[Federal Register Volume 73, Number 24 (Tuesday, February 5, 2008)]
[Notices]
[Pages 6717-6719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-2085]


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DEPARTMENT OF ENERGY

Southwestern Power Administration


White River Minimum Flows--Determination of Federal and Non-
Federal Hydropower Impacts

AGENCY: Southwestern Power Administration, DOE.

ACTION: Notice of Public Review and Comment.

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SUMMARY: Section 132 of Public Law 109-103 (2005) authorized and 
directed the Secretary of the Army to implement alternatives BS-3 and 
NF-7, as described in the White River Minimum Flows Reallocation Study 
Report, Arkansas and Missouri, dated July 2004.
    The law states that the Administrator, Southwestern Power 
Administration (Southwestern), shall determine any impacts on electric 
energy and capacity generated at Federal Energy Regulatory Commission 
(FERC) Project No. 2221 caused by the storage reallocation at Bull 
Shoals Lake. Further, the licensee

[[Page 6718]]

of Project No. 2221 shall be fully compensated by the Corps of 
Engineers for those impacts on the basis of the present value of the 
estimated future lifetime replacement costs of the electrical energy 
and capacity at the time of implementation of the White River Minimum 
Flows project.
    The law also states that losses to the Federal hydropower purpose 
of the Bull Shoals and Norfork Projects shall be offset by a reduction 
in the costs allocated to the Federal hydropower purpose. Further, such 
reduction shall be determined by the Administrator of Southwestern on 
the basis of the present value of the estimated future lifetime 
replacement cost of the electrical energy and capacity at the time of 
implementation of the White River Minimum Flows project.
    Assuming a January 1, 2011, date of implementation, Southwestern 
has made a draft determination that the present value of the estimated 
future lifetime replacement costs of the electrical energy and capacity 
at FERC Project No. 2221 is $21,363,700. Southwestern has made a draft 
determination that the present value of the estimated future lifetime 
replacement costs of the electrical energy and capacity for Federal 
hydropower is $41,584,800.

DATES: The consultation and comment period will begin on the date of 
publication of this Federal Register notice and will end March 6, 2008.

FOR FURTHER INFORMATION CONTACT: Mr. George Robbins, Director, Division 
of Resources and Rates, Southwestern Power Administration, U.S. 
Department of Energy, One West Third Street, Tulsa, Oklahoma 74103, 
(918) 595-6680, <a href="/cdn-cgi/l/email-protection#6007050f1207054e120f0202090e1320131710014e070f16"><span class="__cf_email__" data-cfemail="1275777d6075773c607d70707b7c6152616562733c757d64">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Discussion

    Originally established by Secretarial Order No. 1865 dated August 
31, 1943, Southwestern is an agency within the U.S. Department of 
Energy which was created by an Act of the U.S. Congress, entitled the 
Department of Energy Organization Act, Pub. L. No. 95-91 (1977). 
Southwestern markets power from 24 multi-purpose reservoir projects 
with hydroelectric power facilities constructed and operated by the 
U.S. Army Corps of Engineers. These projects are located in the states 
of Arkansas, Missouri, Oklahoma, and Texas. Southwestern's marketing 
area includes these states plus Kansas and Louisiana.
    Southwestern developed projected energy and capacity losses for the 
Bull Shoals and Norfork projects and FERC Project No. 2221, including 
additional losses related to the reallocation for minimum flows as 
appropriate. Currently, the calculated credit due to Federal hydropower 
is $41,584,800, and the calculated compensation due to the licensee of 
FERC Project No. 2221 is $21,363,700. The values were calculated on the 
basis of the present value of the estimated future lifetime replacement 
cost of the electrical energy and capacity assuming an implementation 
date of January 1, 2011, for the White River Minimum Flows project. The 
final calculation will depend on the official date of implementation as 
specified by the Corps of Engineers and the value of the specified 
parameters in effect at that time.
    Section 132 of Public Law 109-103 (2005) authorized alternative BS-
3 at Bull Shoals, as described in the White River Minimum Flows 
Reallocation Study Report, Arkansas and Missouri, dated July 2004. 
Under the authorized plan for the Bull Shoals project, the storage for 
minimum flows will be reallocated from the flood control pool with 
provisions to maintain the current yield of the hydropower storage. The 
current seasonal pool plan will be superimposed on the new top of 
conservation pool. The additional downstream releases for minimum flows 
will be accomplished by generating with one of the main units at a low, 
inefficient rate. Since the current hydropower yield will be 
maintained, there will be no loss of marketable capacity or peaking 
energy at Bull Shoals. The annual energy loss, 23,855 megawatt-hours 
(MWh) per year of off-peak energy, will be the result of making the 
required minimum downstream releases by generating energy at a much 
lower plant efficiency and at a time when the energy is not needed to 
fulfill Federal peaking energy contracts. Operating a main unit at the 
lower efficiency will also increase the average maintenance costs at 
the project by an estimated $68,000 per year.
    Section 132 of Public Law 109-103 (2005) authorized alternative NF-
7 at Norfork, as described in the White River Minimum Flows 
Reallocation Study Report, Arkansas and Missouri, dated July 2004. 
Under the authorized plan for the Norfork project, one-half of the 
storage for minimum flows will be reallocated from the flood control 
pool and the other half from hydropower storage. The reallocation 
portion from the flood control storage is similar to that at Bull 
Shoals in that the hydropower storage yield for that portion is 
maintained and the existing seasonal pool plan will be superimposed on 
the new top of conservation pool. However, the releases will be spilled 
through a siphon with no energy generated from the water. Although 
there is no marketable capacity loss associated with the flood control 
storage reallocation, there is an off-peak energy loss. The 
reallocation from the hydropower storage does reduce the yield 
available to hydropower and will directly impact the marketable 
capacity and on-peak energy available at Norfork. The annual energy 
loss at Norfork associated with the reallocation is 6,762 MWh of off-
peak energy and 6,762 MWh of on-peak energy, for a total annual energy 
loss of 13,524 MWh. The marketable capacity loss is 3.93 megawatts 
(MW).
    FERC Project No. 2221, the non-Federal hydroelectric project at 
Powersite Dam, will be directly affected by the minimum flow plan. The 
normal top of conservation pool will be raised five feet at Bull 
Shoals, the project immediately downstream of Powersite Dam. The pool 
level increase at Bull Shoals will reduce the amount of gross head 
(headwater elevation minus the tailwater elevation) available for 
generation at the non-Federal project at Powersite Dam. The reduction 
in gross head will result in an annual energy loss of 5,792 MWh of on-
peak energy and 2,853 MWh of off-peak energy, or an annual total energy 
loss of 8,645 MWh. Also associated with the loss of gross head, there 
will be a capacity loss of 3.00 MW at the project.

II. Procedural and Regulatory Review Requirements

A. Review Under Executive Order 12866

    Southwestern has an exemption from centralized regulatory review 
under Executive Order 12866, ``Regulatory Planning and Review,'' 58 FR 
51735, October 4, 1993. Accordingly, this notice of draft determination 
was not reviewed by OMB under the Executive Order.

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires Federal agencies to perform a regulatory flexibility analysis 
if a final rule is likely to have a significant economic impact on a 
substantial number of small entities and there is a legal requirement 
to issue a general notice of proposed rulemaking. This draft 
determination is not a rulemaking.

C. Review Under the Paperwork Reduction Act

    No new information or record keeping requirements are imposed by 
this draft determination. Accordingly, no OMB

[[Page 6719]]

clearance is required under the Paperwork Reduction Act (44 U.S.C. 3501 
et seq.).

D. Review Under the National Environmental Policy Act of 1969

    In compliance with the National Environmental Policy Act of 1969 
(NEPA) (42 U.S.C. 4321 et seq.); the Council on Environmental Quality 
Regulations for implementing NEPA (40 CFR parts 1500-1508); and DOE 
NEPA Implementing Procedures and Guidelines (10 CFR part 1021), 
Southwestern has determined that this draft determination is not 
addressed under DOE NEPA Implementing Procedures and Guidelines for 
Power Marketing Administrations, and no further action is required.

E. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism'' (64 FR 43255, August 10, 
1999), imposes certain requirements on agencies formulating and 
implementing policies or regulations that preempt State law or that 
have federalism implications. Southwestern is not formulating or 
implementing policies or regulations that preempt State law or that 
have federalism implications. Executive Order 13132 does not apply.

F. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3, (a) of Executive Order 
12988, ``Civil Justice Reform'' (61 FR 4729, February 7, 1996), imposes 
on Federal agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. Section 3(b) of Executive 
Order 12988 specifically requires that Federal agencies make every 
reasonable effort to ensure that the regulation: (1) Clearly specifies 
the preemptive effect, if any; (2) clearly specifies any effect on 
existing Federal law or regulation; (3) provides a clear legal standard 
for affected conduct while promoting simplification and burden 
reduction; (4) specifies the retroactive effect, if any; (5) adequately 
defines key terms; and (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General. Section 3(c) of Executive Order 12988 requires 
Federal agencies to determine whether the regulations meet the 
applicable standard in section 3(a) and section 3(b), or it is 
unreasonable to meet one or more of them. Southwestern is not reviewing 
existing regulations or promulgating new regulations. Executive Order 
12988 does not apply.

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4 
(1995)) requires each Federal agency to assess the effects of a Federal 
regulatory action on State, local, and tribal governments, and the 
private sector. Southwestern has determined that the Unfunded Mandates 
Reform Act of 1995 does not apply to the draft determination.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 (112 Stat 2681-528) of the Treasury and General 
Government Appropriations Act, 1999 (Pub. L. 105-277, (1998)) requires 
Federal agencies to issue a Family Policymaking Assessment for any rule 
that may affect family well-being. This draft determination is not a 
rule. Therefore, Section 654 (112 Stat 2681-528) of the Treasury and 
General Government Appropriations Act, 1999 (Pub. L. 105-277, (1998)) 
does not apply.

I. Review Under the Treasury and General Government Appropriations Act, 
2001.

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3316 note) provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by the Office of 
Management and Budget (OMB). OMB's guidelines were published at 67 FR 
8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 
62446 (October 7, 2002). Southwestern has reviewed this notice under 
the OMB and DOE guidelines and has concluded that it is consistent with 
applicable policies in those guidelines.

J. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001), requires Federal agencies to prepare and submit 
to the Office of Information and Regulatory Affairs (OIRA), Office of 
Management and Budget, a Statement of Energy Effects for any proposed 
significant energy action. A ``significant energy action'' is defined 
as: (1) Any action by an agency that promulgated or is expected to lead 
to promulgation of a final rule; (2) is a significant regulatory action 
under Executive Order 12866, or any successor order; and (3) is likely 
to have significant adverse effect on the supply, distribution, or use 
of energy, or is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use. This draft 
determination is not an energy action. Executive Order 13211 does not 
apply.

III. Public Review and Comment Procedures

    Opportunity is presented for interested parties to receive copies 
of the Draft Report detailing Southwestern's determination of the 
Federal and non-Federal hydropower impacts. If you desire a copy of the 
report, submit your request to Mr. George Robbins, Director, Division 
of Resources and Rates, Southwestern Power Administration, One West 
Third, Tulsa, OK 74103, (918) 595-6680.
    Written comments on Southwestern's determination are due on or 
before March 6, 2008. Comments should be submitted to George Robbins, 
Director, Division of Resources and Rates, Southwestern, at the above-
mentioned address for Southwestern's offices.
    Southwestern will review and address the written comments, making 
any necessary changes to the draft determination. The Administrator 
will then submit the final determination to the Corps of Engineers.

    Dated: January 30, 2008.
Jon Worthington,
Administrator.
 [FR Doc. E8-2085 Filed 2-4-08; 8:45 am]
BILLING CODE 6450-01-P


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