Retention of Waterpower Resource Withdrawals Located Within Federal Energy Regulatory Commission Power Project Withdrawals

UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
WASHINGTON, D.C. 20240
http://www.blm.gov

May 17, 2007

In Reply Refer To:
2300 (350) P

EMS TRANSMISSION 05/24/2007
Instruction Memorandum No. 2007-126
Expires: 09/30/2008

To: AFOs

From: Assistant Director, Minerals, Realty and Resource Protection

Subject: Retention of Waterpower Resource Withdrawals Located Within Federal Energy Regulatory Commission Power Project Withdrawals

Program Area: Lands and Realty, Waterpower and Reservoirs Resources

Purpose: This Instruction Memorandum (IM) provides guidance regarding the retention of waterpower resource withdrawals located within a Federal Energy Regulatory Commission (FERC) power project boundary in order to preserve the authority of the Secretary of the Interior (Secretary) to impose mandatory conditions on hydropower licenses issued by the FERC.

Policy Action: Waterpower resource withdrawals, such as Power Site Reserves (PSRs) and Power Site Classifications (PSCs), within or adjacent to a FERC power project boundary, must be retained in order to preserve the authority of the Secretary under Section 4(e) of the Federal Power Act (FPA), as amended (16 U.S.C. 797 (e)), and to impose mandatory conditions on hydropower project licenses issued by the FERC (formerly the Federal Power Commission (FPC)).

Power Site Reserves created under the authority of the Pickett Act meet the definition of reservation under the FPA. In the 2001 Solicitor’s Opinion announcing that Taylor Grazing Act lands are reservations according to the FPA definition, the opinion cited Federal Power Commission v. Oregon, 349 U.S. 435, 75 S.Ct. 832, as an example of “many other ‘temporary’ withdrawals [that] have long been considered ‘reservations’ for FPA purposes” (see IM 2003-149, attachment 1-18). Although the 2001 opinion did not elaborate upon the details of the cited Supreme Court Case, the case involved a number of reserved lands allowing for the FPC to license the Deschutes Project on “reserved” lands, even though the project, as contended by the State of Oregon, was located on a non‑navigable river prohibiting issuance of a license by the FPC. As defined by the FPA, a reservation is land owned by the United States that is “. . . withdrawn, reserved or withheld from private appropriation and disposal under the public land laws . . .”, 49 Stat. 838, 16 U.S.C. 796 (2), 16 U.S.C.A. 7961 (2). The “reserved” lands that met the FPA’s reservation definition were the Warm Springs Indian Reservation, Indian Power Site Reserve No. 2 and 294, Power Site Reserve No. 66, and the reservation created upon application for a license to the FPC for Pelton Project No. 57, FPC v. Oregon, 349 U.S. 435, 438 n.5, 439 n.6, (1955). According to the Court’s ruling and the 2001 Solicitor Opinion, PSRs are within the meaning of the FPA’s reservation giving the Secretary 4(e) conditioning authority.

In regards to PSCs, located within or adjacent to a Federal power project boundary, it is in the best interest of the Secretary to retain PSCs, when applicable. Power Site Reservers, like PSRs, withhold Federal land from private appropriation and disposal under the public land laws. Although an opinion has not been issued to determine if PSCs are reservations within the meaning of the FPA definition, the segregative effect created by PSCs are identical to PSRs calling for their retention until such an opinion is issued. Within many FERC power project boundaries, waterpower resource withdrawals may serve as the only trigger for the Secretary to exercise 4(e) conditioning authority. To revoke waterpower resource withdrawals within or adjacent to a Federal power project boundary is to eliminate the Secretary’s right to prescribe mandatory conditions on licenses issued by the FERC if no other reservation is present.

However, if through the land use planning process, waterpower resource withdrawals within or adjacent to a FERC power project boundary are identified for disposal, and the Secretary’s authority to impose 4(e) is unneeded due to a minimal amount of Federal public land involved within the project, then the lands must be opened in accordance to Section 24 of the FPA, Chapter 285, 41 Stat. 1063-1077; 16 U.S.C. 7, prior to their disposal. A Section 24 opening reserves to the United States the waterpower value of the subject lands. Interior Decision Weyerhaeuser Timber Company, A-27137 (August 11, 1955), 62 I.D. 311, states that “if the [Federal] lands applied for are chiefly valuable for power site purposes, then the appellant may proceed without prejudice through the Federal Power Commission in accordance with Section 24 of the Act of June 10, 1920.” In other words, if any Federal lands, with or without a waterpower resource withdrawal are included in a power project, then they are “chiefly valuable for power site purposes” and the Secretary must, prior to their disposal, open the lands subject to Section 24 of the FPA.

Timeframe: The policy contained in this IM is effective immediately.

Budget Impact: There will be no budget impacts.

Background Information: Previous guidance issued in good faith provided policy that called for the revocation of waterpower resource withdrawals within fully developed basins (IM 84-206). Although the IM expired over 20 years ago, the policy still remains as evidence by the continuing revocation of waterpower resource withdrawals within a fully developed basin. As a result, the Secretary may be unable to impose mandatory conditions among Federal power projects that enter the FERC’s licensing process if no other reservation is present.

Manual/Handbook Sections Affected: None.

Contact: Victor W. Lozano, National Program Lead, Waterpower and Reservoir Resources Program (WO-350) at (303) 236-9512 or Jeff Holdren, Acting Chief, Division of Lands, Realty, and Cadastral Survey (WO-350) at (202) 452-7779.

Signed by:
Authenticated by:
Douglas J. Burger
Robert M. Williams
Acting, Assistant Director
Division of IRM Governance,WO-560
Minerals, Realty and Resource Protection