project,
Project No. 12966-000 (filed Dec. 2, 2015). The PLP also includes the penstock alignments in the Hydro
System. Id. at 1-3.
18
Application for Original License, Integrated Licensing Process, The Lake Power Pipeline Project,
Project No. 12966-004 (filed May 2, 2016) (“License Application”).
19
Notice of Application Tendered for Filing with the Commission and Establishing Procedural Schedule
for Licensing and Deadline for Submission of Final Amendments, Project No. 12966-004 (issued May 6,
2016).
20
REA Notice at 2-3.

5
creates in turn confusion about the status under FPA Sections 4(e) and 33 of preliminary

conditions provided by the BLM for the penstock alignments in the approximately 50

miles of the Hydro System that would traverse BLM lands (the “Southern Route”) or the

approximately 16.5 miles of the Hydro System that would traverse the Kaibab Indian

Reservation and thus be subject to Section 4(e) conditions submitted by the Bureau of

Indian Affairs (“BIA”) if the Commission were to select that route for the pipeline over

UBWR’s proposed Southern Route. UBWR or other parties may request a trial-type

hearing (“TTH”) or propose alternative 4(e) conditions only to have the Commission later

find it does not have jurisdiction over penstock alignments on Interior lands, resulting in

a needless waste of considerable resources. If, however, Interior does not submit

preliminary 4(e) conditions because the Commission has failed to identify those parts of

the Project on BLM or reservation lands subject to Section 4(e), how and when the

parties may exercise their rights under Sections 4(e) and 33(a) become unclear at best. 21

It is no answer to say that the Commission will reveal its jurisdiction at an

unspecified future time. Under the FPA and Interior’s implementing regulations,

UBWR’s right to challenge Interior’s 4(e) conditions is triggered when BLM and/or BIA

file preliminary conditions in response to the Commission’s REA Notice. Moreover,

jurisdiction is a threshold determination and should precede establishment of conditions

to protect the public interest.

21
Interior’s regulations implementing the TTH and alternatives provisions of Sections 4(e) and 33(a) state
that Interior will file its preliminary 4(e) conditions in response to the REA Notice and that TTH requests
and alternative conditions must be filed within 30 days of Interior’s filing of the preliminary 4(e)
conditions. 43 C.F.R. § 45.4 (2017). However, the Commission may not impose a deadline on Interior for
filing of 4(e) conditions leaving open the possibility that Interior could file its 4(e) conditions even after the
Commission’s issuance of a license order in which it decides the jurisdictional question. See City of
Tacoma v. FERC, 460 F.3d 53, 64-65 (2006). This would effectively obviate the parties’ rights under
Sections 4(e) and 33(a).

6
There is also no reason for the Commission to equivocate on its jurisdiction. The

penstock alignments are fully integrated with and create the head that enables the in-line

units’ turbines to generate electricity. They are beyond any doubt “necessary” to

development of, and used and useful in connection with a “complete unit of

development” as those terms are used in FPA.

The needless ambiguity and potential waste of considerable resources occasioned

by the REA Notice is entirely avoidable if the Commission restores this proceeding to the

same posture as every other hydroelectric licensing proceeding, i.e., the Commission’s

jurisdiction is clear before the Commission undertakes to process the license application.

Therefore, UBWR requests that the Commission suspend the procedural schedule until it

issues a declaratory order affirming that the penstock alignments are subject to its

licensing jurisdiction and act expeditiously so that the licensing process can timely move

forward.

B. The Commission Has Consistently Treated the Penstock Alignments


as Jurisdictional Since the Inception of the Proceeding in 2008.

As described in the PAD, the Project would comprise four systems: (1) Water

Intake System (pumping facilities at Lake Powell), (2) Water Conveyance System (the

uphill portion), (3) Hydro System, and (4) Cedar Valley Pipeline System. 22 The PAD

described the Hydro System to “consist of 95-miles of 69-inch inside diameter buried

penstock, . . . in-line hydro units . . . a pumped storage hydro station” and associated

transmission lines and other facilities. 23 PAD Figure 1-1 (Attachment 1) clearly depicts

the Hydro System in red to include the penstock alignments beginning at the pipeline’s

22
PAD at 1-1.
23
Id. at 4-11 (emphasis added).

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highest point and terminating at the last and lowermost hydroelectric generating facility

at Sand Hollow Reservoir. PSP Figure 1 (Attachment 2) does the same.

SD1 described the Hydro System to “include[] large diameter penstocks, seven

powerhouses and regulating tanks, a forebay, pumped storage hydro facility, an afterbay,

and associated power transmission facilities and equipment (See figure 1).” 24 Figure 1

clearly depicts the Hydro System in red. The “large diameter penstocks” are

unquestionably the pipeline segments between, and which provide the head for, the in-

line hydro generating units. SD1 also states “[t]he Commission has jurisdiction with

regard to the Hydro System” and at other places affirms that the Hydro System is

jurisdictional. 25 UBWR accepted the Commission’s jurisdictional determination and, to

UBWR’s knowledge, no other participant questioned it. SD2 includes the same

description of the Project and repeats the statement of the Commission’s jurisdiction. 26

In 2009, the Commission executed the MOU between itself and BLM for

preparation of the EIS for the Project, with the Commission as the lead agency and BLM

as a Cooperating Agency. The MOU states that the Integrated Licensing Process (“ILP”)

will be used “to prepare the information needed by both the FERC and the BLM to make

necessary decisions on authorizations within their respective jurisdictions, including

decisions on the licensing of the hydro system,” which is defined in the MOU to include

the “large diameter penstocks.” 27

24
SD1 at 4 (emphasis added).
25
Id. at 3, 9 (“We want to make it clear, however, that the Commission only has jurisdiction over the part
of the pipeline that pertains to the Hydro System”); id. at 19 (“All comments on the draft EIS filed with the
Commission will be considered in the Commission’s decisions on the Hydro System license application.”)
26
SD2 at 3, 4. The Hydro System is also differentiated in the SD2 from the other systems. See id. at 3, 23.
27
MOU at 1, 2.

8
In its PSP, UBWR modified the specific Hydro System facilities, but did not alter

inclusion of the penstock alignments from the high point to the lowermost generating

facility at Sand Hollow Reservoir. 28 UBWR’s RSP likewise defined the Hydro System

as “including penstocks and hydro stations.” 29 The Commission’s SPD affirmed its

jurisdictional determination by stating that the Commission’s ILP is being used for “the

Hydro System licensing” and defining the Hydro System to include “large diameter

penstocks.” 30 Likewise, when UBWR applied for and the Commission issued a

successive permit in 2011, the penstock alignments from the high point of the pipeline

were included in the proposed hydroelectric project description. 31

Thereafter, UBWR implemented the Study Plan, circulated its PLP in December

2015, 32 and, on May 2, 2016, filed the final license application. Exhibit A to the license

application, the Project Description, includes the Hydro System penstock alignments as

previously described, consistent with the Commission’s prior statements claiming

jurisdiction over those facilities. 33 Nothing in the public record until the REA Notice was

issued contradicts the Commission’s prior jurisdictional determination or indicates in any

way the Commission was contemplating doing so. While the Commission may alter its

conclusions regarding jurisdiction if new facts or law are brought to its attention, 34

28
PSP at Figure 1.
29
RSP at iii, Figures 3 and 5.
30
SPD Cover Letter, supra note 15, at 1-2.
31
See Application for Successive Preliminary Permit at 8, Project No. 12966-002 (filed Feb. 1, 2011);
Utah Board of Water Res., 135 FERC ¶ 62,156 at P 2 (2011).
32
The PLP also identifies the penstock alignments as part of the Hydro System. See PLP at 1-3.
33
License Application, Exhibit A at A-18 to A-20.
34
See, e.g., Chippewa & Flambeau Improvement Co. v. FERC, 325 F.3d 353, 358 (D. C. Cir. 2003)
(FERC not precluded from revisiting jurisdiction based on change in definition of navigable waterway and
licensing of downstream projects).

9
neither the facts nor the law have changed in any relevant way since the Commission

asserted jurisdiction over the penstock alignments in 2008.

C. The Hydro System Penstock Alignments Are Project Works in a


Complete Unit of Development and Therefore Subject to the
Commission’s Licensing Jurisdiction.

The Commission’s jurisdiction to issue licenses for hydroelectric projects under

Part I of the FPA is set forth in Section 4(e), which authorizes the Commission, in

pertinent part:

To issue licenses . . . for the purpose of constructing, operating, and


maintaining dams, water conduits, reservoirs, power houses, transmission
lines, or other project works necessary or convenient for . . . the
development, transmission, and utilization of power. 35

“Project works” are defined as “the physical structures of a project.” 36 The FPA defines

a “project” as:

[a] complete unit of improvement or development [of hydropower],


consisting of a power house, all water conduits, all dams and appurtenant
works and structures . . . which are a part of said unit, and all storage,
diverting or forebay reservoirs directly connected therewith, . . . all
miscellaneous structures used and useful in connection with said unit or
any part thereof, and all water-rights, rights-of-way, ditches, dams,
reservoirs, lands, or interests in lands the use and occupancy of which are
necessary or appropriate in the maintenance and operation of such unit. 37

The penstock alignments for the Hydro System are clearly “water conduits” that

are “necessary” for the generation of power because they provide the head necessary for

the turbines of the in-line generating facilities to operate.

The Commission’s determination at the beginning of this licensing process that

the penstock alignments are jurisdictional is entirely consistent with the Commission’s

35
16 U.S.C. § 797(e) (emphasis added).
36
Id. § 796(12).
37
Id. § 796(11) (emphasis added).

10
longstanding, comprehensive interpretation of “complete unit of development” and

“project works” so as to ensure that all facilities “necessary or convenient” to power

generation and transmission are included in licenses. For instance, the San Gorgonio

Project No. 344 38 operated for domestic and irrigation water supply and power

generation, seven miles of canals (flowlines) and penstocks. 39 After the project ceased to

operate the Commission rejected the licensee’s argument that it was no longer

jurisdictional except to the extent the Commission could approve a license surrender.

The . . . Project includes diversion dams, forebay tanks, canals,


powerhouses, and transmission lines. These are all project works
“necessary or convenient” for the “development, transmission, and
utilization of power” within the meaning of Section 4(e) of the FPA.
Although some of them were originally constructed for water delivery
purposes, others were added “for the purposes of developing electric
power” within the meaning of Section 23(b)(1) of the FPA, and could not
lawfully be constructed, operated, or maintained without a Commission
license. The addition of project works for the development of power made
all of the “physical structures” of the project “used and useful” in
connection with the project as a “complete unit of development,” and
required inclusion of all rights, structures, lands, and interests “necessary
or appropriate in the maintenance and operation of such unit” within the
meaning of Sections 3(11) and 3(12) of the FPA. 40

San Gorgonio is not an outlier. The Commission has consistently found that consumptive

use water conveyance facilities also necessary to power generation require licensing,

even when primary purpose of the project is water supply. For example:

• President Project No. 176, which included 13.5-miles of tunnels, flumes, concrete

canals, originally constructed for municipal and irrigation water supply. 41

38
S. Cal. Edison Co., 106 FERC ¶ 61,212 at P 2 (2004).
39
See Final Environmental Assessment, Application for Surrender of License, San Gorgonio Project at 1
(Figure 1), Project No. 344-023 (issued July 3, 2013).
40
S. Cal. Edison Co., 106 FERC ¶ 61,212 at P 15.
41
Escondido Mut. Water Co., 6 FERC ¶ 61,189 at p. 61,377 (1979), aff’d in pertinent part, Escondido
Mut. Water Co. v. FERC, 692 F.2d 1223 (9th Cir. 1983) (affirming that the Commission’s jurisdiction is

11
• El Dorado Project No. 184, which includes a 22.3-mile-long canal, and a

diversion from the canal into a 2.8-mile-long pipeline and penstock. 42

• Upper Mountain Project No. 2761, which included: a 5.4-mile-long tunnel to a

reservoir, which discharged into a 2.5-mile-long pipeline connected to a 3.3-mile-

long tunnel, which led to a 3.8-mile-long conduit to a powerhouse, which

discharged into a 3.5-mile-long conduit to another powerhouse, which discharged

into an 8-mile-long conduit system conveying the water to a third powerhouse. 43

• Escondido Project No. 176, which included a 13.5-mile-long canal, a tunnel

nearly one mile long, and over a mile of pipeline. 44

All of these water conveyance facilities were determined to be jurisdictional and included

in the project license. Similarly, the Commission finds storage dams upstream from

project reservoirs which are regulated to supply water for generation downstream to be

“used and useful” and therefore part of the complete unit of development if they make

even a very small contribution to additional generation. 45

The decision of the Commission’s predecessor agency, the Federal Power

Commission (“FPC”) in Department of Water Resources of the State of California, 46

(“California Aqueduct”), Project No. 2426, stands for the principle that the Commission’s

not removed because generation of electric power is incidental to the primary purpose of a facility and
rejecting argument that jurisdiction was limited to power generating components of the project).
42
Pac. Gas & Elec. Co., 13 FERC ¶ 62,269 at p. 63,335 (1980).
43
See El Dorado Irrigation Dist., 29 FERC ¶ 61,375 at p. 61,788 (1984), modified on other grounds by, 48
FERC ¶ 62,127 (1989). All of these facilities were specifically found to be part of the unit of development.
Id. at p. 61,788 n.2 (distinguishing downstream water supply reservoir).
44
Escondido Mut. Water Co., 6 FERC ¶ 61,189 at p. 61,460 (Ordering Paragraph (B-2)(ii)(2)).
45
E.g., Ga. Pac. Corp., 91 FERC ¶ 61,047 at p. 61,171 (2000) (2.4 to 4.9 percent increase in generation);
Chippewa & Flambeau Improvement Co., 112 FERC ¶ 61,115 at P 4 (2005) (3.45 percent increase).
46
51 FPC 529 (1974).

12
comprehensive jurisdiction is not unlimited, but that decision is consistent with the

inclusion of the Hydro System penstock alignments in a complete unit of development

subject to licensing under the FPA. There, the California Department of Water

Resources filed a license application that encompassed the entire California Aqueduct

System, a massive network of aqueducts, canals, pipelines, and tunnels exceeding 700

miles, pumping stations, dams, and power plants which carries water from Northern

California to Southern California. A hearing examiner’s decision on various issues,

including the extent of the FPC’s jurisdiction, found that the entire California Aqueduct

System was jurisdictional. 47 However, the FPC found on exceptions that it was “neither

required nor necessary under the [FPA]” to include in the licensed project the hundreds of

miles of canals, pumping stations, and other associated facilities “unrelated to the

production of power.” 48 The order cited prior cases in which the FPC “licensed the

power drops but not the basic canal or water course.” 49

Commission jurisdiction over the penstock alignments of the Hydro System is

consistent with California Aqueduct because the penstock alignments are directly related

to power production; they are fully integrated with and create the head necessary for

power production by the in-line generating equipment. In contrast, the portion of the

Project not directly related to the production of power—the segment running uphill from

47
Id. at 541.
48
Id. at 529, 533.
49
Id. at 534 n.1 (citing City & Cty. of Denver, 10 FPC 766, 767 (1951); City & Cty. of Denver, 29 FPC 192
(1963), order on reh’g, 35 FPC 1135 (1966); Niagara Mohawk Power Corp., 32 FPC 1404, 1405 (1964)
(“Erie Canal”); Niagara Mohawk Power Corp., 39 FPC 872 (1968) (“Oswego River”). The FPC order also
cited a license order (W. Mass. Elec. Co., 39 FPC 723 (1968)) that excluded transmission lines found not to
be primary lines (i.e., transmission lines beyond the interconnection of the hydroelectric project with the
interstate transmission grid), but such facilities are not at issue here.

13
the intake at Lake Powell to the highest point—was reasonably excluded from the

licensed project because it is not directly related to the generation of power.

Moreover, California Aqueduct did not limit the Commission’s licensing

jurisdiction for that project to power generating equipment. The order licensed the Devil

Canyon development, which included a 4-mile-long, 13-foot-diameter tunnel, 50 the

Pyramid (now Warne) development, which includes a 2-mile-long canal and a 5.5-mile

pipeline, 51 and the Castaic development, which includes a 7.2-mile-long, 30-foot-

diameter tunnel conveying water to the powerplant. 52 Several of these water conveyance

facilities are less directly related to the generating equipment than the penstock

alignments in the Hydro System. In sum, for Project No. 2426, the Commission applied

a rule of reason to include the water conveyance facilities directly related to generation of

power and exclude the facilities that are not, 53 just as it did when it found that the

penstock alignments for the Hydro System are jurisdictional. There is simply no reason

to revisit that determination going forward.

50
Dep’t of Water Res. of Cal., 2 FERC ¶ 61,258 at p. 61,065 (Ordering Paragraph (B)(ii)) (1978) (“P-2426
License Order”), amended grounds by, 41 FERC ¶ 62,301 at p. 63,704 (Ordering Paragraph (A)) (1987)
(amending Ordering Paragraph (B)(ii)(1) of the P-2426 License Order).
51
Id. See also South SWP Final Pre-Application Document at 3-4, 3-5, FERC Project No. 2426-227 (filed
Aug. 1, 2016) (“P-2426 PAD”).
52
Id. at 3-4, 3-5, 3-9. The orders cited in California Aqueduct (see note 48, supra) are also factually
distinguishable from the situation at hand. In Erie Canal and Oswego River, the projects were located on
waterways already managed for navigation independent of the generating facilities. Here, the Hydro
System penstock alignments are not a canal or watercourse but facilities necessary to generate power.
Moreover, Erie Canal and Oswego River are outliers because they are inconsistent with the Commission’s
otherwise virtually universal practice of including in the unit of development non-federal dams that create
the head for licensed projects.
53
The Commission’s more recent order concerning Gross Reservoir Project No. 2035 which disclaimed
jurisdiction over consumptive use water conveyance facilities related to a licensed project is not to the
contrary. There, the Commission rejected an intervenor’s request to include in the licensed project an
extensive system of canals, pipes, and tunnels through which the licensee gathers and delivers water for
consumptive use. Unlike the case here, the facilities in question were separated from the project reservoir
by a stretch of free-flowing river and so contributed nothing to the generation of power. See City & Cty. of
Denver, Colo., 94 FERC ¶ 61,313 at p. 62,158, order on reh’g on other grounds, 95 FERC ¶ 61,222
(2001).

14
D. The Commission’s Failure to Settle Its Jurisdiction Creates Confusion
and May Result in a Considerable and Needless Waste of Resources.

The Commission has held, quite rightly, that “[j]urisdiction is a threshold

determination under the FPA. In other words, we must first find that a project work

requires licensing before we may require conditions to protect the public interest in

accordance with FPA Section 10(a).” 54 As explained below, the need to establish the

Commission’s jurisdiction at the outset is no less compelling where Section 4(e)

conditions are concerned.

Section 241 of the Energy Policy Act of 2005 (“EPAct”) amended FPA Section

4(e) to provide that any party to a license proceeding before the Commission is “entitled

to a determination on the record, after opportunity for an agency trial-type hearing . . . on

any disputed issues of material fact with respect to mandatory conditions” developed by

Interior for inclusion in a hydropower license. 55 EPAct Section 241 also added a new

FPA Section 33 allowing any party to the license proceeding to propose an alternative

condition or prescription, and specifying the consideration that Interior must give to such

alternatives.

The REA Notice’s muddying of the waters regarding Commission jurisdiction

creates needless confusion regarding its jurisdiction and, consequently, regarding the

status under Sections 4(e) and 33 of the FPA of any preliminary conditions provided by

BLM for the 50 miles of penstock alignments in the Hydro System that would traverse

BLM lands using the Southern Route, or provided by BIA for the 16.5 miles of penstock

54
Chippewa & Flambeau Improvement Co., 112 FERC ¶ 61,115 at P 18.
55
Pub. L. 109-58, § 241, 119 Stat. 594, 674 (2005).

15
alignments in the Hydro System that would traverse the Kaibab Indian Reservation under

the alternative route.

Interior’s regulations implementing Sections 4(e) and 33 are designed to work

within the context of the Commission’s licensing process. Under Interior’s regulations,

UBWR, WCWCD, and other parties’ right to challenge BLM or BIA’s 4(e) conditions is

triggered when the agency files its preliminary 4(e) conditions in response to the

Commission’s REA Notice. Within 30 days from the agency’s preliminary conditions, a

participant must file its request for a TTH. 56 Alternatives to preliminary 4(e) conditions

pursuant to Section 33 must also be filed within 30 days. 57 Either action sets in motion

the process for resolving these issues. A TTH is to be completed on an expedited

schedule so that it does not unduly delay the Commission’s licensing process. 58

Likewise, the alternatives process requires any revised alternatives to be filed within 20

days of the conclusion of a trial-type hearing. 59 These processes were specifically

designed to conclude before the Commission issues its draft EIS, as shown on the ILP

licensing process timeline posted on the Commission’s own website. 60

If Interior submits preliminary 4(e) conditions and UBWR or other parties request

a TTH under Section 4(e) and/or propose alternative 4(e) conditions under Section 33(a),

and the Commission ultimately determines that it does not have jurisdiction over the

pipelines crossing Interior lands, then the parties will have expended considerable

56
See 43 C.F.R. § 45.4(a), 45.21(a)(2)(i).
57
See id. § 45.71(a)(2)(i).
58
The hearing timetable, which concludes in about six months, is set forth at 43 C.F.R. § 45.4. As shown
there, the time frames are very tight.
59
Id. § 45.72(a).
60
See FERC, Processes for Hydropower Licenses, https://www.ferc.gov/resources/processes/flow/hydro-
6.asp (last visited Dec. 21, 2017).

16
resources for nothing. If, on the other hand, Interior does not submit preliminary 4(e)

conditions in response to the REA Notice because the Commission has failed to identify

those parts of the Project on lands managed by Interior that are subject to Section 4(e),

how and when the parties may exercise their rights under Sections 4(e) and 33(a) become

unclear at best.

UBWR, WCWCD, Interior, and other parties should not be forced out of a sense

of caution to expend their resources on trial-type hearings and other procedures

specifically designed for contesting preliminary 4(e) conditions unless those procedures

really do apply. Neither should they be put in a position of potentially waiving those

rights if the Commission ultimately determines, as it should, that it has licensing

jurisdiction over the Hydro System portion of the pipeline. That is particularly so when

the Commission has had before it for nine years all the information needed for it to

resolve any lingering question on the threshold issue of jurisdiction.

IV. MOTION FOR SUSPENSION OF PROCEDURES AND MOTION FOR


EXPEDITED ACTION

UBWR and WCWCD respectfully move the Commission to act expeditiously on

their request for relief. Interior’s preliminary 4(e) conditions are due on February 9,

2018, according to the REA Notice, and those conditions must be supported by an

extensive rationale document. 61 Moreover, Interior’s filing of preliminary conditions

triggers the very tight timelines of the TTH and alternative conditions processes.

Therefore, UBWR and WCWCD also request that the Commission suspend the

procedural schedule effective immediately until it rules on the petition for declaratory

order. Once the Commission rules on jurisdiction, it should reissue the REA Notice with

61
16 U.S.C. § 823d(4).

17
the full 60 day period for filing of comments, interventions, and preliminary terms and

conditions.

The Commission should be able to settle the jurisdiction issue swiftly. There are

no relevant facts in dispute, the statutory provisions are clear, and the precedent

supporting inclusion of the pipeline component of the Hydro System in the licensed

project is compelling. The sooner the Commission resolves this issue, the sooner the

application for this major new infrastructure project benefitting the citizens of

southwestern Utah can move forward to completion of an EIS in the manner

contemplated by Interior’s and the Commission’s regulations. UBWR and WCWCD

believe that the Commission should be able to issue this ruling by the Commission’s

February 15, 2018 open meeting date.

V. CONCLUSION

For the reasons stated above, UBWR and WCWCD request that the Commission

issue a declaratory order finding that its licensing jurisdiction over the Project under the

FPA includes the entirety of the Hydro System, including the penstock alignments.

UBWR and WCWCD further request that the Commission immediately suspend the

deadlines in the REA Notice until it has resolved the issue. Finally, UBWR and

WCWCD request that the Commission expeditiously rule on this petition by February15,

2018.

18
Respectfully submitted,

_______________________
Michael A. Swiger
John H. Clements
Van Ness Feldman, LLP
1050 Thomas Jefferson St., NW
Seventh Floor
Washington, DC 20007
Tel: (202) 298-1800
Email: mas@vnf.com
jhc@vnf.com

Counsel to the Utah Board of Water


Resources and Washington County Water
Conservation District

DATED: December 27, 2017

19
Attachment 1

Pre-Application Document, Figure 1-1


Paiute Indian Reservation

Utah

Deep Creek

Wahw
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GL Elev. 4,540

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#
)
" # High Point Reg Tank-1
High Point Reg. Tank-2
GL Elev. 4,660
# Utah GL Elev. 5,695
Lake Powell
Hurricane Cliffs Hydro
GL Elev. 3,700 In-Line Hydro No. 4 sh Arizona In-Line Hydro No. 2
GL Elev. 5,074
Kaibab Indian Reservation
ag e Wa GL Elev. 5,479 BPS-1
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Water Treatment Plant Hydro System Interstate National Park/Monument
!! !! !
Spatial Reference: UTM Zone 12N, NAD-83
!
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)
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Project Pump Station Water Conveyance System US Highway GSENM-Boundary


!! !! !

UDWR Figure 1-1


!

"
!!

!! !! !!

Project Regulating Tank Cedar Valley Pipeline System ST Highway Tribal Lands

´
!
# Project Hydro Hurricane Cliffs Forebay/Afterbay Hwy State Boundaries
Lakes & Reservoirs Major Road County Boundaries Lake Powell Pipeline
Major Rivers & Streams 0 2 4 8 12 16 Project Systems
Miles

1-2
Attachment 2

Proposed Study Plan, Figure 1


Paiute Indian
Terminus Reservoir Reservation

"
! Utah
CBPS-5
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reek
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GL Elev. 5,695 BPS-3
Sand Hollow Hydro ## GL Elev. 4,749 "
GL Elev. 4,540
GL Elev. 3,075 !
#
# Utah Navajo Indian Reservation
Navajo Indian Reservation
Hurricane Cliffs Hydro
GL Elev. 3,700 In-Line Hydro No. 3 sh
Arizona In-Line Hydro No. 1
GL Elev. 5,074
Kaibab Indian Reservation
ag e Wa GL Elev. 5,479 BPS-1
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!! !! !
!

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!!

Project Pump Station Hydro System Interstate !! !! !! National Park/Monument Spatial Reference: UTM Zone 12N, NAD-83
!! !! !
!

!
!!

Project Regulating Tank Water Conveyance System US Highway !! !! !! gsenm-boundary


UDWR Figure 1

´
# Project Hydro Cedar Valley Pipeline System ST Highway Tribal Lands
Hurricane Cliffs Forebay/Afterbay Hwy State Boundaries
Preferred Alternative
Major Road County Boundaries
Major Rivers & Streams Lakes & Reservoirs
Alignment &
0 2 4 8 12 16
Miles Hydro Features
CERTIFICATE OF SERVICE

I hereby certify that I have this day served courtesy copies of this filing on the

official service list for Project No. 12966.

Dated at Washington, D.C., this 27th day of December, 2017.

/s/ Mealear Tauch


Mealear Tauch
Van Ness Feldman, LLP
1050 Thomas Jefferson Street, NW
Seventh Floor
Washington, DC 20007-3877
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION

Utah Board of Water Resources ) Docket No. EL17-____

PETITION FOR EXEMPTION IN LIEU OF FILING FEE

Pursuant to Section 381.302(c) of the regulations of the Federal Energy

Regulatory Commission (Commission), 1 this Petition for Exemption in Lieu of Filing Fee

accompanies the Petition for Declaratory Order on Jurisdiction, Motion for Expedited

Action, and Motion for Suspension of Procedural Schedule (“Petition for Declaratory

Order”) filed by the Utah Board of Water Resources (“UBWR”) in this docket on the

same date. The accompanying Petition for Declaratory Order seeks a Commission ruling

that all of the project facilities identified in UBWR’s license application for Lake Powell

Pipeline Project No. 12966 as the “Hydro System” are project works that are included in

a complete unit of development and therefore subject to the Commission’s licensing

jurisdiction under Federal Power Act (“FPA”) Part I. As the Petition for Declaratory

Order and other relief concerns a matter arising solely under Part I of the FPA, no filing

fee is required. 2

Respectfully submitted,

_______________________

1
18 C.F.R. § 385.302(c) (2017).
2
Id. § 385.302(b).

1
Michael A. Swiger
John H. Clements
Van Ness Feldman, LLP
1050 Thomas Jefferson St., NW
Seventh Floor
Washington, DC 20007
Tel: (202) 298-1800
Email: mas@vnf.com
jhc@vnf.com

DATED: December 27, 2017