Professional Documents
Culture Documents
Seventh Floor
Washington, DC 20007
(202) 298-1800 Phone
(202) 338-2416 Fax
John H. Clements
jhc@vnf.com
202-298-1933
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,
Attachments
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
Pursuant to Rule 207(a)(2) of the Rules of Practice and Procedure of the Federal
Resources (“UBWR”), license applicant for the Lake Powell Pipeline Project, FERC
Project No. 12966 (“Project”), and the Washington County Water Conservancy District
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
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
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
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
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
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
Document 2 (“SD2”), 11 both of which state “[t]he Commission has jurisdiction with
Revised Study Plan (“RSP”). 14 In 2009, the Commission issued its Study Plan
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
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
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
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
The REA Notice’s startling departure of the prior finding in this regard creates an
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
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
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
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.
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).
7
highest point and terminating at the last and lowermost hydroelectric generating facility
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
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
decisions on the licensing of the hydro system,” which is defined in the MOU to include
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
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
jurisdiction over those facilities. 33 Nothing in the public record until the REA Notice was
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
Part I of the FPA is set forth in Section 4(e), which authorizes the Commission, in
pertinent part:
“Project works” are defined as “the physical structures of a project.” 36 The FPA defines
a “project” as:
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 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
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.
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
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
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
(“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
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
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
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
jurisdiction for that project to power generating equipment. The order licensed the Devil
Pyramid (now Warne) development, which includes a 2-mile-long canal and a 5.5-mile
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
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.
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
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
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.
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
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
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
designed to conclude before the Commission issues its draft EIS, as shown on the ILP
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
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
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
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
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
believe that the Commission should be able to issue this ruling by the Commission’s
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
19
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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
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
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