UPPER NORTH FORK FEATHER RIVER PROJECT

FERC Project No. 2105

 

 

Project 2105 Relicensing

Settlement Agreement

 

 

DRAFT

 

December 8, 2003

 

 

Upper North Fork Feather River Project

FERC Project No. 2105

 

Relicensing Settlement Agreement

 

Table of Contents

Page

 

1.     Introduction

 

 

1.1   Parties

 

1.2   Recitals

 

1.3   Effective Date of Settlement

 

1.4   Term of Settlement

 

1.5   Definitions

 

 

2.     Purpose of Settlement

 

 

2.1   Purpose

 

2.2   Resolved Subjects

 

2.3  Unresolved Subjects

 

 

 

2.4   No Precedent for Other Proceedings

 

2.5   Compliance with Legal Responsibilities

 

2.6   Reservation of Claims, Rights, and Responsibilities

 

 

 

 

3.     Use of Settlement in New Project License and Section 4(e) Conditions

 

 

3.1   Protection, Mitigation, and Enhancement Measures Recommended to be Included in New Project License

 

3.2  Protection, Mitigation, and Enhancement Measures Recommended to be Included in    Section 4(e) Conditions

 

3.3  Relationship of Settlement to Section 7 Consultation

 

3.4   Protection, Mitigation, and Enhancement Measures Recommended to be Included in 401 Certification

 

3.5   Measures Agreed to But Not to be Included in New Project License or Section 4(e) Conditions

 

 

4.  Implementation of Settlement

 

 

4.1   Support of Settlement

 

4.2  Support for Issuance of New Project License

 

4.3  New Project License, Final 4(e) Conditions, 401 Certification, or Other Mandatory Conditions Inconsistent with this Settlement

 


 

 

Page

 

4.4  Appeal of New Project License, Final 4(e) License Conditions, 401 Certification, or Other Mandatory    Conditions Inconsistent with this Settlement

 

4.5  Cooperation Among Parties

 

4.6  Implementation Schedule

 

4.7  Reopener or Amendment of New Project License

 

4.8  Amendment of Settlement

 

4.9  Dispute Resolution

 

4.10 Withdrawal from Settlement

 

4.11 Termination of Settlement

 

 

5.     General Provisions

 

 

5.1   Non-Severable Terms of Settlement

 

5.2   No Third Party Beneficiaries

 

5.3   Successors and Assigns

 

5.4   Failure to Perform Due to Force Majeure

 

5.5   Governing Law

 

5.6   Elected Officials Not to Benefit

 

5.7   No Partnership

 

5.8   Reference to Regulations

 

5.9   Notice

 

5.10 Paragraph Titles for Convenience Only

 

 

6.     Execution of Settlement

 

 

6.1  Signatory Authority

 

6.2   Disclosure of Other Agreements

 

6.3  Signing in Counterparts

 

 

Appendix A. Protection, Mitigation, and Enhancement Measures Recommended to be Included in New Project License, Section 4(e) Conditions, and Other Mandatory License Conditions

 

 

 

Appendix B. Measures Agreed to Among the Parties But Not to be Included in New Project License, Section 4(e) Conditions, or Other Mandatory License Conditions

 

 

 

Appendix C.  Authorized Representatives of Parties

 


Upper North Fork Feather River Project

FERC Project No. 2105

 

Relicensing Settlement Agreement

 

 

1.            Introduction

 

1.1      Parties. This SETTLEMENT AGREEMENT ("Settlement") is made and entered into pursuant to Federal Energy Regulatory Commission (“FERC”) Rule 602, 18 CFR § 385.602, by and among Pacific Gas and Electric Company (“Licensee”), the United States Department of Agriculture Forest Service (“FS”), the United States Department of the Interior (USDOI), Fish and Wildlife Service (“FWS”), the California Department of Fish and Game (“CDFG”), American Whitewater (“AW”), Plumas County (“Plumas”), Chico Paddleheads (“CP”), and Shasta Paddlers (“SP”) and California Sportfishing Protection Alliance (“CSPA”) and National Park Service (“NPS”) each referred to individually as a “Party” and collectively as “Parties.”  These ________ Parties may also be referred to as the “Original Parties.”

 

The Parties to this Settlement agree as follows:

 

1.2      Recitals

 

      1.2.1      On October 23, 2002, Licensee filed with the Federal Energy Regulatory Commission (“FERC”) an application for a new license (“New Project License”) for the Upper North Fork Feather River Project, FERC Project No. 2105 (“Project”) located on the North Fork Feather River (“NFFR”) in Plumas county, California.

 

          1.2.2    Prior to filing its application for new license the Licensee consulted with the other parties in development of the studies, data, and other material presented in the application.  In early 2003 the Parties and other parties met and decided to continue discussions on a regular basis on appropriate mitigation and enhancement measures in a collaborative process.

 

          1.2.3    In 2002, Licensee, FS, FWS, CDF&G, AW, Plumas, SP, CP, NPS, and CSPA met and agreed to engage in discussions to resolve issues and agree on PM&E measures appropriate for the relicensing of the Project.  This group, sometimes referred to as the 2105 Licensing Group, engaged in collaborative discussions and is referred to in this agreement as the “Collaborative”.  This Settlement is an end product of the Collaborative’s work.

 

SWRCB staff has participated in the 2105 Collaborative in order to provide the Parties with guidance concerning the SWRCB’s regulatory requirements and in furtherance of the SWRCB’s policy to promote voluntary settlement agreements.  However, the SWRCB cannot prejudge the Licensee’s request for water quality certification in connection with this relicensing proceeding and therefore could not execute this settlement agreement.

 

1.3      Effective Date of Settlement.  This Settlement becomes effective as of __________________ (“Effective Date”).

 

1.4      Term of Settlement.  The term of this Settlement shall commence on the Effective Date and shall continue (unless terminated as otherwise provided herein) for the term of the New Project License (subject to FERC's reserved authority under the New Project License to require modifications), plus the term(s) of any annual license(s) which may be issued after the foregoing New Project License has expired, or until the effective date of any FERC order approving surrender of all or part of the Project under the FPA.

 

1.5            Definitions.  

 

ADAAG:  Americans With Disabilities Act Accessibility Guidelines

AF:  acre-foot of water

ADR:  Alternative Dispute Resolution - see Paragraph 4.9.1.

Basin Plan:  The Water Quality Control Plan for the Central Valley Region, the Sacramento and San Joaquin River Basins Beneficial Uses:  Beneficial Uses include municipal and domestic water supply, hydropower generation, water contact recreation, canoeing and rafting, non-contact water recreation, warm and cold freshwater habitat, warm and cold freshwater spawning habitat, and wildlife habitat, as designated in the Basin Plan, or any revision thereto.

Belden Reach:  The portion of the NFFR between Belden Forebay Dam and Belden Powerhouse.

Block Loading:  Operational mode of a powerhouse in which the generation capacity (and resulting cfs release) is held at or near a constant level for an extended period of time.

Cap Flows:  Maximum level to which the Minimum River Flow level may be adjusted as provided in Appendix A, Table A-1 and A-2.

CD:  Critically Dry water year type as defined in Appendix A, Section 4.

cfs:  cubic feet per second

Collaborative:  See Paragraph 1.2.4

Controlled Spill:  Release of water from a Project reservoir at times when the release could have otherwise been controlled (not spilled) by increasing the flow through the generating units or controlling inflows by controlling releases from upstream reservoirs.

Cresta Reach:  That portion of the NFFR between Cresta Dam and the Cresta Powerhouse.

DEA:  Draft Environmental Assessment.

Disputing Party; Disputing Parties:  See Paragraph 4.9.1.

Dry:  Dry water year type as defined in Appendix A, Section II.

Effective Date:  See Paragraph 1.3.

Emergency: 

ESA:  Federal Endangered Species Act - see Paragraph 2.6.1.

 

FPA:  Federal Power Act.

Good Faith:  Honesty of purpose, free from intention to defraud, faithful to one’s duty or obligation.

Heat Storm: A multi-day sequence of extreme temperatures across California or the western-U.S. that results in near-record electricity use and voluntary power use reductions or involuntary, rotating power outages. 

Inconsistent Condition:  A condition with  (insert Tom’s language or consider deleting)

Minimum Stream Flows:  Required minimum stream flows in the Belden and Seneca reaches as provided in Section 1 of Appendix A-1 and A-2.

NA:  not applicable

NFFR:  North Fork Feather River

NEPA:  National Environmental Policy Act - see Paragraph 1.2.4.

New Project License:  See Paragraph 1.2.1.

Normal: Normal water year type as defined in Appendix A, Section II.

Notice: See Paragraph 5.9.

Prattville Intake Modifications:  Physical improvements in the vicinity of the Prattville Intake to attract cold water to the intake.

Party; Parties:  See Paragraph 1.1.

PM&E:  protection, mitigation or enhancement measure.

Project:  See Paragraph 1.2.1.

Pulse Flows:  Short term elevated levels of release from Project dams in amounts and durations specified in Section 1, Appendix A.

Seneca Reach:  That portion of the NFFR between Canyon Dam (Lake Almanor) and Caribou Powerhouse.

Ramping Rate:  The rate of change in a flow release or Controlled Spill from a dam expressed as an increase or decrease in discharge (in cfs) over a period of time.  See Appendix A, Section 1.5.

Reasonable Control Measures:  Measures to control water temperatures as specified in Section I of Appendix A.

Resolved Subjects:  See Paragraph 2.2.

Rock Creek Reach:  That portion of the NFFR between Rock Creek Dam and Rock Creek Powerhouse.

Section 4(e) Conditions: Any license conditions proposed by FS under FPA Section 4(e).

Submerged Curtain/Skimmer Wall:  A design concept for a Prattville Intake Modification that consists of a flexible membrane blocking warm water strata and up to 1250 feet long placed upstream of the Prattville Intake to preferentially release colder water

TRG: 

Uncontrolled Spill:  Release of water from a Project reservoir at times when flow into the reservoir, excluding releases from upstream reservoirs that can be controlled, exceeds the sum of the streamflow release requirement plus the current flow capacity of the generating units.

Water Year Type:  See Appendix A, Section II.

Wet:  Wet water year type as defined in Appendix A, Section II.

 

 

2.   Purpose of Settlement

 

2.1      Purpose. The purpose of this Settlement is to resolve among the Parties all streamflow issues for ecological purposes and river-based recreational use and other Resolved Subjects in support of FS issuing its Final 4(e) Conditions and FERC issuing a New Project License.  For this purpose, the Parties agree that this Settlement constitutes an entire agreement that provides an appropriate balancing of hydroelectric power generation with the Resolved Subjects and the Parties will request that the FERC use the provision of this agreement as an alternative to be considered in the FERC’s NEPA analysis process.

 

2.2      Resolved Subjects.  Except as provided in Paragraph 2.3, the Parties agree that this Settlement fairly, reasonably, and appropriately resolves streamflows and other subjects listed in Table 1 (“Resolved Subjects”) in support of FS issuing Final 4(e) Conditions and FERC issuing a New Project License.   

 

Table 1

 

Subjects Resolved by this Settlement

a)     Streamflows for PM&E of fish, wildlife, and other aquatic biota in Project-affected stream reaches

 

b)     Streamflows for stream channel maintenance in Project-affected stream reaches

c)     Streamflows for whitewater boating and other river-based recreation on the Belden and Seneca reaches

d)     Water quality associated with Project operations and facilities

e)     Streamflow fluctuations from Project operations, including Ramping Rates

f)      Streamflow gaging for compliance monitoring

g)     Stream ecology monitoring

Streamflow information for use by the public

h)     Facility modifications to implement the PM&E measures stated in Appendix A

i)      Administration of Settlement Agreement

j)      River sediment management

k)     Project reservoir operation and lands management principles

l)      Recreation facilities development during the term of the New Project License

 

2.3      Unresolved Subjects.  This Settlement leaves unresolved specific subjects related to the Resolved Subjects.  These unresolved subjects are listed in Table 2.  This Settlement also does not resolve subjects not specifically listed in Table 1 and Table 2. 

 

Table 2

 

Subjects Not Resolved by this Settlement

 

a)     Shoreline Erosion:  Plumas County considers Lake Almanor shoreline erosion an unresolved issue.

b)     Water Temperature:  All Parties await additional information in early 2004 from on-going modeling efforts related to the potential Prattville modifications or other changes (Canyon Dam Outlet Tower Modification, Modification to Caribou 2, etc.) to inform agreement on water temperature condition.

 

c)     Whitewater flow effects on Water Temperature in the Belden Reach:  CSPA considers this an unresolved issue

d)     Term of New Project License:  Licensee, Plumas County, and FS support a 40-year license; American Whitewater, CDFG, NPS support a 40-year license if Rock Creek Cresta (1962) license is extended to coincide with the term of the 2105 license.  SWRCB and CSPA do not support extension of the 1962 license.

e)     Additional Boating Flow Day Triggers:  American Whitewater considers triggers for the addition of boating flow days to be an unresolved issue.

f)      Angler Access Trail Improvement in Seneca Reach: CSPA considers this access issue unresolved.

g)     Wetland and Riparian Habitat Offsite Mitigation:  CSPA considers …(Check with Jerry)

h)     Humbug Valley Offsite Mitigation:  (check with Jerry)

 

 

2.4      No Precedent for Other Proceedings.  This Settlement is made upon the express understanding that it constitutes a negotiated resolution of Resolved Subjects.  No Party shall be deemed to have approved, admitted, accepted, or otherwise consented to any operation, management, valuation, or other principle underlying or supposed to underlie any of the Resolved Subjects, except as expressly provided herein.  Nothing in this Settlement is intended or shall be construed as a precedent with regard to any other proceeding or hydroelectric project, except as expressly provided in Appendix A, Section I.

 

2.5      Compliance with Legal Responsibilities.  Nothing in this Settlement is intended to nor shall be construed to affect or limit the authority of any Party to fulfill its statutory, regulatory, or contractual responsibilities under applicable law.  However, by entering into this Settlement the Parties with such responsibilities represent that they believe their responsibilities relative to Resolved Subjects have been, are, or can be met for the purpose stated in Paragraph 2.1, consistent with and by the terms of this Settlement.

 

          2.5.1    ESA and FPA Section 18 Responsibilities Not Affected.  Nothing in this Settlement is intended to or shall be construed to restrict or affect the continuing responsibilities of FERC or any Party under the Endangered Species Act (“ESA”), including the implementing regulation at 50 C.F.R. § 402.16.   Further, notwithstanding any other provision in this Settlement, this Settlement is not intended to and shall not be construed to address, affect, or apply to the Secretary of the United States Department of the Interior’s independent authority under FPA Section 18 to prescribe fishways, or Licensee’s right to dispute such authority.

 

2.6      Reservation of Claims, Rights, and Responsibilities.  Each Party reserves all claims, rights, and responsibilities, which it may otherwise have with respect to any subjects not listed as Resolved Subjects.  Nothing in this Settlement is intended nor shall be construed to affect or restrict any Party's participation in or comments about compliance with the New Project License, future relicensing of the Project subsequent to the current relicensing, or any other project licensed to Licensee.

 

 

3.         Use of Settlement in New Project License and Section 4(e) Conditions 

 

3.1      Protection, Mitigation, and Enhancement Measures Recommended to be Included in New Project License.  Subject to Paragraphs 3.2 and 3.3, the Parties respectfully request that FERC accept and incorporate, without material modification, as license articles all of the PM&E measures stated in Appendix A of this Settlement. Subject to the same limitation, the Parties further request that FERC not include in the New Project License articles on Resolved Subjects that are inconsistent with this Settlement, except as may be necessary to enable FERC to ascertain and monitor Licensee’s compliance with the conditions of the New Project License and its rules and regulations under the FPA.

               

3.2      Protection, Mitigation, and Enhancement Measures Recommended to be Included in Section 4(e) Conditions.  The Parties respectfully request that FS accept and incorporate, without material modification, as Section 4(e) Conditions all relevant PM&E measures stated in Appendix A of this Settlement. The Parties further request that FS not include in its Section 4(e) Conditions on Resolved Subjects that are inconsistent with this Settlement.  FS agrees to propose as Section 4(e) Conditions on Resolved Subjects the PM&E measures stated in Appendix A of this Settlement which it determines are within its jurisdiction to prescribe as Section 4(e) Conditions, except to the extent that any changes result from analysis under NEPA, National Forest Management Act, and any other applicable law or regulation.  This paragraph shall not be read to predetermine or limit the outcome or lawful discretion of FS in issuing Section 4(e) Conditions or in adopting Section 4(e) Conditions inconsistent with those recommended herein.

 

3.3     Relationship of Settlement to Section 7 Consultation.  The Parties acknowledge that if FERC submits the PM&E measures stated in Appendix A as part of the proposed action for consultation under Section 7 of the ESA, FWS may in its lawful discretion identify PM&E measures different from or additional to those set forth in Appendix A and Appendix B to minimize the effects of take of listed species.

 

3.4      Protection, Mitigation, and Enhancement Measures Recommended to be Included in the 401 Certification.  The Parties respectfully request that the SWRCB accept and incorporate, without material modifications, as conditions to the 401 Certification all the PM&E measures stated in Appendix A of the Settlement that are within the SWRCB’s jurisdiction under Section 401 of the Clean Water Act.  The Parties further request that the SWRCB not include as conditions to the 401 Certification inconsistent conditions on Resolved Subjects.

 

            3.5       Measures Agreed to that will not beIncluded in the New Project License or Section 4(e) Conditions .  Measures agreed to among the Parties that are not to be incorporated in the New Project License or FS Section 4(e) Conditions are stated in Appendix B.  

 

 

4.            Implementation of Settlement

 

4.1      Support of Settlement. The Parties shall be bound by this Settlement for the term stated in Paragraph 1.4, provided the New Project License is consistent with the terms of this Settlement, and specifically the PM&E measures stated in Appendix A hereto.

 

4.2       Support for Issuance of New Project License.  To the extent permitted by applicable law, the Parties shall support or advocate through appropriate written communications to FERC and FS, this Settlement and the PM&E measures stated in Appendix A hereto.  For Resolved Subjects and subject to Paragraph 3.3, the Parties agree not to propose, support, or communicate to FERC or FS any comments, recommended PM&E measures, or license conditions other than ones consistent with this Settlement.  Subject to Paragraph 3.3, prior to the issuance of the New Project License, and at the request of Licensee, the Parties shall timely support this Settlement in written communications to any other administrative agency with advisory or mandatory conditioning authority over issuance of the New Project License, provided this sentence shall not apply to the agency exercising the authority.

 

4.3      New Project License, Final 4(e) Conditions, 401 Certification or Other Mandatory Conditions Inconsistent with this Settlement

 

      4.3.1      New Project License.  If the New Project License issued by FERC contains any material modification of the PM&E measures stated in Appendix A or Appendix B, incorporates fewer than all of the PM&E measures stated in Appendix A, or includes additional measures related to Resolved Subjects (“inconsistent with this Settlement”), this Settlement shall be deemed modified to conform to the New Project License, unless a Party provides Notice that it disputes the inconsistency within 30 days after the date of the license order, and that Party initiates the Alternative Dispute Resolution (“ADR”) procedures stated in Paragraph 4.9.1 - Paragraph 4.9.3.  Before initiating the ADR, a Party shall make a good faith effort to meet and confer with other Parties to this Settlement.  The disputing Party(s) may, in addition, initiate the rehearing procedure described in Paragraph 4.4.1.  If the New Project License does not contain all of the PM&E measures stated in Appendix A because FERC expressly determines that it does not have jurisdiction to adopt or enforce the omitted PM&E measures, the Parties agree that they shall be bound by the entire Settlement, including those recommended PM&E measures omitted by FERC, provided the New Project License contains those PM&E measures stated in Appendix A over which FERC determines it does have jurisdiction and the New Project License is otherwise consistent with this Settlement.

 

          4.3.2    Final 4(e) Conditions.  If any Final 4(e) Condition is inconsistent with this Settlement, this Settlement shall be deemed modified to conform to the Final 4(e) Conditions, unless a Party provides Notice that it disputes the inconsistency by initiating the ADR procedures stated in Paragraph 4.9.1 - Paragraph 4.9.3.  Before initiating the ADR, a Part shall make a good faith effort to meet and confer with other Parties to this Settlement.  The disputing Party(s) may, in addition, initiate the appeal procedure described in Paragraph 4.4.2.  If the Final 4(e) Conditions do not contain all of the PM&E measures stated in Appendix A because FS expressly determines that it does not have jurisdiction to adopt or enforce the omitted PM&E measures, the Parties shall be bound by the entire Settlement, including those recommended PM&E measures omitted by FS, provided the Final 4(e) Conditions contain those PM&E measures stated in Appendix A over which FS determines it does have jurisdiction and the Final 4(e) Conditions are otherwise consistent with this Settlement.

 

          4.3.3    401 Certification.  If any provision of the 401 Certification is inconsistent with the Settlement, the Settlement shall be deemed modified to conform to the provisions of the 401 Certification, unless a Party provides Notice within 30 days of the dates of the 401 certification that it disputes the inconsistency, and that Party initiates the ADR procedures stated in Paragraph 4.9.1 et seq.  Before initiating the ADR, a Party shall make a good faith effort to meet and confer with other Parties to this Settlement.  The disputing Party(s) may, in addition, initiate the rehearing procedure described in Paragraph 4.4.3.  If the 401 Certification does not contain all of the PM&E measures stated in Appendix A because SWRCB expressly determined that it does not have jurisdiction to adopt or enforce the omitted PM&E measures, the Settlement shall not be used as the basis for dispute among the Parties, and the Parties shall be bound by the entire Settlement, including those recommended PM&E measures omitted by the SWRCB, provided the 401 Certification contains those PM&E measures stated in Appendix A over which SWRCB determines it does have jurisdiction and the 401 Certification is otherwise consistent with the Settlement.

 

          4.3.4    Other Mandatory License Conditions.  If an agency other than FS files with FERC any mandatory license condition that is inconsistent with this Settlement, this Settlement shall be deemed modified to conform to such condition, unless a Party provides Notice that it disputes the inconsistency within 30 days after the date of filing of such condition, and that Party initiates the ADR procedures stated in Paragraph 4.9.1 - Paragraph 4.9.3.  Before initiating the ADR, a Party shall make a good faith effort to meet and confer with other Parties to this Settlement.  The disputing Party(s) may, in addition, initiate any appeal procedure applicable to the agency that issued such condition.  If such mandatory license conditions do not contain all of the PM&E measures stated in Appendix A because the issuing agency expressly determines that it does not have jurisdiction to adopt or enforce the omitted PM&E measures, the Parties agree that they shall be bound by the entire Settlement, including those recommended PM&E measures omitted by the issuing agency, provided the mandatory license conditions contain those PM&E measures stated in Appendix A over which issuing agency determines it does have jurisdiction, and the mandatory license conditions are otherwise consistent with this Settlement.

 

            4.4      Appeal of New Project License, Final 4(e) Condition, 401 Certification, or other Mandatory License Conditions Inconsistent with this Settlement.

 

          4.4.1    Appeal to FERC.  Any Party may petition FERC for rehearing or seek judicial review of any New Project License article, or omission of PM&E measures stated in Appendix A, that is inconsistent with this Settlement.  The ADR requirements stated in Paragraph 4.9.1 - Paragraph 4.9.3 do not preclude any Party from timely filing for and pursuing rehearing under 18 C.F.R. § 385.713(b), or judicial review, of the inconsistent license article or any other license article that relates to subjects not listed as a Resolved Subject.   However, the Parties shall follow the ADR procedures stated in Paragraph 4.9.1 - Paragraph 4.9.3 to the extent reasonably practicable while such appeal of an inconsistency is pursued.  If any Party or non-Party files for administrative rehearing or judicial review of any New Project License article that is inconsistent with this Settlement, Licensee’s duties under this Settlement related to that article are suspended to the extent necessary to enable Licensee to comply with the license.  If a Party has filed for rehearing or judicial review of any New Project License article that is inconsistent with this Settlement and the Parties subsequently agree to modify this Settlement to conform to the inconsistent article, the filing Party(s) shall withdraw the appeal, or recommend such withdrawal, as appropriate. Except as provided in Paragraph 4.3.1 for omissions based on jurisdiction, if any New Project License article is inconsistent with this Settlement after a final and non-appealable administrative or judicial decision on the appeal, this Settlement shall be deemed modified to conform to the final decision unless a Party provides Notice that it disputes the inconsistency within 45 days after the date of the final decision and initiates the ADR procedures stated in Paragraph 4.9.1 - Paragraph 4.9.3.  Except as necessary to fulfill a statutory or regulatory responsibility or policy, the Parties have a continuing duty to support this Settlement, or as appropriate, recommend such support, during an administrative rehearing or judicial review.

 

      4.4.2      Reconsideration of 401 Certification.  Any Party may seek administrative rehearing or judicial review of and provision of the 401 Certification, or omission of PM&E measures stated in Appendix A, that is inconsistent with the Settlement.  The ADR requirements of Paragraph 4.9.1 et seq. do not preclude any Party from timely filing and pursuing a petition for reconsideration under California Code of Regulations, title 23, section 3867-3869, or judicial review, of any provision of the 401 Certification that is inconsistent with the Settlement, or any other provision of the 401 Certification that relates to subjects not listed as a Resolved Subject.  However, the Parties shall follow the ADR procedures stated in Paragraph 4.9.1 et seq to the extent reasonably practicable while any such petition or judicial review of an inconsistency is pursued.  If a Party has filed for administrative rehearing or judicial review of any provision of the 401 Certification that is inconsistent with the Settlement and the Parties subsequently agree to modify the Settlement to conform to the inconsistent condition, the filing Party(s) shall withdraw the petition or dismiss the judicial action, or recommend such withdrawal or dismissal, as appropriate.  Except as provided in Paragraph 4.3.3 for omissions based on jurisdiction, if any provision of the 401 Certification is inconsistent with the Settlement after the final and non-appealable decision on the petition or judicial action, the Settlement shall be deemed modified to conform to the final decision, unless a Party provides Notice that it disputes the inconsistency within 45 days after the date of the final decision, and that Party initiates the ADR procedures stated in Paragraph 4.9.1 et seq.  Except as necessary to fulfill a statutory responsibility or policy, all Parties have a continuing duty to support the Settlement, or as appropriate, recommend such support, during an administrative rehearing or judicial review.  If there is disagreement about the need for such support between the requesting Party and any other the Party, those Parties shall meet and confer within 5 days of the request being made and shall take all reasonable good faith efforts to resolve the disagreement consistent with the obligation to cooperate.

 

          4.4.3                        Appeal to other Agency with Mandatory Conditioning Authority. Any Party may seek administrative rehearing or judicial review of any mandatory license condition that, as filed with FERC, is inconsistent with this Settlement.  The ADR requirements stated in Paragraph 4.9.1 - Paragraph 4.9.3 do not preclude any Party from timely filing and pursuing such appeal of a mandatory license condition that is inconsistent with this Settlement, or any other mandatory license condition that relates to subjects not listed as a Resolved Subject.  However, the Parties shall follow ADR procedures stated in Paragraph 4.9.1 - Paragraph 4.9.3 to the extent reasonably practicable while any such appeal of an inconsistency is pursued.  If a Party has filed for administrative rehearing or judicial review of any mandatory license condition that is inconsistent with this Settlement, and the Parties subsequently agree to modify this Settlement to conform to the inconsistent condition, the filing Party(s) shall withdraw the appeal, or recommend such withdrawal, as appropriate.  If any mandatory license condition is still inconsistent with this Settlement after a final and non-appealable administrative or judicial decision on the appeal, this Settlement shall be deemed modified to conform to the final decision, unless a Party provides Notice that it disputes the inconsistency within 45 days after the date of the final decision, and that Party also initiates the ADR procedures stated in Paragraph 4.9.1 - Paragraph 4.9.3.  Except as necessary to fulfill a statutory or regulatory responsibility or policy, all Parties have a continuing duty to support this Settlement, or as appropriate, recommend such support, during such administrative rehearing or judicial review.

 

4.5      Cooperation Among Parties. The Parties shall cooperate in the performance of this Settlement and compliance with related new Project license articles.  Among other things, the Parties shall cooperate in implementing the PM&E measures, conducting studies, performing monitoring, and conducting all other activities within their statutory or regulatory authorities related to the measures stated in Appendices A & B of this Settlement, as may be modified in the New Project License.  Further, subject to Paragraph 2.5, inclusive of 2.5.1, and upon Licensee’s request, the Parties shall provide written communications of support in any administrative approval that may be required for implementation of this Settlement or related articles of the New Project License, provided this obligation shall not apply to the agency exercising the authority. 

 

          4.5.1      Responsibility for Costs.  Licensee shall pay for the cost of actions required of Licensee by this Settlement or the New Project License.  Licensee shall have no obligation to reimburse or otherwise pay any other Party for its assistance, participation, or cooperation in any activities pursuant to this Settlement or the New Project License unless expressly agreed to by Licensee or as required by law.

 

          4.5.2      Licensee Solely Responsible for Operations of Project.  By entering into this Settlement, none of the Parties, except for Licensee, have accepted any legal liability nor responsibility for the operation of the Project.

 

          4.5.3      Availability of Funds.  Implementation of this Settlement for a Party that is a federal agency is subject to the requirements of the Anti-Deficiency Act, 31 United States Code, Section 1341, and the availability of appropriated funds.  Nothing in this Settlement is intended nor shall be construed to require the obligation, appropriation, or expenditure of any money from the U.S. Treasury.  The Parties acknowledge that the Parties that are federal agencies shall not be required under this Settlement to expend any federal agency’s appropriated funds unless and until an authorized official of each such agency affirmatively acts to commit such expenditures as evidenced in writing.  Implementation of this Settlement by Parties that are state or local agencies is subject to the availability of appropriated funds.  Nothing in this Settlement is intended nor shall be construed to require the obligation, appropriation, or expenditure of any money from the Treasury of the State of California or Plumas County.  The Parties acknowledge that the Parties that are state or local agencies shall not be required under this Settlement to expend any appropriated funds unless and until an authorized official of each such agency affirmatively acts to commit such expenditures as evidenced in writing.

 

          4.5.4    FS and Plumas County Participation in Settlement.  FS is not included in the definition of the words “Party” or “Parties” as used in Paragraphs 3.1, 3.2, 4.1, 4.2, 4.3.2, 4.4.1, 4.4.2, 4.5, and 4.7.1 of this Settlement.  Additionally, FS’ obligations under and participation in this Settlement are fulfilled upon issuance of a New Project License containing Final 4(e) Conditions that are no longer subject to administrative appeal or judicial review.  Notwithstanding any provision to the contrary, nothing in this Settlement is intended or shall be construed to create FS and Plumas County authority over a subject that is not within its existing authority.

 

          4.5.5    Escalation of Costs.  Unless otherwise indicated, costs specified as a year 2004 cost basis shall be escalated (starting in January 2005) based on the U. S. Gross Domestic Product - Implicit Price Deflator (GDP-IPD).  Costs not specified as a year 2004 cost basis are constant dollars not subject to escalation.

 

4.6      Implementation Schedule.  Implementation of the PM&E measures stated in Appendix A shall begin after issuance of the New Project License and consistent with the schedule specified in Appendix A (as may be modified by the New Project License). Implementation of the measures stated in Appendix B shall begin consistent with the schedule specified in Appendix B.  Within six months after issuance of the New Project License, Licensee shall prepare and provide to all Parties the Licensee’s planned schedule for implementing the PM&E measures recommended in this Settlement and incorporated in the New Project License.  The schedule shall specify dates for initiation, progress reporting, monitoring and completion, as appropriate, for each such PM&E measure and shall include milestones for major activities.

 

            4.7            Reopener or Amendment of New Project License

 

          4.7.1      Reopener.  Except as required to fulfill statutory or regulatory responsibilities or as provided in Paragraph 4.7.2, a Party to this Settlement may seek to modify, or otherwise reopen during the term of this Settlement the PM&E measures from this Settlement included in the New Project License, only if and when significant new information not known or understood as of the date of issuance of the New Project License reasonably demonstrates that such proposed modification or other cause of reopener is in furtherance of the public interest under the FPA or other applicable law.  In such an event, that Party shall provide Licensee at least 90-day Notice to consider the new information and that Party’s position.   A Party shall not be required to comply with this 90-day Notice provision if it believes an emergency situation exists, or if required to meet its responsibilities under applicable law.  Notwithstanding the provisions of this paragraph, any Party may seek to reopen the New Project License to implement future changes in applicable law, or to protect Beneficial Uses through coordinated operations of this Project, Rock Creek – Cresta Project (No. 1962), and Poe Project (No. 2107), in connection with the relicensing proceedings for the latter two projects.

 

          4.7.2      Amendment.   Nothing in this Settlement is intended or shall be construed to affect or limit the right of Licensee to seek amendments of the New Project License, provided that Licensee may seek a Project license amendment which would adversely affect this Settlement only if Licensee, relying on significant new information not known or understood as of the date of issuance of the New Project License, can reasonably demonstrate in the amendment proceeding that the amendment is in furtherance of the public interest under the FPA or other applicable law.  Prior to filing a proposed license amendment which relates to a Resolved Subject or would otherwise affect this Settlement, Licensee shall provide the Parties at least 90-day Notice of its intention to do so, and promptly following the giving of such Notice, shall consult with Parties responding within 30 days of such Notice regarding the need for and the purpose of the amendment, provided Licensee shall not be required to comply with this 90-day Notice provision if it believes an Emergency exists or if required to meet its responsibilities under applicable law or an order of an agency with jurisdiction over Licensee.  In such an Emergency, Licensee shall give Notice to the Parties and SWRCB within 5 days of the event.  In any application for a Project license amendment that relates to a Resolved Subject or would otherwise affect this Settlement, Licensee shall provide with its application documentation of its consultation with the responsive Parties, summarize the positions and recommendation of the responsive Parties and provide its response to those positions and recommendations.  Licensee shall not oppose an intervention request by any Party that satisfies FERC’s procedural requirements in a proceeding for a Project license amendment that any Party has concluded would adversely affect this Settlement.  A Project license amendment that, as approved by FERC, would adversely affect this Settlement is subject to Paragraph 4.3.1.  Further, a Project license amendment that, as approved by FERC, would adversely affect this Settlement may be considered by a Party as significant new information, allowing that Party to invoke the reopener provision in Paragraph 4.7.1.

 

4.8      Amendment of Settlement.  This Settlement may be amended at any time through the term of the New Project License plus the term(s) of any annual license(s) which may be issued after the foregoing New Project License has expired, after Notice, with the unanimous agreement of all Parties still in existence and responsive within 30 days of such Notice.  Any amendment of this Settlement shall be in writing and executed by the responding Parties.

 

            4.9      Dispute Resolution

 

          4.9.1      General.  Except to the extent that FERC, FS, or other agency with jurisdiction over a Resolved Subject has a procedure that precludes implementation of Paragraph 4.9.1 - Paragraph 4.9.3 all disputes among the Parties regarding any Party’s performance or compliance with this Settlement, including resolution of any disputes related to any New Project License article, Final 4(e) Condition, or mandatory license condition filed with FERC by an agency other than the FS, that is inconsistent with this Settlement, shall be the subject of a non-binding alternative dispute resolution (“ADR”) procedure among the disputing Parties, as stated in this Paragraph 4.9.1 - Paragraph 4.9.3.  Each Party participating in a dispute (“disputing Party,” or collectively, “disputing Parties”) shall cooperate in Good Faith to promptly schedule, attend and participate in the ADR.  The disputing Parties agree to devote such time, resources and attention to the ADR as is needed to attempt to resolve the dispute at the earliest time possible.  Each disputing Party shall implement promptly all final agreements reached, consistent with its applicable statutory and regulatory responsibilities.  Nothing in Paragraph 4.9.1 - Paragraph 4.9.3 is intended or shall be construed to affect or limit the authority of FERC, FS, or other agency with jurisdiction over a Resolved Subject, to resolve a dispute brought before it in accord with its own procedure and applicable law.

 

                        4.9.2            ADR Procedures.  A Party claiming a dispute shall give Notice of the dispute within 30 days of the Party’s actual knowledge of the act, event, or omission that gives rise to the dispute, unless this Settlement provides otherwise.  If the dispute includes a claim that any New Project License article, Section 4(e) Condition, or mandatory license condition filed with FERC by an agency other than FS, is inconsistent with this Settlement, and the claim arises prior to rehearing or appeal, the Notice shall be made within the time periods specified in Paragraphs 4.3.1, 4.3.2, or 4.3.3, 4.3.4 respectively.  If the dispute includes a claim that any New Project License article, Section 4(e) Condition, or mandatory license condition filed with FERC by an agency other than FS, is inconsistent with this Settlement, and the claim arises during or after rehearing or appeal, the Notice shall be made within the time periods specified in Paragraphs 4.4.1, 4.4.2, and 4.4.3, respectively.  At a minimum and in any dispute subject to these ADR procedures, the disputing Parties shall hold two informal meetings within 30 days after Notice, to attempt to resolve the disputed issue(s).  Any disputing Party may request that a FERC employee facilitate these informal meetings to assist in resolving the dispute.  If the informal meetings fail to resolve the dispute, the disputing Parties shall attempt to resolve the dispute using a neutral mediator jointly selected within 15 days after Notice by a disputing Party that the informal meetings did not resolve the dispute.  The disputing Parties shall select a mediator from the sources described in 18 CFR §385.604(c)(3). Absent an agreement for equitable allocation of costs of the mediator, the Parties shall select a FERC employee as mediator.  The mediator shall mediate the dispute during the next 60 days after their selection.  Any of these time periods may be reasonably extended or shortened by agreement of the disputing Parties, or as necessary to conform to the procedure of an agency or court with jurisdiction over the dispute.  Unless otherwise agreed among the disputing Parties, each disputing Party shall bear its costs for its own participation in the ADR procedures.

 

          4.9.3      Enforcement of Settlement After Dispute Resolution. Any Party may seek in a court of competent jurisdiction specific performance of this Settlement by any other Party, after compliance with the ADR procedures stated in Paragraph 4.9.1 -Paragraph 4.9.3.  No Party shall be liable in damages for any breach of this Settlement, any performance or failure to perform a mandatory or discretionary obligation imposed by this Settlement, or any other cause of action arising from this Settlement.  The time used to comply with the ADR procedures shall be excluded from computing any applicable statute of limitations, except where applicable law precludes such exclusion when computing time.  Nothing in Paragraph 4.9.1 - Paragraph 4.9.3 is intended or shall be construed to affect or limit the jurisdiction of any agency or court as established under applicable law.

 

4.10      Withdrawal From Settlement.

 

          4.10.1      Withdrawal of a Party from Settlement.  A Party may withdraw from this Settlement only in the following circumstances: (a) a disputing Party claiming a material breach or violation of this Settlement may withdraw once the Party has complied with the ADR procedures stated in Paragraph 4.9.1 - Paragraph 4.9.3 to attempt to resolve the dispute; or (b) a Party objecting to a final and non-appealable order issuing a New Project License that is inconsistent with this Settlement may withdraw once the Party has complied with the ADR procedures stated in Paragraph 4.9.1 - Paragraph 4.9.3 to attempt to resolve the objection.  In addition, Licensee may withdraw as provided in Paragraph 4.10.2.  In addition, when required to fulfill statutory or regulatory responsibility, a Party that is an agency may suspend participation or, if necessary, withdraw from this Settlement, without first using the ADR procedures stated in Paragraph 4.9.1 - Paragraph 4.9.3.  Finally, a Party may withdraw as provided in Paragraph 5.3.

     

          4.10.2      Withdrawal of Licensee from Settlement.  In addition to the provisions of Paragraph 4.10.1, Licensee may withdraw from this Settlement without first complying with the ADR procedures stated in Paragraph 4.9.1 - Paragraph 4.9.3 if a Party  does not execute or withdraws from this Settlement, and Licensee reasonably determines at its sole discretion that the failure to execute or the withdrawal (a) may adversely affect the likelihood of FS issuing Final 4(e) Conditions consistent with this Settlement; (b) may adversely affect FERC’s issuance of a New Project License consistent with this Settlement; (c) may adversely affect the likelihood of SWRCB issuing a 401 Certification consistent with this Settlement; or (d) substantially diminishes the value of this Settlement to Licensee.  Licensee shall exercise the right to withdraw from this Settlement as provided in this paragraph within 30 days of Licensee’s knowledge of the event creating the right to withdraw.

          

           4.10.3  Method of Withdrawal.  A Party may exercise its right to withdraw from this Settlement by giving Notice.  Withdrawal is effective 10 calendar days after Notice. A Party that is an agency may suspend participation in this Settlement as provided in Paragraph 4.10.1 by giving Notice.

 

          4.10.4      Continuity After Withdrawal. The withdrawal of a Party, other than Licensee, does not terminate this Settlement for the remaining Parties.  If a Party withdraws from this Settlement, the withdrawing Party shall not be bound by any term contained in this Settlement. 

 

4.11      Termination of Settlement.  This Settlement shall terminate as to all Parties and have no further force or effect upon expiration of the New Project License and any annual licenses issued after expiration thereof or upon withdrawal from this Settlement of Licensee.  If this Settlement is terminated, this Settlement and all documents related to its development, execution, and submittal to FERC shall be deemed confidential and shall not be discoverable or admissible in any forum or proceeding for any purpose to the fullest extent allowed by applicable law, including 18 C.F.R. § 385.606.  This provision does not apply to the results of resource studies or other technical information developed for use by the Collaborative.

 

4.12      Addition of Signatory to Settlement. (language to be added)

 

5.            General Provisions

 

5.1      Non-Severable Terms of Settlement.  The terms of this Settlement are not severable one from the other.  This Settlement is made on the understanding that each term is in consideration and support of every other term, and each term is a necessary part of the entire Settlement.

 

5.2      No Third Party Beneficiaries.  Without limiting the applicability of rights granted to the public pursuant to applicable law, this Settlement shall not create any right or interest in the public, or any member thereof, as a third party beneficiary hereof, and shall not authorize any non-Party to maintain a suit at law or equity pursuant to this Settlement.   The duties, obligations and responsibilities of the Parties with respect to third parties shall remain as imposed under applicable law.

 

5.3      Successors and Assigns. This Settlement shall apply to, and be binding on, the Parties and their successors and assigns.  Upon completion of a succession or assignment, the initial Party shall no longer be a Party to this Settlement.  No change in ownership of the Project or transfer of the existing or New Project License by Licensee shall in any way modify or otherwise affect any other Party’s interests, rights, responsibilities or obligations under this Settlement.  Unless prohibited by applicable law, Licensee shall provide in any transaction for a change in ownership of the Project or transfer of the existing or New Project License, that such new owner shall be bound by, and shall assume the rights and obligations of this Settlement upon completion of the change of ownership and approval by FERC of the license transfer.  In the event applicable law prohibits the new owner from assuming the rights and obligations of this Settlement, any Party may withdraw from this Settlement.  A transferring or assigning Party shall provide Notice to the other Parties at least 30 days prior to completing such transfer or assignment.

 

5.4      Failure to Perform Due to Force Majeure.  No Party shall be liable to any other Party for breach of this Settlement as a result of a failure to perform or for delay in performance of any provision of this Settlement due to any cause reasonably beyond its control.  This may include, but is not limited to, natural events, labor or civil disruption, or breakdown or failure of Project works.  The Party whose performance is affected by a force majeure shall notify the other Parties in writing within seven (7) days after becoming aware of any event that such affected Party contends constitutes a force majeure.  Such notice will: identify the event causing the delay or anticipated delay; estimate the anticipated length of delay; state the measures taken or to be taken to minimize the delay; and estimate the timetable for implementation of the measures.  The affected Party shall make all reasonable efforts to promptly resume performance of this Settlement, and, when able to resume performance of its obligations and give the other Parties written notice to that effect.

 

5.5      Governing Law.  The New Project License and any other terms of this Settlement over which a federal agency has jurisdiction shall be governed, construed, and enforced in accordance with the statutory and regulatory authorities of such agency.  This Settlement shall otherwise be governed and construed under the laws of the State of California.  By executing this Settlement, no federal agency is consenting to the jurisdiction of a state court unless such jurisdiction otherwise exists.  All activities undertaken pursuant to this Settlement shall be in compliance with all applicable law.

 

5.6      Elected Officials Not to Benefit.  No member of or delegate to Congress shall be entitled to any share or part of this Settlement or to any benefit that may arise from it.

 

5.7      No Partnership.  Except as otherwise expressly set forth herein, this Settlement does not and shall not be deemed to make any Party the agent for or partner of any other Party.

 

5.8      Reference to Regulations.  Any reference in this Settlement to any federal or state regulation shall be deemed to be a reference to such regulation, or successor regulation, in existence as of the date of the action.

 

5.9      Notice.  Except as otherwise provided in this paragraph, any Notice required by this Settlement shall be written.  It shall be sent to all Parties still in existence by first-class mail or comparable method of distribution, and shall be filed with FS and FERC.  For the purpose of this Settlement, a Notice shall be effective 7 days after the date on which it is mailed or otherwise distributed.  When this Settlement requires Notice in less than 7 days, Notice shall be provided by telephone, facsimile or electronic mail and shall be effective when provided.  For the purpose of Notice, the list of authorized representatives of the Parties as of the Effective Date is attached as Appendix C.  The Parties shall provide Notice of any change in the authorized representatives designated in Appendix C, and Licensee shall maintain the current distribution list of such representatives.

 

5.10      Paragraph Titles for Convenience Only.  The titles for the paragraphs of this Settlement are used only for convenience of reference and organization, and shall not be used to modify, explain, or interpret any of the provisions of this Settlement or the intentions of the Parties. 

 

 

6.            Execution of Settlement

 

6.1        Signatory Authority.  Each signatory to this Settlement certifies that he or she is authorized to execute this Settlement and to legally bind the Party he or she represents, and that such Party shall be fully bound by the terms hereof upon such signature without any further act, approval, or authorization by such Party.

 

          6.2Disclosure of Other Agreements.  Each Party represents that it has disclosed any other existing agreement with any Party or non-Party relating to this Settlement.  If a Party subsequently determines that it has such an agreement, such Party shall provide Notice of the terms of that agreement. (Check with attorneys if ok to delete)

 

6.3      Signing in Counterparts.  This Settlement may be executed in any number of counterparts, and each executed counterpart shall have the same force and effect as an original instrument as if all the signatory Parties to all of the counterparts had signed the same instrument.  Any signature page of this Settlement may be detached from any counterpart of this Settlement without impairing the legal effect of any signatures thereon, and may be attached to another counterpart of this Settlement identical in form hereto but having attached to it one or more signature pages.

 

WHEREFORE, for valuable consideration, which is hereby acknowledged, and by authorized representatives, the Parties execute this Settlement effective as of __________________________


APPENDIX A.  Protection, Mitigation, and Enhancement Measures Recommended to be Included in New Project License, Section 4(e) Conditions, and Other Mandatory License Conditions

 

Section 1. Streamflow Management

 

1.  Minimum Streamflows.  For the preservation and improvement of aquatic resources in the Project area, Licensee shall maintain specified Minimum Streamflows and release Pulse Flows below Project dams as measured at gages NF-2 and NF-70 in accordance with the Tables A-1 and A-2 below.  The Minimum Streamflows identified are minimum release requirements as per Paragraph 5.  Streamflows in Table A-2 may need to be increased (adjusted) to achieve water temperatures protective of cold-water habitat, as determined to be under the reasonable control of Project Operation.  Minimum Streamflows shall commence within 60 days of the issuance of the new license, unless facility modifications are required.

 

Table A-1.  Releases from Canyon Dam

 

Water Year Type

Jan

Feb

Mar

Apr

May

Jun

Jul

Aug

Sep

Oct

Nov

Dec

CD

75

75

90

90

90

80

75

60

60

60

60

70

Dry

90

100

110

110

110

110

80

70

60

60

60

75

Normal

90

100

125

125

125

125

90

80

60

60

60

75

Wet

90

100

125

150

150

150

95

80

60

60

60

75

 

 

Table A-2.  Releases from Belden Dam

 

 Water Year type

Jan

Feb

Mar

Apr

May

Jun

Jul

Aug

Sep

Oct

Nov

Dec

CD

105

130

170

180

185

90

80

75

75

75

85

90

Dry

135

140

175

195

195

160

130

110

100

100

110

115

Normal

140

140

175

225

225

225

175

140

140

120

120

120

Wet

140

140

180

235

235

225

175

140

140

120

120

120

 

 

Where facility modification is required to implement the efficient release of minimum streamflows, the Licensee shall submit applications for permits within one year after issuance of the new license and complete such modifications as soon as reasonably practicable but no later than two years after receipt of all required permits and approvals.    Prior to completion of such required facility modifications, the Licensee shall make a good faith effort to provide the specified minimum streamflows within the capabilities of the existing facilities.  The requirements of this article are subject to temporary modification if required by equipment malfunction, emergency conditions or as directed by law enforcement authorities, or critical electric system emergency reasonably beyond the control of the Licensee.

 

2.  Streamflows in Lower Butt Creek.  Licensee shall take no action to reduce dam leakage, tunnel leakage, spring or other natural flows that currently provide inflow to Lower Butt Creek below the Butt Valley Dam unless directed to do so by FERC or other regulatory agency.  As part of any such order, any negative impact that a reduction in flow would have on the ecology of Lower Butt Creek will be considered.

 

3.  Pulse Flows in North Fork Feather River.   Pulse flows and gravel monitoring will be implemented in the Seneca and Belden Reaches to further assist in the preservation and improvement of aquatic conditions in the Project area.

 

A.  Pulse Flows:  Licensee shall provide one pulse flow release from both Canyon Dam (Seneca Reach) and Belden Forebay Dam (Belden Reach) in each of January, February and March if the forecasted Water Year Type for that month, as defined in Section __, indicates that the water year is anticipated to be either Normal or Wet.  No pulse flows are required in months where the Water Year Type forecast for that month indicates that the water year will be either Dry or Critically Dry.  No pulse flows will be required in March in the respective reach if two successive days of mean daily water temperature greater than 10 degrees C are measured at gages NF2 or NF70, or if rainbow trout spawning is observed in the Seneca or Belden Reaches and reported to Licensee by CDFG or FS.  In both the Seneca and Belden Reaches, pulse flows shall be implemented such that the release volume is no more than 1,800 acre-feet of water per each pulse flow event.  The typical schedule is to increase the streamflow at the Basic Ramping Rate (as defined below in Section 1, Paragraph 6) to reach the peak streamflow, and hold the peak streamflow for 12 hours.  The peak streamflow is variable by month and water year type as follows:  675 cfs in January of Wet and Normal water years; 1,000 cfs in February and March of Normal water years, and 1,200 cfs in February and March of Wet water years.  In the Seneca Reach during March of Normal and Wet years,  streamflow is reduced at the Basic Ramping Rate until 400 cfs is reached, held at that streamflow for 6 hours, and then reduced at the Basic Ramping Rate until the Minimum Streamflow specified in Paragraph 1 above is reached.  The 6-hour period of constant streamflow during the ramp down shall occur between 9 am and 3 pm of a weekend to allow recreational boating opportunities.    In the Belden Reach, no period of constant flow during the ramp down is required in any month.

 

B.  Pulse Flow Monitoring (Gravel Monitoring Plan):  The Licensee shall, within 12 months of license issuance, develop and implement a Pulse Flow Monitoring Plan, in consultation with the FS, CDFG, FWS, SWRCB, and other Parties that has been approved by the FS, and filed with FERC.  The plan shall evaluate movement of sediment that occurs during scheduled pulse flow events and other flow events of a similar magnitude as scheduled pulse flows.  Emphasis shall be placed on monitoring the movement of spawning-sized gravel and recruitment of similar-sized material into the Belden and Seneca Reaches.  If, after consultation with the FS, CDFG, FWS, and SWRCB, the resource agencies determine that the pulse flows appear to have a detrimental impact on the availability and distribution of spawning-sized gravel, or it appears that a pulse flow of a different magnitude or duration would be beneficial, the pulse flow schedule shall be altered to better achieve the desired results.  The proposed, revised schedule of pulse flows shall be approved by the FS and filed with FERC.  Regardless of changes made to the magnitude and duration of a pulse flow, the total volume of water that is allocated for pulse flows in each year shall not increase beyond the volume described in Paragraph 3 of Section XX.

 

4.  Pulse Flows in Lower Butt Creek.  If determined to be necessary as per Paragraph 8 below, Licensee shall provide pulse flows via use of the Butt Valley Reservoir spillway or an acceptable alternative.  The magnitude, ramping, and duration of the pulse flow[s] will be determined in consultation with FS, FWS, SWRCB, CDF&G and Parties and will consider the need to adequately move desired particle size material to the confluence with the Seneca Reach and address woody debris and live vegetation concerns.  The timing of any pulse flows shall be coordinated and occur simultaneously with pulse flows in the Seneca Reach.

 

5.  Streamflow Measurement.  For the purpose of determining the river stage and Minimum Streamflow below Canyon Dam and Belden Forebay Dam, Licensee shall operate and maintain the existing gages at NF-2 and NF-70 (United States Geological Survey (USGS) gages 11399500 and 11401112, respectively) consistent with all requirements of FERC and under the supervision of the USGS.  Any modification of the gage facilities at NF-2 and NF-70 that may be necessary to measure the new Minimum Streamflow releases shall be completed within three years after issuance of the new license.  Individual mean daily flows shall be equal to or greater than the Minimum Streamflow designated as shown on Table A-1 and A-2.  The instantaneous 15-minute streamflow at the compliance gage shall be at least 90 percent of the mean daily flow.  

 

6.  Ramping Rates.  For the preservation and improvement of aquatic resources in the Project area, Licensee shall control river flows by ramping streamflow releases from Project dams as provided in this Paragraph.  Ramping Rates shall not apply to releases from Project Powerhouses (excluding Oak Flat Powerhouse) or unregulated spills from Project dams.

 

A.  Basic Ramping Rates:  During periods when ramping can be controlled, Ramping Rates shall apply to releases made from Canyon Dam and Belden Dam.  Ramping Rates shall be followed during releases made to provide winter pulse flows and summer recreation flows, and all other releases from dams that the Licensee makes for operational purposes.  Monthly changes in Minimum Streamflow releases shall be made in a single step because the change is always less than the Ramping Rate criterion.  Licensee shall follow the Basic Ramping Rate as close as reasonably practicable given gate and other operating limitations: 

 

      Canyon Dam:  0.5 ft/hr up and down, in all months, as measured at NF-2; and

      Belden Dam:  0.5 ft/hr up and down, in all months, as measured at NF-70.

 

Changes in Canyon Dam streamflow releases, because of gate size and other factors, may exceed the Ramping Rate in any particular hour, but Licensee shall make a good faith effort to return to the overall Basic Ramping Rate in the next and subsequent hours. 

 

B.      Revision to Ramping Rates:  In the event that studies or monitoring during the term of the License result in changes to the Basic Ramping Rate, the new Ramping Rates shall not result in an increase in the total volume of water that is required to be released when the new Basic Ramping Rates are applied to Pulse Flows (FIX LATER)10% for Recreation River Flows. 

 

C.  Unit Trips:  Licensee shall make a good faith effort to control streamflow releases to stay within the basic Ramping Rates but shall not be in violation of the Basic Ramping Rates in the event that the specified rates are exceeded due to a unit tripping off-line, and subsequent restoration, or other conditions beyond the reasonable control of Licensee.

 

7.  Belden Block Loading.  To minimize 1) the frequency of fluctuation in the river stage and 2) help meet Basic Ramping Rates at downstream Licensee dams, Licensee shall block load Belden Powerhouse at times when the Rock Creek Dam is spilling water in excess of the minimum streamflow required under the License for Project No. 1962 but less than 3,000 cfs.  Under block loading, a unit’s generation level is not cycled but rather set at a constant level for a predetermined period of time.  Licensee shall not be required to implement or continue this operation if the gate controls at downstream Licensee dams are shown to be able to meet the Ramping Rates specified in the Project 1962 License without such block loading.  If the draft through Belden Powerhouse needs to be increased or decreased from block loading levels between 0 and 40 MW, Licensee shall, to the extent reasonably feasible, make adjustments to Belden Powerhouse drafts so as not to exceed ramping rates specified in the Project 1962 license.  Because of operational constraints that limit Licensee’s ability to operate Belden Powerhouse between 40 and 70 MW, Licensee shall not be required to comply with the Basic Ramping Rates if a transition through these MW levels is needed.  Licensee shall attempt to accomplish this transition with as little impact on the Basic Ramping Rates as reasonably feasible. 

 

8.  Lower Butt Creek Monitoring.  In addition to maintaining gages at NF-2 and NF-70 as provided in Paragraph 6 discussed above, Licensee shall rehabilitate, as necessary, and maintain an existing gage located on Lower Butt Creek designated by Licensee as NF-9.  An approximate rating curve shall be maintained but the gage and the data collected at the gage shall not be required to meet USGS standards.  This gage shall be read each year on or about April 1, June 1, August 1 and October 1.  If it is determined during the course of the study conducted under the plan to be developed as outline below that the Lower Butt Creek weir is acting to block fish passage, then removal or modification of the existing weir shall be evaluated, and implementation of the removal or modification shall be completed within one year of the determination.  Within 12 months of license issuance, Licensee shall, in consultation with FS, FWS, SWRCB and CDFG, develop and submit to FERC for approval, a plan to monitor and assess aquatic habitat quality in Lower Butt Creek between Butt Valley Dam and the confluence with the North Fork Feather River.  This plan shall include evaluation of habitat quality at intervals of 3 to 5 years, depending on water-year magnitude and other appropriate factors.  If the Licensee, in consultation with FS, FWS, SWRCB and CDFG, concludes that habitat quality in Lower Butt Creek has degraded and that a pulse flow would provide a significant benefit, then Paragraph 4 above shall be implemented.

 

9.  Seneca and Belden Reach Habitat Monitoring.  Between years 10 and 12 following license issuance, Licensee shall initiate a cooperative aquatic monitoring program with FS, FWS, SWRCB, and CDFG, and sampling shall occur every two years over a six-year period, for a total of three sampling events.  The program shall include monitoring of fish populations and benthic macroinvertebrates in at least three sites in each reach.  Sampling may be deferred to the following year in the event of a Critically Dry year.  The Licensee shall provide results of the monitoring and any flow change recommendations to FERC, FS, FWS, SWRCB, CDFG and Parties.   Regardless of changes made to the magnitude and duration of a minimum monthly flows, the total volume of water that is allocated for stream flows in each year shall not change beyond the volume described in Tables A-1 and A-2. (Tom consider this addition)


Section 2.  Recreation River Flow Management

 

1.  Recreation River Flow Technical Review Group.  Licensee shall, within 6 months after license issuance, establish a Recreation River Flow Technical Review Group (TRG) for the purpose of consulting with Licensee in the design of recreation and resource river flow management and monitoring plans, review and evaluation of recreation and resource data, and in the development of possible recreation river flows in the Belden Reach.  The TRG shall be composed of FS, CDFG, SWRCB, FWS, NPS, Plumas County, and other Parties.  TRG meetings shall be open to the public and comments accepted.  The Licensee shall maintain, and make public, records of TRG meetings, and shall forward those records with any recommendations to the FS, SWRCB and FERC.  The Licensee shall establish communication protocols in consultation with the TRG to facilitate interaction between group members, which allow for open participation, expert consultation, and communication between all TRG participants.

 

2.  Recreation Flow Implementation Plan.  Licensee shall implement the following plan.

 

A.              Determination to Proceed with Test Flows:  Within 6 months after license issuance, Licensee shall convene the TRG to evaluate the existing available ecological information regarding recreation river flows.   Within six months of convening the TRG, Licensee shall forward to FS and SWRCB TRG recommendations as to whether or not unacceptable impacts on sociological or ecological resources will occur and if recreation test river flows as prescribed in Table B should be conducted in order to further evaluate the ecological and social effects of the Belden Reach Recreation River Flow. 

 

B.              Approvals to Proceed with Test Flows:  Any recommendation regarding recreation test river flows made by the TRG shall be submitted to the FS and SWRCB for review and approval.  The FS and SWRCB will consult with appropriate state and federal agencies, Licensee, tribal governments, and other interested Parties prior to approving the proposal as submitted or modified.  Following approval by the FS and the SWRCB, Licensee shall file the proposal with FERC for approval.

 

C.              Conducting Test Flows:  Upon approval from FERC, Licensee shall conduct recreation test river flows as prescribed in Table B for a 3-year period.

 

D.              Monitoring:  Licensee shall prepare and submit to the FS and SWRCB for their review and approval, concurrent with the TRG recommendation, a Belden Reach Recreation River Test Flow Evaluation Plan. Upon FS and SWRCB approval, Licensee shall file the plan with FERC for its approval.  The plan shall be designed to evaluate the effects of the recreation test river flow releases on ecological and social resources, and the metrics to be used in this determination.  Upon approval of the plan by FERC, Licensee shall implement the plan during the 3-year recreation test flow period.

 

E.        Determination of Continued Flows:  After the 3-year recreation test river flow period, Licensee shall convene the TRG to evaluate the existing available ecological and social information.  The TRG shall make a recommendation if recreation river flows should be continued in order to meet the river flow management for recreation objective.  Any continued recreation river flows shall not exceed the flows prescribed in Table B.

 

F.               Approval of Results of Determination of Continued Flows:  Any recommendation regarding continued recreation river flows made by the TRG shall be submitted to the FS and SWRCB for review and approval, as appropriate. The FS and SWRCB will consult with appropriate state and federal agencies, Licensee, tribal governments, and other interested Parties prior to approving the proposal as submitted or modified.  Following approval by the FS and the SWRCB, Licensee shall file the proposal with FERC for approval.

 

3. Recreation River Flows.  Subject to the conditions of Paragraph 3 above, Licensee shall implement the following recreation river flow schedule and other provisions presented in Table B, Belden Reach Recreation River Flow Schedule.

Table B – Belden Reach Recreation River Flow Schedule *

 

Month

Release amount in Cubic Feet per Second (cfs)

Release Days per Month

Boater Day Triggers

 

Dry/ Crit. Dry

Normal/ Wet

Crit. Dry

Start

Crit. Dry

Cap

Dry/ Normal/Wet

Start

Dry/ Normal/Wet

Cap

Wet & Normal /Dry

 

 

 

 

 

 

 

  Up

Down

July

650

750

1 day

1 day

1 day

2 days

130/180

90

Aug

650

750

1 day

1 day

1 day

2 days

160/200

100

Sep

650

750

1 day

1 day

1 day

2 days

160/200

100

Oct

650

750

1 day

1 day

1 day

2 days

160/200

100

*  Flow releases shall occur between the hours of 10 AM and 4 PM during Wet and Normal water years, and between the hours of 10 AM and 1 PM during Dry and Critically Dry years. 

(Tom will check with upper management regarding adjustments to triggers – Patti check with Jerry Mensch)

 

A.  Recreation Flow Calendar:  Licensee shall post an annual recreation flow calendar that schedules the initial recreation flow day per month, unless modified by the TRG.  Licensee shall conduct an annual planning meeting each year in March to discuss expected Water Year Type, results of monitoring efforts, Licensee maintenance needs that may conflict with recreation flow releases, and other relevant issues.

 

B.  Additional Flow Days:  The desired date of the month for the second flow will be recommended by the TRG based on evaluation of social and ecological considerations.

 

  1. Recreation River Flow Postponement: 

 

1.   Insufficient Electric Generation Reserves:  Licensee may postpone up to one weekend of recreation river flow releases in July and one weekend of recreation river flow releases in August based on projected insufficient electrical generation reserves (Stage II alert or its equivalent) as forecasted by the Independent System Operator (or its successor), provided Licensee gives 48-hours notice or as much advance notice as possible to the recreation community via the streamflow information sites specified below. 

 

    1. Emergencies:  In the event of an emergency (as defined in ___), Licensee may postpone any scheduled recreation river flow release.  Licensee shall provide as much notice as reasonably practicable under the circumstances. 

 

    1. Postponed Recreation River Flows:   Licensee shall reschedule postponed recreation river flow releases as recommended by the TRG.

 

D.  Triggers for Adjustments:  Licensee shall count observed boater use in boater days to determine whether recreation river flow release days should be added or subtracted.  One boater day is defined as use of the Belden Reach for boating by one person for any part of a given day.  Licensee shall collect boater use data on each scheduled recreation river flow release day.  One day of recreation river flow shall be added to the recreation river flow schedule the next year after 100% exceedance of the up-trigger is met for each day in a particular month of that year.  One day of recreation river flow shall be subtracted from the recreation river flow schedule for the next year after 100% exceedance of the down-trigger are not met in a particular month of that year.  Days shall be adjusted in the same month in which use is monitored.  Recreation river flow releases shall not decrease below 1 day per month and shall not exceed the Cap defined in Table B.  Recreation river flow release days shall not be added or subtracted during any period of recreation test river flows conducted pursuant to Paragraph 3(C) above.

 

  1. Ramping Rates:  In implementing recreation river flows, Licensee shall apply the Basic Ramping Rates as defined in Section 1.
  2. Streamflow Information.  Through a third party or other mechanism, Licensee shall make available on the Internet, a calendar that lists the dates of March pulse flow in the Seneca Reach and any scheduled releases into the Belden Reach.  The calendar shall state the timing and magnitude of the flow release.  The March release in the Seneca Reach will be posted by February 15 and the scheduled summer releases in the Belden Reach will be posted by May 15.  In the event that unscheduled flow releases are determined to be necessary, Licensee shall post an estimate of the release magnitude and duration of the flow.

 

Section 3.  Reservoir Operation

 

1.  Water Level Management.  To meet the ecological, cultural, aesthetic, social, economic, recreational and Project operational needs, Licensee shall operate Project reservoirs in accordance with the following provisions.  Lake level is defined as surface water elevation, expressed in PG&E datum and measured at Canyon Dam, Butt Valley Dam, and Belden Forebay Dam.  PG&E datum is 10.2 feet lower than the USGS datum.  All elevations noted within this Section are PG&E datum.

 

2.  Lake Almanor Water Levels.  Lake Almanor is a multi-season reservoir that typically fills from January through June and is then drafted from July through December.  Licensee shall operate Lake Almanor as follows:

 

A.  Wet and Normal Water Years:  Under Wet and Normal Water Year Types, Licensee shall operate Lake Almanor so that by May 31, the water surface elevation is at or above 4485.0 feet, corresponding to approximately 908,000 acre-feet (AF).  From June 1 through August 31, Licensee shall operate Lake Almanor so that the water surface elevation is at or above 4485.0 feet, corresponding to approximately 908,000 AF. 

 

B.  Dry Water Years:  Under Dry Water Year Types, Licensee shall operate Lake Almanor so that by May 31, the water surface elevation is at or above 4483.0 feet, corresponding to approximately 859,000 AF.  From June 1 through August 31, Licensee shall operate Lake Almanor so that the water surface elevation is at or above 4480.0, corresponding to approximately 787,000 AF.

 

C.  Critically Dry Water Years:  Under Critically Dry Water Year Types, the Licensee shall operate Lake Almanor so that by May 31, the water surface elevation is at or above 4482.0 feet, corresponding to approximately 835,000 AF.  From June 1 through August 31, Licensee shall operate Lake Almanor so that the water surface elevation is at or above 4480.0 feet, corresponding to approximately 787,000 AF.

 

3.  Butt Valley Reservoir Water Levels.  Under all Water Year Types, Licensee shall operate Butt Valley Reservoir so that minimum water surface elevations from June 1 through September 30 are at or above elevation 4120.0 feet, corresponding to approximately 32,000 AF and from October 1 through May 30, are at or above elevation 4115.0 feet, corresponding to approximately 24,500 AF.

 

4.  Belden Forebay Water Levels.  Under all Water Year Types, Licensee shall operate Belden Forebay so that the minimum water surface elevation is 2905.0 feet, corresponding to approximately 300 AF.

 

5.  Multiple Dry Water Years.  In the event of multiple, sequential Dry or Critically Dry Water Years, Licensee shall be allowed to decrease surface water elevations beyond those specified in Paragraphs 2 through 4.  By March 10, Licensee shall notify CDFG, FWS, SWRCB, FS, and Plumas County of Licensee’s drought concerns, and consult with representatives from CDFG, FWS, SWRCB, FS, and Plumas County to discuss operational concerns and plans by May 1 of the second or subsequent Dry or Critically Dry water years and the year following the end of the sequence of Dry and/or Critically Dry water years.  If agreement is reached between all Parties, implementation of an operational plan may begin as soon as documentation of the agreement is filed with FERC.  If unanimous agreement is not reached, Licensee shall submit the proposed plan to FERC, as well as both assenting and dissenting comments, should they exist, and request expedited approval. 

 

6.  Temporary Modifications.  Licensee may modify the minimum water surface elevations specified in this Section upon agreement between Licensee, SWRCB, CDFG, FWS, FS, and Plumas County for any of conditions listed below or, if a timely agreement is deemed not possible by Licensee, upon FERC approval of a proposal filed by Licensee.  Any agreement reached by the Parties noted above may be implemented as soon as documentation of the agreement is filed with FERC.  If Licensee provides a proposal to FERC for approval, such proposal shall contain any comments or recommendations received from SWRCB, FWS, CDF&G, FS and Plumas County.  Possible conditions that may warrant temporary modifications include:

 

A. The California Independent System Operator (ISO) (or its successor) or FERC determines that an extreme power shortage exists, and that drawing down Lake Almanor would help to alleviate the shortage.

 

B. There is a threat to life or damage to property, or law enforcement activity is required.

 

C. A natural disaster or “Act of God” occurs that threatens the integrity of the Project.

 

D. Substantial maintenance or repair work on Project facilities is required.

 

7.  Emergencies.  In the event of an Emergency, Licensee is authorized to take such immediate action as may be necessary to reduce the risk.

 

8.  Exercise of Licensee’s Water Rights.  Nothing in this Section is intended to (1) prevent or reduce Licensee’s ability to fully deliver water to the State of California and Western Canal Water District according to the January 17, 1986 agreement between the State of California, Western Canal Water District, and Licensee or (2) prevent or reduce Licensee’s ability to fully exercise its water rights for storage and direct diversion at its facilities.

 

9.  Maximum Water Surface Elevation.  In addition to the management procedures contained in this Section, Licensee shall take such reasonable actions as may be prudent to keep the water surface elevation in Lake Almanor from exceeding elevation 4494.0 feet unless a higher level is approved by FERC and the California Department of Water Resources, Division of Safety of Dams.

 

10.  Implementation of Water Surface Elevation Requirements.  Licensee shall implement the requirements of this Section 3 within six months after license issuance.

 

11.  Lake Almanor Information.  Licensee shall make available daily midnight storage and water surface elevation of Lake Almanor, rounded to the nearest 100 AF and tenth of a foot, respectively, delayed between approximately 7 and 10 days, on the Internet through a third party or other mechanism.

 

12.  Annual Meeting With Plumas County.  Licensee shall meet annually with a committee appointed by the Plumas County Board of Supervisors.    This meeting shall be held between March 15 and May 15 to allow Licensee to inform the committee about Almanor lake levels predicted to occur between May 1 and September 30.  In addition, should the provisions in Paragraph 8 be forecasted to occur, Licensee shall schedule an additional meeting with the committee within one month of the forecast.


Section 4. Water Year Type

 

Reservoir operating levels, Minimum Streamflows, pulse flow occurrence, and recreation flows may vary depending on the predicted magnitude of the annual runoff from the river basin.  Water years have been classified into four Water Year Types based on the California Department of Water Resources (DWR) records of annual inflow to Lake Oroville (Oroville) from 1930-1999: Wet, Normal, Dry, and Critically Dry (CD).  Licensee shall determine Water Year Type based on the predicted, unimpaired inflow to Oroville and spring snowmelt runoff forecasts provided by Licensee and DWR each month from January through May.  The Water Year Types are defined as follows:

 

Wet:       Greater than or equal to 5,679 thousand acre-feet (TAF) inflow to Oroville.

Normal:       Less than 5,679 TAF, but greater than or equal to 3,228 TAF inflow to Oroville.

Dry:       Less than 3,228 TAF, but greater than or equal to 2,505 TAF inflow to Oroville.

CD:              Less than 2,505 TAF inflow to Oroville.

 

Licensee shall make a forecast of the Water Year Type on or about January 10th, notify FS, CDFG, FWS, SWRCB, and Plumas County within 15 days, and operate for the remainder of that month and until the next forecast based on that January forecast.  New forecasts will be made on or about the tenth of February, March, April, and May after the snow surveys are completed, and operations will be changed as appropriate.  In making the forecast each month, average precipitation conditions will be assumed for the remainder of the water year.  The May forecast shall be used to establish the Water Year Type for the remaining months of the year and until the next January 10, when forecasting shall begin again.  Licensee shall provide notice to FERC, SWRCB, CDFG, FS, FWS, Plumas County, and other interested Parties of the final Water Year Type determination within 15 days of making the determination.

 


Section 5. Water Quality Monitoring Program

 

1.  Water Quality Monitoring.  The Licensee shall conduct an ongoing water quality monitoring program for Lake Almanor, Butt Valley Reservoir, and the Upper North Fork Feather River (UNFFR) to provide data to demonstrate the level of protection provided for beneficial uses of Project waters and allow for identification of any trends that may occur over time.

 

2.  Water Quality Study and Monitoring Plan               

A.  Selected Water Quality Monitoring:  The Licensee will conduct a special study to investigate the dissolved cadmium concentrations and specific conductance levels in waters of the UNFFR observed in 2002-2003.  This monitoring effort will be conducted at 20 specified locations (Tom: clarify which sites) throughout the upper watershed, and will include analysis of dissolved cadmium, total hardness and in situ parameters (temperature, dissolved oxygen (DO), pH, specific conductance, and turbidity).  Water quality monitoring will be conducted seasonally (spring, summer, and fall).

 

Water samples for dissolved cadmium analysis will be collected using the ultra clean field sampling techniques outlined in EPA Method 1669: Sampling Ambient Water for Trace Metals at EPA Water Quality Criteria Levels. Dissolved cadmium concentrations will be determined using EPA Method 1638: Determination of Trace Metals in Ambient Waters by Inductively Coupled Plasma – Mass Spectrometry

 

1.              Frequency:  At a minimum, this monitoring will be conducted in years 1 and 2 after license issuance.   This monitoring program may be modified or terminated if agreed to by the Licensee and the participants listed in Section 5, Paragraph 3.(D) that either cadmium or specific conductance levels consistently meet water quality objectives outlined in the Basin Plan and the USEPA California Toxics Rule (CTR) for Freshwater Aquatic Life and National Recommended Ambient Water Quality (NRAWQ) or that the sources are non-project related.

 

B.  Bacteriological Sampling:  The Licensee will conduct bacteriological monitoring (consistent with Basin Plan objectives for protection of the REC-1 beneficial uses) at a total of 10 locations within the UNFFR Project boundaries.  Sampling will include five annually rotating stations at Licensee-owned or managed recreation sites around Lake Almanor, three rotating stations at Licensee-owned or managed recreational sites around Butt Valley Reservoir, and two recreation sites on the Belden Reach of the UNFFR.  Sampling locations will be selected based on criteria that include: (a) swimming and other water contact recreation activities are known to occur in the area, and (b) there are sources for potential introduction of pathogens to the water column in the immediate vicinity. Five samples will be collected at each of the 10 sampling locations during the 30-day period that spans either the Independence Day Holiday (June-July) or the Labor Day Holiday (August-September), using the five samples in 30-days methodology.

 

2.      Frequency:  Bacteriological monitoring will be conducted annually for the first five (5) years after license issuance, then once every other year through the term of the license. The licensee and the participants listed in Section 5, Paragraph 3.(D) will determine selection of sampling locations for each upcoming field season.  Licensee shall consult with SWRCB for determination no later than May 31 of each designated sampling year  locations to be sampled.  This monitoring program may be modified or terminated if agreed to by the licensee and the participants listed in Section 5, Paragraph 3.(D)

 

C. Fish Tissue Bioaccumulation Screening: The licensee will monitor the potential bioaccumulation of silver, mercury, and PCBs in tissue samples collected from resident catchable-sized fish in waters of the UNFFR project.  Fish collected from Lake Almanor and Butt Valley will be analyzed for silver and mercury.  Fish collected from Belden Forebay will be analyzed for PCB’s, silver, and mercury. All fish collected will be within the legal “catchable” size range (minimum total length of 8 inches), with larger individuals targeted (i.e., total length of 10-12 inches and larger). The sampling strategy developed for Butt Valley and Belden will be consistent with the field methods developed in the relicensing process in coordination with the SWRCB’s Toxic Substances Monitoring Program, and are presented in Table 1.  Specific sampling strategies for Lake Almanor are listed in Table 2.   

 

1.    Frequency: The bioaccumulation fish tissue screening samples will be collected once every 5 years, beginning the first year after license issuance for FERC Project No. 2105. The monitoring will continue through the term of the new license.  During the term of the new license, the monitoring and reporting requirements may be modified or terminated after it is demonstrated to the satisfaction of the appropriate agencies listed in Section 3.4 that the given requirement is no longer necessary.

 

Table 1. Butt Valley and Belden Fish Tissue Bioaccumulation Screening - Sampling Protocols

 

Butt Valley Reservoir

Assessment of Silver and Mercury uptake in resident fish species.

Sample:            Smallmouth Bass            (9 individuals)

                    Brown Trout                    (6 individuals)         

                    Rainbow Trout          (6 individuals)

 

Belden Forebay

Assessment of Silver, Mercury and PCB uptake in resident fish species.

Sample:         

             A)            Smallmouth Bass            (6 individuals)

Rainbow Trout               (6 individuals)

Sacramento Sucker            (2 composites1 of 3 individuals)

or

             B)          Smallmouth Bass          (3 composites1of 3 individuals)

                    Rainbow Trout          (3 composites1 of 3 individuals)

                    Sacramento Sucker          (2 composites1 of 3 individuals)

 

1 Composites must fall within a 25% range in total length).

 

Table 2. Lake Almanor Fish Tissue Bioaccumulation Screening - Sampling Protocols

 

Lake Almanor

Assessment of Silver and Mercury uptake in resident fish species.

Sample:            Smallmouth Bass            (18 individuals)

                    Brown Trout1                    (9 individuals)         

                    Brown Bullhead          (2 composites2 of 3 individuals)

 

1 Sacramento Pikeminnow may be substituted, if brown trout cannot be reasonably obtained.

2 Composites must fall within a 25% range in total length).

 

D.  Canyon Dam Mitigation Measures Evaluation:  The adequacy and efficacy of the mitigation measure of the seasonal gate switching at the Canyon Dam Intake Tower, designed to reduce odor and suspended metals while maintaining appropriate water temperatures below Canyon Dam, will be monitored and evaluated. Profiles of in-situ parameters, including DO, temperature, pH, specific conductance, and turbidity profiles will be collected at 1-meter intervals at Canyon Dam in Lake Almanor during June, July, August, September, and October to monitor the onset of reduced conditions in the hypolimnion of Lake Almanor.  Hydrogen sulfide, iron, manganese, arsenic, and in situ parameters will be measured at the surface and bottom in Lake Almanor and at three locations in the Seneca Reach of the UNFFR during September and October.  Sediment samples will be analyzed for hydrogen sulfide, sulfate, iron, arsenic (Check with Charlie) and manganese and will be collected during the October event in Lake Almanor near Canyon Dam. 

 

The collection of the water quality and sediment sampleswill be coordinated with the mitigation measure by switching from the lower gate to the upper gate at the Canyon Dam Intake Tower.  The September sample will be taken prior to the gate switch and the October sample will be taken after the gate has been switched to ensure that the mitigation measure is effective. 

 

1.               Frequency: The monitoring will begin the first year after issuance of the new license.  At a minimum, monitoring will occur in six (6) water years, with two (2) occurrences in wet water years, two (2) occurrences in normal water years, and two (2) occurrences in dry/critically dry water years after issuance of the license for FERC Project No. 2105.  At the conclusion of the 6-year data collection effort, the program will be evaluated to determine the effectiveness of the mitigation measure.  Based on data provided, the licensee, in consultation with the participants listed in Section 3.4, shall make a determination on the effectiveness of the measure and the need (if any) for additional monitoring or development and implementation of alternative measures. 

 

E.  Lake Almanor Water Quality Monitoring Program:  Water quality sampling in Lake Almanor will be conducted to monitor long-term water quality trends in Lake Almanor. The monitoring program is designed to monitor the long-term effects observed in Lake Almanor and to determine if water quality parameters meet water quality objectives outlined in the Basin Plan and the USEPA CTR and NRAWQ criteria.  The licensee will collect water samples in Lake Almanor to be analyzed for general minerals, metals, nutrient, and petroleum products (Table 3).  In situ parameters (including DO, temperature, pH, specific conductance, and turbidity) will be collected at 1-meter intervals.  Secchi disc measurements will also be collected.  Samples will be collected at the surface and near the bottom at three (3) representative locations, one in the channel near the Canyon Dam intake structure; one in western lobe, and one in the eastern lobe.  

 

1.               FrequencyLake Almanor water quality monitoring will be conducted seasonally (spring summer, and fall) once every five (5) years beginning in Year 3 after license issuance, and will continue through the term of the license. The sampling frequency may be increased to once every three (3) for specific constituent(s) on Table 3 if the water quality monitoring results exhibit a statistically significant increasing trend over time, or if constituent’s concentrations that have been historically low, approach or exceed applicable criteria outlined in Section 2.5. During the term of the new license, the monitoring and reporting requirements may be modified or terminated if agreed to by the Licensee and the participants listed in Section 5, Paragraph 3(D)that the given requirement is no longer necessary or needs to be adjusted to more appropriately monitor for changes in project operations, regulatory mandates, or focus study needs.


 

Table 3.  Sampling Parameters for the Lake Almanor Water Quality Monitoring Program.

Total Metals1

Aluminum

 

Nutrients

Nitrate+Nitrite

 

Silver

 

 

Total Ammonia

 

Arsenic

 

 

Orthophosphate

 

Copper

 

 

Total Phosphorous

 

Cadmium

 

 

Total Organic Nitrogen

 

Iron

 

 

Total Kjeldahl Nitrogen

 

Manganese

 

 

Chlorophyll-a

 

Mercury

 

 

Total Organic Carbon

 

Nickel

 

 

 

 

Zinc

 

Petroleum

MTBE

 

 

 

Products

TPHG

Minerals

Calcium

 

 

BTEX (Surface only)

 

Magnesium

 

 

 

 

Sodium

 

In-Situ

Temperature

 

Potassium

 

 

Dissolved Oxygen

 

Chloride

 

 

pH

 

 

 

 

Specific Conductance

General

Hardness

 

 

Turbidity

 

Sulfate

 

 

Secchi Disk

 

Total Alkalinity

 

 

DO (% saturation)

 

Total Suspended Solids

 

 

 

 

1 Dissolved concentrations will be calculated and reported for cadmium, copper, lead, nickel, silver, and zinc as outlined in The Metals Translator: Guidance for Calculating a Total Recoverable Permit Limit from A Dissolved Criterion (EPA 823-B-96-007).

 

 

3. Reporting and Agency Consultations

 

A.              Within three months after acceptance of a new license, the Licensee shall develop, in consultation with the participants listed in Section 5, Paragraph 3(D), monitoring plans that provide specific details, analytical methods, sampling protocols and QA/QC procedures that will be used in the initial monitoring studies described in Section 2.0.  These water quality monitoring plans shall be submitted to the participants listed in Section 5, Paragraph 3(D)for review, and shall be filed with FERC as soon as practicable.

 

B.              The measures described in section 2.0 and clarified by plans developed according to section 3.1 will outline the monitoring efforts to be implemented in the first five years of the license.  This monitoring program is intended to be adaptive in nature and may be modified to more effectively focus on specific project related water quality conditions identified in project waters, if agreed to by the Licensee and the participants listed in Section 5, Paragraph 3(D). 

 

C.              The monitoring program shall begin on January 1 of the year following issuance of a New Project License. 

 

D.              The initial development and any future modification of these water quality monitoring plans shall be prepared in consultation with the signatories to this agreement, the State Water Resources Control Board and other parties who request involvement.  Licensee shall file the water quality monitoring plan and any future modification with the State Water Resources Control Board for approval.  Licensee shall thereafter submit the water quality monitoring plan to FERC for approval.

 

E.               The Licensee shall prepare an annual water quality report that contains elements consistent with reporting requirements from all plans under this article.  The annual report shall be provided to FERC and the participants listed in Section 5, Paragraph 3.(D) no later than March 15 of the following year.

 

F.               To facilitate the exchange of data and ensure dialogue between water quality and aquatic resources management agencies and participants listed in Section 5, Paragraph 3.(D), the Licensee shall convene a discussion group meeting once annually, following distribution of the annual water quality monitoring report.  Invitation to participate in the annual water quality discussion group shall include, at a minimum, those entities listed in Section 5, Paragraph 3.(D)The annual water quality meeting shall be noticed at the time of annual report distribution and shall provide a minimum of 30 days advance notice to invited participants.  The meeting shall occur between April 15 and April 28.


 

Section 6. Wildlife Habitat Enhancement

 

To enhance wildlife habitat, License shall prepare a Wildlife Habitat Enhancement Plan within 12 months of the date of issuance of the License.  The Plan shall be developed in consultation with the FS, FWS, CDFG, SWRCB, and Plumas County.  Enhancement effort will take place on Licensee owned lands on the shoreline of Lake Almanor from Last Chance Campground westward to approximately the northern edge of the flood control channel south of the Chester Airport.  This plan will benefit a variety of sensitive biological resources including rare plants, wetlands, streamside riparian communities, cultural resources and sensitive wildlife habitat.  The primary elements of the Plan shall be fencing and vehicle exclusion measures that will allow continued public foot access to the area. The Plan shall include an initial investment of $20,000 (2005 dollars) and an ongoing annual maintenance investment of $5,000 (2004 dollars).  The Plan shall include a provision for periodic review of enhancement efforts with the agencies noted above and shall include procedures for documenting initial and ongoing enhancement efforts.


Section 7.  Recreation

 

Licensee shall implement the following recreation facility, operation and maintenance, monitoring, plan review and revision, and interpretive and education programs measures over the term of the license as stipulated below.  Additional implementing details of these improvements shall be included in the draft UNFFR Recreation Resource Management Plan (RRMP), which shall be finalized within one year from FERC’s issuance of the new project license.

 

1.  Recreation Facilities Development Program

 

The Licensee shall implement the recreation facility enhancement measures described in this Section after license issuance and during the license term, based on monitoring triggers (standards) contained in the License Application Draft Recreation Resource Management Plan (RRMP).  The term “Accessible” below refers to ADA-accessibility improvements that shall be made in accordance with the ADAAG at the time the recreation facilities are implemented.

 

A. Initial License Issuance Recreation Enhancement Measures

 

Licensee shall initiate and complete implementation of the following recreation measures within three to ten years after license issuance.  Within the first year after license issuance, Licensee will meet with the Parties to develop a phased implementation schedule for the following initial implementation measures:

 

1. Lake Almanor

 

a. Last Chance Family and Group Campground

In accordance with ADAAG, Licensee shall modify two campsites and existing toilets and provide an access route leading to the nearby creek (150 feet).

b. Rocky Point Campground and Day Use Area

                                     i.     Licensee shall convert Loop 3 overflow camping area into a day use swim area containing a sand beach, swim delineator, parking area, and double vaulted restroom.

                                   ii.     Licensee shall relocate the 20, Loop 3 overflow campsites to the Loop 1 camp overflow area and provide a new double vaulted restroom at this location.

                                 iii.     Licensee shall provide a new entrance kiosk, three shower facilities (one for each loop), and bear-proof food lockers at each campsite (151) within the campground.

                                 iv.     Licensee shall replace older Klamath stoves (a low-style camp stove with a stovepipe).

                                   v.     Licensee shall revegetate disturbed areas caused by pedestrian or vehicle traffic.

                                 vi.     Licensee shall complete the following Accessibility improvements in accordance with ADAAG:

a)     Modify 10 campsites (four at Loop 1, three at Loop 2, and three at Loop 3). 

b)     Provide an Accessible access route to the water’s edge, swim beach, and swim delineator.

c)     Modify existing recreation facilities as needed, such as the camp library box, telephones, and the envelope box at the pay station and provide appropriate Accessible access routes.

d)     Modify existing water faucets near Accessible elements, such as toilets and campsites.

e)     Provide Accessible routes to two of the toilets (near entry and near site # 100)

f)Relocate the interior pay station directly across the road on a level, firm, and stable surface (Loop 2)

 

c. Forest Service Almanor Shoreline Facilities

Licensee shall provide the FS 40% of the costs to reconstruct the Almanor Family Campground, Almanor Group Campground, and Almanor Beach up to a maximum of five million dollars (2005$) over a ten-year period after license issuance.  These improvements shall include expansion of the existing sand beach and expansion of the parking area to accommodate 10 to 20 additional vehicles. The FS shall be responsible for the design and reconstruction of these facilities, but shall obtain Licensee’s approval for final design.  After reconstruction, the facilities shall be 100 percent owned by the FS and any further major reconstruction shall be the responsibility of the FS, including necessary reconstructions resulting from fires or other causes.   

 

In the event that the FS is unable to raise any of the necessary funds for their cost share portion within the first ten years, then Licensee shall construct the expansion of the Almanor Beach and parking area and construct the third 28-campsite unit of the East Shore Family Campground in accordance with the RRMP trigger.  Licensee will have no further cost financial obligation to the FS for recreation facilities.

 

 d.  East Shore Group Camp Area

                                      i.    Licensee shall convert the existing East Shore Day Use Area to a group reservation camp area that shall accommodate one group of 16 RVs or two groups of eight RVs. The entrance road shall be widened and internal road circulation shall be improved to accommodate RVs.

                                    ii.    Licensee shall provide one Accessible parking space near the toilet and an Accessible access route to the trash receptacles.

                                  iii.    Licensee shall provide bear-proof food lockers at each site (16 sites), a trail down to the shoreline, including switchbacks and stairs, and erosion control measures.

 

 

e.  North Shore Public Boat Launch

                                i.     Licensee shall provide a new and expanded public boat launching facility at North Shore Campground. This facility shall include paved parking for 40 trailers and 12 single vehicles, a double vaulted restroom, and a loading float.  In addition, Licensee shall dredge along the existing submerged river channel to provide an approximately 1,000-ft long, 50-ft wide, and 6-ft deep boat channel that provides boat access to approximately the 4,480-foot elevation (PG&E datum).

 

                              ii.     Licensee shall provide public access to the boat launch facility along an abandoned portion of Highway 89 located along the north side of the campground to reduce traffic impacts to the campground.

 

                            iii.     Licensee shall relocate 22 campsites that will be impacted by the expanded boat launch facility.

 

f.  Stover Ranch Day Use Area The Licensee shall develop the Stover Ranch Day Use Area to provide improved Lake Almanor shoreline access for Chester residents.  This day use area shall include gravel parking for 10 to 20 vehicles, a double-vault toilet, four picnic tables, a trail to the shoreline, and an interpretive sign.  In addition, one RV site shall be constructed to accommodate a new Lake Almanor caretaker. The development of the Stove Ranch improvement shall be coordinate with Chester PUD and Chester Recreation and Parks District.

 

g. Marvin Alexander Beach

The Licensee shall assume management responsibility of the PSEA Swim Beach and expand and improve the existing sandy beach area. In addition, Licensee shall provide a gravel parking area, replace the two single-vault toilets, water faucet, ten picnic tables, and provide a swim delineator. 

 

h.  Canyon Dam Day Use Area

i.       The Licensee shall provide a sandy beach area above the high water level (4494 foot elevation, PG&E datum); swim area delineator, an informational kiosk, improved circulation, and eight new Accessible picnic tables at the Canyon Dam Day Use Area.

 

ii.      The Licensee shall modify eight existing picnic tables, provide an Accessible parking space, and provide an Accessible route to the swim beach in accordance with ADAAG. 

 

iii.    The area adjacent to the Canyon Dam Day Use Area shall be reserved for potential future recreation development if this area is not developed for a group reservation camp area.

 

i.  “East Shore” Day Use Area.  Licensee shall designate a swimming area in the existing cove adjacent to the proposed new East Shore Campground.  This day use area shall contain up to five picnic tables, shoreline access trails, a vaulted restroom, and parking for 10 to 20 vehicles.

 

j.  Westwood Beach

The Licensee shall provide a 10-vehicle space parking area, six picnic tables, an Accessible sealed vault toilet, a sandy beach, a swim delineator, and signage at the Westwood Beach Area.  Licensee shall also provide erosion control measures to protect the shoreline from wind caused wave action.

 

k.  Stumpy Beach

The Licensee shall provide five picnic tables, an Accessible sealed vault toilet, signage, a sandy beach above the high water level (4494 foot elevation, PG&E datum), and a swim delineator at Stumpy Beach.  Eight to 10 parking spaces parallel to Highway 147 shall be provided with trails connecting to the beach’s northern and southern portions. The southern trail shall be Accessible.  In addition, Licensee shall provide four benches for viewing Lake Almanor and the surrounding mountains at the roadside parking area.  Licensee shall also provide erosion control measures to protect the shoreline from wind caused wave action.

 

l.  Catfish Beach

If Licensee is able to obtain an easement across private lands, Licensee shall provide public road access and a restroom to the Catfish beach area. If these improvements are implemented, Licensee shall monitor and maintain this site either through arrangements with the North Shore Campground managers, the Stover Ranch caretaker, or other appropriate means.

 

m.  Almanor Scenic Overlook

Licensee shall provide an Accessible parking space and route to the existing Accessible restroom at the overlook and conduct vegetative brushing and clearing, as needed, to maintain views of Lake Almanor, Mt. Lassen and the Canyon Dam.

 

n.  Southwest Shoreline Access Zone

The Licensee, in consultation with the FS, shall provide for shoreline access at existing informally used areas along Lake Almanor’s southwest shoreline between Prattville and Canyon Dam. These access areas shall provide vehicle access at or near the 4,494' elevation (PG&E Datum) and serve as pedestrian access areas to the adjacent shoreline.  The Licensee shall provide gravel parking areas barriers, signs, gravel access roads, and, if appropriate, restrooms at these access areas.  Licensee shall close and rehabilitate other user-created vehicular and OHV access routes along the southwest shoreline in consultation with the FS. 

 

2. Butt Valley Reservoir

 

a. Powerhouse Trails

Licensee shall provide two improved angler access trails to two locations near the powerhouse.  One approximately 200-foot, non-paved trail shall be constructed from the existing gravel parking area next to the powerhouse down the steep slope east of the powerhouse to the levee below.  If needed, stairs shall be constructed at this location.  The second powerhouse trail shall be Accessible (compact base rock) and originate from one of several pullouts along the Prattville-Butt Valley Road near the powerhouse and extend approximately 700 feet to the eastern shoreline of the inlet near the levee.  A new trailhead parking area with barriers shall be developed for this trail.

 

b. Ponderosa Flat Campground

Licensee shall provide an outdoor shower at Ponderosa Flat Campground.  In addition, in accordance with current ADAAG, Licensee shall make the following improvements:

 

       i.     Modify four campsites and retrofit the existing designated Accessible campsites in the campground to be Accessible.  All of the elements provided in the campsite including the picnic table, fire ring, cooking grill, tent or RV area, and water faucet shall be retrofitted to be Accessible. 

 

     ii.     Replace the vault toilets in the overflow area with a new Accessible restroom and modify all other existing designated Accessible toilets to meet current ADAAG. Provide an Accessible access route for the restroom near Site 45 and one Accessible parking space located near the toilets.

 

   iii.     Provide a swimming area at the campground that is Accessible with a sandy beach above the high water elevation (___ foot, PG&E Datum) and swim delineator.

 

   iv.     Provide a new Accessible fishing access trail and Accessible pier or platform north of the overflow area.

 

c.  Cool Springs Campground

Licensee shall provide an outdoor shower at Cool Springs Campground.  In addition, Licensee shall provide one new Accessible campsite. All of the elements within these campsites including the picnic table, fire ring, cooking grill, tent or RV area, and water faucet shall be made Accessible.  Water faucets near Accessible elements shall also be appropriately retrofitted to be Accessible.

 

d.  Alder Creek Boat Launch Improvements

Licensee shall expand the existing Alder Creek Boat Launch parking area to accommodate 10 to 20 additional vehicles with trailers and to improve circulation.   In addition, Licensee shall modify the boat launch to be Accessible and provide one Accessible parking space near the toilet.

 

3.  Belden Forebay

 

a. Belden Forebay Access

                                i.     Licensee shall provide a car-top boat launch, a seasonal portable toilet, and parking area for 10 to 20 vehicles at the Forebay existing undeveloped parking area, which also serves as trailhead for the North Fork Fishing Trail. The Forebay shoreline shall also be improved to provide access for launching small watercraft to the Forebay. 

                              ii.     Licensee shall post signage referring to existing Plumas County ordinance that limits boat horsepower to 10 hp and speeds to 5 mph on small reservoirs such as Belden Forebay.   Belden Forebay shall be managed based on a county ordinance (similar to Rock Creek and Cresta Reservoirs) that provides for no swimming or boating within 0.25 mile of Belden Dam and no swimming or boating at night.

 

bNorth Fork Fishing Trail.  Licensee shall improve the North Fork Fishing Trail from the Belden Forebay parking area to the upstream side of the Caribou Powerhouse 1.  Improvements shall include retrofitting the existing metal trail decking and railing at the powerhouse above the turbine outlets to provide enhanced access and safety, providing a wider, even trail base along the chain-link fencing at the powerhouse yard and trail signage.

 

4.     Bypass River Reaches

 

a.     Belden Reach River Access.  Licensee shall provide a river access point at the upstream end of the Belden Reach located at the spoil pile area.  This access location shall include a seasonal portable toilet and a dumpster located over a concrete pad.

 

b.     Belden Reach Trails.   Licensee shall provide and maintain four trails to the Belden Reach shoreline from existing informal parking areas where public access can be provided in a safe manner.

 

 c.  Belden Rest Stop.  Licensee shall relocate the existing picnic tables and grills to the lower level and disperse them within the area from the Eby Stamp Mill to the gazebo near the creek. Two of the tables shall be replaced with Accessible tables and Accessible routes shall be developed to the gazebo, overlook area next to the creek, and the Eby Stamp Mill historical features.  Licensee shall provide improved interpretation and education (I&E) elements at the rest stop and erosion control measures on the slope between the parking lot and upper picnic area. 

d.  FS River Access.  Licensee shall provide up to $125,000 (2005$) to the FS to design and construct a non-Project, FS owned and operated river access facility on the Belden Reach.  The FS shall make a good faith effort to obtain matching funds to help offset the cost of this facility as described in Appendix B.

 

2.  Future Recreation Enhancement Measures

 

The Licensee anticipates the following facility improvements will be needed over the term of the Project license period.  Implementation of these measure are contingent on reaching the monitoring triggers (standards) contained in the RRMP over the license term. 

 

A.   Lake Almanor

 

1. Camp Connery Reservation Group Camp Area

a. Licensee shall provide a new group camping reservation area adjacent to the existing Camp Connery Group Campground.  This area shall either provide space for two groups of eight RVs or one group of 16 RVs.  A centrally located bear-proof food facility and two indoor showers shall be provided at this group area.

 

b. Licensee shall repair and resurface the existing access road.

 

c. Licensee shall provide an Accessible parking space and cabin with Accessible restroom and retrofit the existing telephone position and water faucet features to meet the ADAAG.

 

 

2.  East Shore Family Campground.  

Licensee shall provide a new campground on Licensee land along the east shore of Lake Almanor in two phases with 63 new, tent and RV campsites total.  This campground shall contain bear-proof food lockers, two restrooms/indoor showers, approximately 20 boat moorage slips/buoys, and a camp host site.

 

 

B.  Butt Valley Reservoir

 

1.  Ponderosa Flat Campground Licensee shall provide approximately 10 to 20 new primitive tent campsites (likely to the north of the current overflow area), and a new group camp area in the existing overflow area.

 

 

3.  Operations and Maintenance Program

 

A. Licensee shall be responsible for operation and maintenance of Licensee-owned Project recreation facilities and Lassen National Forest Service’s Lake Almanor day and overnight recreation facilities that shall be incorporated into the Project boundary reconstruction.  These FS facilities include Canyon Dam Boat Launch and Day Use Area, Dyer View Day Use Area, Almanor Campground, Almanor Group Campground, Almanor Beach, and Almanor Boat Ramp.  Licensee shall assume operation and maintenance of a FS recreation facility no sooner than five years after license issuance and only if the FS completes reconstruction of the facility.  To offset operation, maintenance, construction, and reconstruction costs, Licensee, in accordance with FERC regulations, shall collect and retain, without FS objection, 100% of all user fees collected at all recreation facilities that Licensee operates and maintains. 

 

4.  Fish Planting

 

A.  Licensee shall, if requested by the CDFG and within thirty (30) days following the submission of a statement of costs subject to audit by Licensee, pay for the stocking of 5000 pounds of trout per calendar year by the CDFG in the waters of the North Fork Feather River between its confluence with the East Branch North Fork Feather River and the Belden Diversion Dam.  The cost to Licensee of such trout shall not exceed the then prevailing average cost to the CDFG for the production and distribution of 5,000 pounds of catchable trout.  The size, numbers and species of trout to be planted, the frequency of planting, and the planting sites shall be as determined by the CDFG.

 

B. Licensee shall, if requested by the CDFG and within thirty (30) days following the submission of a statement of costs subject to audit by Licensee, contribute funds to expand CDFG’s existing fish planting program in Lake Almanor above the average annual fish planting level expended by the CDFG in the previous five years (years 1999 to 2003).  The size, numbers and species of trout to be planted, the frequency of planting, and the planting sites shall be as determined by the CDFG.

 

C. Licensee shall contribute up to a maximum of $50,000 (2004$) per year for the term of the license for items 1 and 2 above.  

 

5.  Interpretation and Education (I&E) Program

 

Within the first five years of the new license, Licensee shall develop an I&E plan for the Project in consultation with the FS, Plumas County, and other Parties. The I&E Program shall provide enhanced recreation experiences and encourage appropriate resource protection, cooperative, and safe behaviors from Project visitors. The I&E Program shall include themes, media, media design, prioritized sites, and prioritized services.  Potential themes include fish and wildlife resources, volcanic history, hydropower, Native American cultures, pioneers, recreation activities and facilities available in the Project area, and boating hazards.  The program shall include improvements such as interpretive or informational signs, kiosks, reservoir boating safety and hazard information signs and brochures, and informational signs describing recreation facilities and opportunities in the area.  The I&E program improvements shall be developed at Project Licensee and FS recreation sites that are to be included in the Project.  The program shall also identify funding partnership arrangements with the FS and other interested parties, and contain a schedule for implementation.  

 

As part of the I&E program, Licensee shall prepare a Lake Almanor bathymetry map within one year of license issuance.  This map shall be made available in pamphlet form to boaters and posted at public boat ramps.

 

 6. Recreation Monitoring Program

 

Licensee shall adopt a Limits-of-Acceptable Change (LAC)-based monitoring approach included in the RRMP.  This approach includes monitoring indicators and standards (triggers) that shall initiate management action to help maintain desired recreation experiences and resource conditions at Project recreation areas over the license term. Specific recreation areas to be monitored include the water surface of Project reservoirs, Licensee and FS recreation facilities, and shoreline areas within the Project boundary. Depending on the availability, ease, and costs of collecting monitoring indicator data, monitoring is scheduled to occur annually, every six years, or every 12 years. More in-depth monitoring, such as visitor questionnaire surveys and general assessment of regional recreation trends, shall occur on 12-year intervals. Periodic monitoring reports shall be prepared every six years in conjunction with FERC Form 80 recreation facility and use monitoring requirements.

 

As part of the monitoring program, Licensee shall conduct annual recreation planning and coordination meetings with other recreation providers in the Project area to discuss recreation resource management decisions for the Project area, implementation of project recreation enhancements, recreation monitoring results, and other pertinent license related recreation issues that may arise over the license term.

 

If recreation test flows are conducted, Licensee, in consultation with Parties, shall develop a study plan to monitor recreation use during the three-year test flow period and produce a report on monitoring results.

 

7.  Resource Integration and Coordination Program

 

Licensee shall hold annual meetings to integrate recreation resource needs with other resource management needs, such as cultural, wildlife, water quality, and aquatic resources.  These meetings shall be held over the term of the license with Parties and other interested individuals who have expressed interest in attending these meetings.

 

8.  Recreation Resource Management Plan (RRMP) Review and Revision Program

 

Over the term of the License, unforeseen recreation needs, changes in visitor preferences and attitudes, and new recreation technologies will likely occur.  The frequency with which the RRMP is revised or updated by Licensee shall depend on significant changes to existing conditions, monitoring results, and management responses made over time. The frequency of RRMP updates shall not exceed 12 years and shall be based on consultation with Parties during monitoring and coordination meetings and through other inputs. 

 

 Section 8.  Land Management and Visual Resource Protection

 

The Licensee shall implement the following measures at existing facilities within the 2 years of license issuance or as otherwise noted:

 

A.    Paint the metal siding and roof of the hoist house on the Prattville Intake Structure a dark green color similar to the current color;

 

B.    Plant sufficient evergreen trees between the existing Prattville maintenance buildings and the shoreline to reduce visual domination of the buildings on the shoreline area.  Monitor and oversee tree survival to ensure successful establishment through the first three summers. 

 

C.    Re-grade the Oak Flat spoil piles along Caribou Road to create a more natural rolling topography along the roadside and where possible move spoil materials farther from the road.  Establish native plantings where possible between the road and the spoil piles to help screen the active use areas from passing motorists. 

 

D.    In consultation with the Plumas National Forest, prepare a plan to annually apply dust palliatives or other measures, including regular grading, to help minimize dust emissions and improve the lower coupled segment of the Butt Valley-Caribou Road.

 

E.     At the Belden Powerhouse, consult with the Plumas National Forest on color selection when maintenance or repair work is scheduled on the Belden Powerhouse penstocks, surge chamber, or other powerhouse facilities to reduce visual contrast as seen from SR 70.

 

F.     At Caribou Village, maintain the exterior and landscaping of the old clubhouse facility and grounds to preserve the historic features and character of the facility.  Consult with the Plumas National Forest when maintenance or repair activities are to take place to help preserve, as practical, the historic and visual appeal of the village landscaping and structures (This section may be appropriate for section B of settlement agreement).

 

G.    The Lake Almanor Shoreline Management Plan (SMP) shall be implemented within 30 days after license issuance and Licensee shall meet with the Parties at minimum every 10 years to discuss the need to update the SMP.  The need to update the SMP sooner can also be raised and discussed during the annual land use meetings with the Parties.

 

H.      Conduct annual meeting with the Forest Service and Plumas County to coordinating ongoing project related land management activities including recreation management and use, fire suppression and related forest health activities, and the planning for commercial, residential and industrial developments. 

 

    
APPENDIX B:  Measures Agreed to Among the Parties But Not to be Included in New Project License, Section 4(e) Conditions, or Other Mandatory License Conditions

 

Plumas County Lake Almanor Water Quality Monitoring and Protection

 

1. Goals

The intent of this article is to monitor and protect the water quality of Lake Almanor for the use and enjoyment of the public and for aquatic resources.

 

2. Water Quality Monitoring Plan               

A. Within 90 days after issuance of a new license, a water quality monitoring plan shall be developed by Plumas County and the Licensee, in consultation with the California State Water Resources Control Board, the U.S. Fish and Wildlife Service, the U.S. Forest Service, California Department of Fish and Game, California Department of Water Resources (Collaborative Water Quality Monitoring Group). 

 

3. Water Quality Monitoring Plan Implementation

A. Plumas County shall contract with the California Department of Water Resources or other party acceptable to the collaborative water quality monitoring group, to implement the water quality monitoring plan and prepare an annual report.  The annual report of the water quality sampling of Lake Almanor Water shall be submitted by January 31 of the following year.

 

4. Annual Meeting

 

A. Between April 15 and April 28 the Licensee shall convene a meeting of signatories to this agreement, the State Water Resources Control Board and other parties who request involvementto review the results of the Lake Almanor water quality monitoring program and revise the monitoring plan as necessary.  

 

B. If adverse water quality effects are identified in Lake Almanor, Plumas County and the Licensee shall consult with the Collaborative Water Quality Monitoring Group to determine the reason for the adverse water quality.  If the adverse water quality is shown to be a result of the Licensee’s project operations or maintenance, the Licensee’s shall develop and implement a plan and/or mitigation measure for protecting the water quality in Lake Almanor. The plan and/or mitigation measures shall be developed in consultation with the collaborative group. If the adverse water quality is shown to be a result of non-project land use practices, Plumas County zoning practices, or Plumas County permitting practices, the Plumas County shall develop and implement a plan and/or mitigation measure for protecting the water quality in Lake Almanor. The plan and/or mitigation measures shall be developed in consultation with the collaborative group.  

 

 

5. Funding

 

A. The Licensee and Plumas County shall contribute up to $20,000 each (2004 dollars) annually in matching funds to implement water quality sampling in Lake Almanor in accordance with   the Settlement Agreement Covering Applications 28468 of Plumas County and 30414, 30257 and 30258 of PG&E Pending Before the State Water Resources Control Board (Dated 7/30/02).  Funding for water quality sampling of Lake Almanor outlined in Sections 2.2 and 2.5 of Appendix A will be part of the matching funds outlined in this agreement.  The Licensee and Plumas County will coordinate and consolidate water quality sampling in Lake Almanor with the monitoring program outlined in Appendix A, wherever possible. 

 

B. Plumas County and the Licensee recognize the California Department of Water Resources (DWR) has monitored water quality in Lake Almanor and its tributaries since 1986.  The preference of Plumas County and the Licensee is that DWR continue their current sampling program, utilizing a significant portion of the settlement agreement matching fund monies to assist in funding DWR’s total sampling effort.  Plumas County and the Licensee will request the DWR to contribute sampling and analytical services. 

 


RECREATION PART B

 

1.  Outside Funding for Belden Reach River Access.  For the purposes of improving and enhancing public recreation, the FS shall within two years following signature of this agreement, request matching funding for river access facilities proposed pursuant to Section __ of Appendix A of the Settlement from the California Department of Boating and Waterways and/or other appropriate sources.   All Parties shall support and actively work to seek approval for the request from the California Department of Boating and Waterways (or other appropriate organization). 

 

2.  Plumas County Ordinance.  For the preservation and improvement of ecological, cultural and recreation resources at Lake Almanor, the 2105 Committee shall within one year following signature of this agreement, request the Plumas County Board of Supervisors to pass a county ordinance which prohibits the travel of motorized wheel or tracked vehicles at Lake Almanor below the 4500 foot contour elevation (PG&E datum) except in designated areas.  All Parties shall support and actively work to seek the Plumas County Board of Supervisor’s approval of the request. 

 

3.  Plumas County Sheriff Shoreline Patrol.  Upon passage of the Plumas County ordinance referenced in Paragraph 2 above, Licensee shall provide up to $25,000 per year (2004$) for the term of the license to Plumas County to be used for Plumas County Sheriff patrols and enforcement in the Project shoreline areas.

 

By the end of each fiscal year (June 30), Plumas County shall provide Licensee a summary of the previous year expenditures and enforcement activities from these funds and the planned expenditures and patrol activities in the Project shoreline area for the upcoming year.

 

4.  River Ranger.  The licensee shall provide to the Plumas National Forest $25,000 each year (2004$), by March 1, to assist in funding a “River Ranger” position.  The purpose of this position will be to provide additional light maintenance, visitor information/assistance, and user safety and law enforcement presence in project’s bypassed river reaches.

 

The FS shall provide Licensee by January 31 a written summary of the previous year expenditures and ranger activities and the current year planned expenditures and ranger activities.

 

5.  Lake Almanor Recreation Trail (LART) Southeast Shore Extensions In addition to the trail easement previously provided to Plumas County in the July 30, 2002 Agreement between Plumas County and Licensee, Licensee shall contribute matching funds up to $300,000 (2005$) to Plumas County for County construction of a non-motorized recreation trail across Licensee-owned lands on the southeast side of Lake Almanor as a continuation of the Lake Almanor Recreation Trail.  At Plumas County expense and at no expense to Licensee, the trail shall be maintained including, but not limited to, any repairs for damages that may be caused by Licensee raising and lowering the water in Lake Almanor.  The Lake Almanor Recreation Trail and associated facilities in its entirety, now and in the future, shall not be considered a project or part of a project related to or a part of, Licensee’s Upper North Fork Feather River Project 2105 and Licensee shall not be required to perform or contribute in anyway to the operation and maintenance of the trail now or in the future.

 

Plumas County shall, to the extent it may legally do so, agree to indemnify Licensee against and to hold Licensee harmless from any loss or damage to any property, or injury to or death of any person whomever, proximately caused in whole or in part by any negligence of Plumas County or its contractors or by any acts for which Plumas County or its contractors are liable without fault in the exercise of the rights herein granted, save and excepting to the extent that such loss, damage, injury or death is proximately caused in whole or in part by any negligence of Licensee or its contractors, or by any acts for which Licensee or its contractors are liable without fault. 

 

6.  TRG:  (The TRG evaluation of potential recreation flow effects and recommendations should be consistent with existing resource management plans.)