Redheaded Blackbelt
No one was surprised by Thursday’s letter granting PG&E an annual license to run the Potter Valley Project until April of next year. And, while a last-minute mystery application did provide a few moments of titillating speculation, the enigmatic Antonio Manfredini failed to generate any real suspense.
The 50-year license to operate the Potter Valley Project, which diverts water from the Eel River into the east branch of the Russian River to Lake Mendocino by way of a tunnel, a pair of dams and reservoirs, and a small hydropower plant, expired on April 14. A group of diverse environmental groups and local government interests from Humboldt to Sonoma county tried to gather $18 million to conduct the studies needed to apply for the license, but fell far short and never filed an application. The parties had pledged to find a way to operate the project in a way that would satisfy the demands of the endangered fisheries in the Eel River basin, as well as water users in the Russian River watershed.
A day after the license expired, a group of environmental interests and fishermen filed a notice of intent to sue PG&E within 60 days under the Endangered Species Act, claiming that the fish ladder at Cape Horn Dam in Potter Valley harms endangered salmonids trying to make their way through.
The notice relies heavily on a letter from the National Marine Fisheries Service (NMFS), which states that the project is causing take of endangered species in a manner that was not anticipated in a 2002 NMFS biological opinion, and that the agency “is concerned with insufficient coverage under the Endangered Species Act for incidental take of ESA-listed salmonids.”
PG&E declared that the claims in the notice are “without merit,” and that, although PG&E did not file to renew the license, the Federal Power Act requires the regulatory agency to automatically issue an annual license upon the expiration of the previous license.
That agency is the Federal Energy Regulatory Commission (FERC), which confirmed PG&E’s claim a week after its license expired, writing that the Federal Power Act does indeed require the Commission, “at the expiration of a license term, to issue from year-to-year an annual license to the then licensee under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of…” The brief notice concluded that “PG&E is authorized to continue operation of the Potter Valley Project, until such time as the Commission orders disposition of the project.”
That disposition is widely assumed to be an order to surrender and decommission the project, though FERC has provided very few hints that would either confirm or deny the supposition, or provide much of an idea of what that means or how long it would take.
Clifford Paulin, who is legal counsel for the Potter Valley Irrigation District, was among those who fully expected FERC to grant the annual license. For him, the remaining uncertainty lies in the big-picture conditions of the drought, as well as details about the pikeminnow reduction program and how additional conditions to the license, if any, will be implemented.
While Sonoma County is entitled to the lion’s share of the water in Lake Mendocino, the Potter Valley Irrigation District is first in line for water that comes through the project. And a combination of drought and the project’s current inability to generate power due to a broken piece of equipment means that just a few cubic feet per second have made it past the irrigation district. Paulin said that, while PVID is entitled to 50 cfs per its contract with PG&E, the district’s directors acceded to PG&E’s request to stay on a demand-based system, only asking for the amount the district can sell to its customers. This is calculated in part to protect the infrastructure at Lake Pillsbury and Scott Dam in Lake County. It also means that the only additional water going into the Russian River and Lake Mendocino from the Eel River will be the minimum instream flows required by the National Marine Fisheries Service to protect salmonids in the Russian River.
As for the PVP 77 application, which was decisively dismissed on Friday, Paulin thought it might have been part of what caused the delay in FERC’s announcement, but “I don’t see Manfredini being much of a factor” otherwise.
Curtis Knight, the Executive Director of the environmental organization California Trout, described the granting of the annual license as “a big step,” which “everyone knew was coming…the only weird note was Manfredini.” CalTrout is one of the organizations in the coalition that was working towards applying for the license, and is a party to the notice to sue PG&E under the Endangered Species Act. Reflecting on the years of effort that went into consultations with affected communities and efforts to gather funding for extensive studies, he described the PVP 77 application as “deficient,” and hopes “FERC will squash it completely.” While FERC’s letter declares that its rejection “constitutes final agency action,” applicants may file a request for a rehearing within thirty days. Still, Knight declared that “the distraction won’t amount to much;” and said that what he expects next is a timeline for the surrender of the project. He hasn’t given up on working with the Russian River members of the original coalition, reflecting that, “we spent a few years in the trenches, so we’ve got something there.”
Still, he doesn’t expect FERC to define the process of decommissioning without a fight, or at least a lot of hard work. “It may have to get a little messy first,” he acknowledged.