CaseStudy:Lake Powell hydroelectric and water distribution systems

The Advisory Council on Historic Preservation (ACHP) will become a consulting party on a project centering on the Glen Canyon National Recreation Area that is still in the Federal Energy Regulatory Commission (FERC) pre-application period. ACHP involvement will focus on facilitating communication among a number of federal agencies and consulting parties and clarifying requirements of the Section 106 of the National Historic Preservation Act process.

The proposed Lake Powell Hydroelectric System project (FERC Project No. 12966—Utah/Arizona) is both a water supply and power generation project that includes 180 miles of underground pipe, diverting water from Lake Powell Reservoir eastward to the Sand Hollow Reservoir. The project consists of four systems: FERC has jurisdiction over the hydroelectric system. The project ultimately will distribute water from Lake Powell in southeast Utah to various locations in northern Arizona and southern Utah, crossing lands administered or owned by the Bureau of Land Management, Bureau of Reclamation, Bureau of Indian Affairs, National Park Service, the states of Utah and Arizona, several Indian tribes, and a number of private citizens.
 * 1) a water intake system;
 * 2) a water conveyance system;
 * 3) a hydroelectric system;
 * 4) the Cedar Valley Pipeline System.

The Utah Board of Water Resources, the state agency proposing the project, filed a Notice of Intent with FERC to seek an original hydroelectric license for the proposed hydroelectric system. The state proposes to use FERC’s Integrated Licensing Process to prepare both a license application for the hydroelectric system and the information the other federal agencies will need for reviews of the project. Since the project is currently in FERC’s pre-application period, no formal application for a license has been filed. Consultants for the applicant are carrying out studies and sponsoring public meetings necessary for environmental reviews, including those related to Section 106.

The ACHP has received expressions of concern from the Utah and Arizona State Historic Preservation Offices, the project applicant, several tribes, and several federal agencies regarding Section 106 consultation. The concerns focus on the role of the applicant in initiating and carrying out Section 106 consultation, the nature of coordination among federal agencies, the benefits of having a lead federal agency, the extent of tribal consultation, a perceived lack of aggressive participation by FERC in the Section 106 consultation, and the utility of developing a Programmatic Agreement (PA) early in the process to provide a clear roadmap for the Section 106 process.

In June 2009, the ACHP sent a letter of inquiry to FERC informing the agency of the concerns and requesting information. In response, FERC provided a review of scoping and coordination meetings and a summary of tribal consultation. FERC has expressed reluctance to be the lead agency for the purposes of Section 106and suggests that each federal agency is responsible for effects to historic properties arising from their actions related to the project. FERC does not want to develop a PA this early in the process but prefers to wait until historic properties have been identified and work begins on development of a Historic Properties Management Plan which will set forth a process for resolving adverse effects to historic properties that cannot be avoided by modifications of the proposed project design. Instead, FERC has proposed a coordination agreement intended to clarify the roles of the applicant and various federal agencies in the Section 106 process. The proposed agreement focuses on agency authorities, jurisdictional areas, and actions related to the project, and indicates that each agency will be responsible for tribal consultation and for determinations about historic properties and effects with regard to the areas affected by their specific actions.

However, the proposed coordination agreement is characterized by misconceptions about the relationship between an agency action and the undertaking. According to the Section 106 regulations, the undertaking is the overall project that may require one or more federal actions related to aspects of the project. Each federal agency that has an action related to the undertaking is responsible to take into account the effects of the entire undertaking on historic properties, not just the effects occurring in the agency’s area of jurisdiction. When more than one agency is involved in an undertaking, agencies can designate a lead federal agency that will act for them in fulfilling collective responsibilities under Section 106. If they do not designate a lead federal agency, they each remain individually responsible to comply with Section 106 for the effects of the entire undertaking on historic properties. A coordination agreement that is not part of a PA does not have any standing under Section 106 in terms of dividing agency responsibility for complying with Section 106 for the entire undertaking, or for delegating additional responsibilities to an applicant beyond those specified in 36 CFR 800.2(c)(4).

No federal agency has filed a notice of adverse effect with the ACHP yet. However, the ACHP will formally enter the Section 106 consultation in order to facilitate communication among the federal agencies and consulting parties and clarify the requirements of the Section 106 process.