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Toledo Bend Bi-State Alliance
210 Hillcrest Drive or Rt.1 Box 1069
Anacoco, La. 71403 Hemphill, Tx.75948
May 16, 1999
Honorable David P. Boergers
Federal Energy Regulatory Commission
888 First Street NE Mail Code HL-11.2
Washington, D.C. 20426
Subject: Water Level - Toledo Bend Reservoir (P-2305)
Reference:
1. Federal Power Commission License Issued to the Sabine River Authorities of Louisiana and Texas issued October 14, 1963
2. Section 2. Paragraph (a) Executive Order 12962 of June 1995
3. Article V111, Section 8.01 State and Federal Laws, of the Power Sales Agreement between the Sabine River Authorities of Louisiana and Texas and Entergy & Cleco
4. FERC letters to the Sabine River Authorities of Louisiana and Texas dated December 15, 1998 and March 22, 1999
Dear Secretary Boergers:
We again renew our request that you exercise the authority reserved by the Federal Energy Regulatory Commission in Article 43 of the Operating License granted the Sabine River Authorities of Louisiana and Texas. That you issue an order to the Sabine River Authorities of Louisiana and Texas to change the operating guide of the reservoir from the present guide to the criteria developed in Simulation # 6 of the Brown and Root Operating Guide Re-Evaluation Study, July 1998.
Two things are very apparent to us. 1. As we have stated before, the Sabine River Authorities have not demonstrated any intent to voluntarily change the operating guide of the reservoir. 2. The Sabine River Authorities have not fully complied with the directives issued by your office in this matter. We have submitted correspondence to you in the past, containing letters from the Texas SRA refusing to meet with us. The SRAs failed to submit, on time, the report required as of January 15, 1999, and had to be reminded of the due date by a member of your staff. In your last letter, March 24, 1999, you directed the SRAs to work with us and the power companies, to discuss options to bring this issue of 168' mean sea level as the minimum operating level of the lake to a mutually acceptable conclusion. The SRAs were to report what options were considered to resolve this matter and why each option was adopted or disapproved. To our knowledge, no such meeting has occurred!
We also request that, in making your decision in this matter, you revisit Article 37 of the license. In your letter of December 15, 1998, you agreed with the contention of the SRAs that they were in compliance with Article 37. We might agree that the Authorities were in compliance with Article 37 prior to the completion of the Brown and Root Study. However, once that study demonstrated that a change in the operating guide could improve recreational use of the reservoir, without causing degradation of the primary purpose of the reservoir, they, in our opinion, were no longer in compliance with the spirit or letter of the license. Article 37 states "The reservoir operation schedule shall be adjusted to accommodate the recreation use of the reservoir area as far as such adjustment is compatible with the primary purpose of the project and requirements of downstream releases." (emphasis added).
President Clinton issued Executive Order 12962 to Federal Agencies on June 7, 1995. In paragraph (a) of Section 2 of that order it is stated "ensure that the social and economic values of healthy aquatic systems that support recreational fisheries are considered by Federal agencies in the course of their actions". Toledo Bend is a healthy aquatic system. However, the social and economic value of this reservoir is not being considered under the present operating guide.
The Sabine River Authorities have always maintained that the Power Sales Agreement precluded them from changing the operation of the reservoir without the approval of the power companies. They have maintained that the Power Sales Agreement with the Power Companies requires the generation of Peaking Power, if requested or required by the power companies, as long as the water level of the reservoir is above the physical minimum level for power generation, 162.2' mean sea level. The Attorney General of Louisiana, in Opinion #98-376, refutes those claims, stating the Authorities have the right to operate the reservoir to meet other uses of the water. For your convenience a copy of that opinion is enclosed (Attachment 1.).
Page 2. Letter to FERC dated May 16, 1999, Subject Project 2305
The power companies have stated they are willing to try to accommodate our request and adjust power demand on the reservoir when they can. We maintain that is not the case. Under the present operating guide, 113,000-acre feet of water will be used in May and 115,000-acre feet of water in June, to generate Peaking Power. This year, just as it was last year, the water level of the reservoir was slightly above 170' mean sea level, at the beginning of the Peaking Period of May-September. As you know the top of the pool level of the reservoir is 172.0' mean sea level. So we again start the Peaking Period two feet below the top of the pool. If the current operating guide is followed, and the present inflow continues, we face the real possibility of reaching and possibly going below the record low water level for Toledo Bend. The record low water level, 163.77' mean sea level, was set last year. Yet, even though this May has so far been relatively cool, which means there should be no high demand for electricity, neither the power companies nor the Sabine River Authorities have requested or suggested deferring power production for May and possibly June. Deferring generation would ensure a greater amount of water would be available in July, August & September, without having to reduce the water level of the reservoir quite as drastically as last year. The all-mighty dollar is what the production of power at Toledo Bend is all about. There is no serious consideration given to the recreational value or use of the reservoir. The monies received from power production are important to both the SRAs and power companies. The SRA of Louisiana, for example, receives 64.8% of its total income from the power produced at Toledo Bend. The SRA of Louisiana has publicly acknowledged that their income would not decrease if Simulation #6 of the Brown & Root Study were adopted. Rather, the date of payments may change and within one year they would have no problem operating under any new payment schedule. The power companies of course receive the benefit of cheap power, which when sold on the wholesale market, adds to their profit. If either the SRAs or the power companies were sincere in their claims to want to work with us, they would have already suggested deferring the May power production at Toledo Bend.
The following would be the consequences of an order requiring the Sabine River Authorities to adopt the criteria of Simulation # 6 of the Brown & Root Operating Guide Rule Curve Re-Evaluation Study as the new operating guide for Toledo Bend Reservoir:
· Adequate water would be maintained in the Reservoir to support Fire Fighting efforts around the lake.
· Adequate water would be retained in the lake to supply municipal and individual drinking water systems.
· Access to the reservoir for recreation, including fishing, hunting and boating, will be available year-round and will be enhanced. This will satisfy the requirements of Article 37 of your license to the Sabine River Authorities, as well as meet the intent of Executive Order 12962 of June 7, 1995.
· The opportunity for economic growth, including marinas and other businesses, near Toledo Bend will be enhanced in both Louisiana and Texas.
· Retirees would be more likely to relocate to the Toledo Bend area and tourism would increase.
· The Sabine River Authorities will still receive the same or more annual average income from power generation. The payment schedule may be changed somewhat, but the dollars will be the same or greater, according to the Brown & Root study.
· Water will be available for emergency power generation to prevent a brown out. If the present operating guide is followed and the water level of the reservoir is drawn to 162.2' mean sea level, it is physically impossible to provide water for emergency power generation.
· The power companies will receive the same or greater annual power from the reservoir. However, according to the referenced study, during dry years the full 65,700,000-kilowatt hours of estimated Peaking Power may not be attained. That possibility is true, regardless of the operating guide followed.
· Any order issued by you will not breach the contract (Power Sales Agreement) between the Authorities and Power Companies. The language in Article VIII Section 8.01, of the Power Sales Agreement, anticipates changes in laws and the rules and regulations and orders of governmental agencies over the fifty-year life of the agreement. (See attachment 2.). The Louisiana Attorney General's Opinion # 98-376 refutes the theory that there is no choice but to draw the lake to the bottom of the power pool to provide Peaking Power if requested by the power companies.
We again request that you issue an order to the Sabine River Authorities of Louisiana and Texas under the provisions of Article 43 of the FERC License. That the order requires the Authorities to change the Operating Guide of Toledo Bend, Project Number 2305, to the criteria established in Simulation # 6 of the Brown & Root Operating Guide Re-Evaluation Study. The immediate and potential benefits of the requested change far outweigh any reason for continuing to operate under the present operating guide.
Respectfully,
Larry E. Kelly
Co-Chairman
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