Upper North Fork Feather River Project
FERC No. 2105
Relicensing Collaborative Protocols
Subject of Collaborative
The subject of the collaborative process is the Upper North Fork Feather River Project.
Goal of Collaborative
On October 22, 2002, PG&E filed an application for new license for the Upper North Fork Feather River Project. The current license will expire on October 31, 2004. PG&E is following an “enhanced traditional” process for obtaining a new license. The “enhanced traditional process” is sufficiently flexible to allow interested parties to enter into settlement negotiations for resolution of outstanding license issues. With settlement in mind, PG&E and other interested parties have entered into a collaborative process. Participants will seek to reach a settlement agreement supported by sound scientific data, which resolves all relevant resource issues. The agreement will serve as the basis for support for issuance of a new license for the Upper North Fork Feather River Project by the Federal Energy Regulatory Commission. It is the intent of the participants that such settlement agreement will be used as the basis for all regulatory approvals needed for license issuance.
Participation
a. Collaborative Participants: The initial participants, most of whom attended the first collaborative meeting on October 28, 2002, are: PG&E, U.S. Forest Service, California Department of Fish and Game, California State Water Resources Control Board (SWRCB), California Waterfowl Association, Honey Lake Maidu, National Park Service, 2105 Committee, Mountain Meadows Conservancy, Forest Community Research, Plumas County, Dyer Mountain Associates, American Whitewater, California Sportfishing Protection Alliance, Chico Paddleheads and Shasta Paddlers.
b. Additional Participants and Public Involvement: Collaborative meetings will be publicly noticed and open to additional participants that may include agencies, Tribes or members of the public. Each additional participant will be asked to respect these protocols. Continued participation after such request will be considered acceptance of such protocols.
c. Attendance at Meetings: Participants will make a good faith effort to have a representative attend or teleconference with every meeting of the full collaborative or any subgroup of which the participant is a member. If a participant is unable to attend a meeting, the participant will to the extent possible, provide input prior to the meeting.
d. Participant Representation: Each participant will identify one primary representative in any given action or decision by the collaborative. The representative will have the necessary authority to speak on behalf of the participant. Each representative will keep its agency, organization, or constituency informed of the status and actions of the collaborative. Agencies with statutory or regulatory authorities preserve such authorities while participating fully in the discussions. Although attendance in person is encouraged, a conference call connection will be made available for each meeting for those that cannot attend.
e. SWRCB Participation: Notwithstanding any other provision to the contrary in these protocols, the following describes SWRCB participation in the collaborative process. It is the policy of the SWRCB to promote voluntary settlements among the parties to adjudicative proceedings before the SWRCB, and to assist applicants and members of the public by providing them with information concerning requirements applicable to SWRCB approvals. The SWRCB will participate in the collaborative process in order to help guide the parties towards a settlement that is likely to obtain the necessary regulatory approvals. Participants recognize that the requirements for the SWRCB to avoid bias, prejudice, or interest in contested matters subject to its approval prevent the SWRCB from making any prior commitment as to the outcome of the SWRCB’s decision-making process. The participants anticipate, however, that a settlement agreement, or relevant portions thereof, is likely to form the basis of approval by the SWRCB if the settlement agreement, or relevant portions thereof, takes into account any concerns raised as part of the collaborative process by SWRCB staff, and all other participants approve the settlement agreement. See Attachment A for the SWRCB Collaborative Process Participation Statement.
f. Compliance: Each participant will abide by these protocols.
Personal Conduct
a. Respect: Participants will be afforded an opportunity to present their viewpoints. Participants will listen to and be respectful of one another.
b. Preparation: Each participant will actively prepare for each meeting. A participant will distribute in a timely manner any information it commits to provide, review all other information relevant to the agenda, and be prepared to effectively discuss each topic on the agenda.
c. Commitments: Each participant will keep commitments.
d. Disagreements: All participants will seek mutual gain as the solution to each disagreement.
e. Communicating Interests: Every participant will communicate interests on topics under consideration.
f. Negotiation: Participants who disagree with decisions, topics discussed or direction taken by the collaborative will not “try the proposal in the media” outside the collaborative process as a means of influencing decisions or discrediting collaborative participants.
g. Advice and Direction: Participants may seek advice or direction from constituents or subject matter specialists within their organization on topics under discussion and keep constituents advised of topics discussed and decisions that have been reached.
Facilitation
a. Facilitator: The Participants will select an independent facilitator, to be paid for by PG&E.
b. Role of Facilitator: The facilitator will actively manage the collaborative process in a neutral manner. The facilitator will assist in the development of draft agendas, chair full collaborative and subgroup discussions as appropriate, provide process oversights, and work to build consensus to meet the goal of the collaborative.
Procedures
a. General Process: The collaborative will focus on interests rather than positions and will work toward a settlement agreement that satisfies the interests of all participants. The general process the collaborative will follow will be: (1) set goals and protocols, (2) identify interests and needs, (3) gather and evaluate adequate scientific information on which to make decisions, (4) generate multiple options, and (5) reach consensus on a settlement agreement
b. Meeting Notices and Locations: The facilitator will send out meeting notices. The collaborative will designate a list of agreed upon meeting locations. PG&E will make arrangements for meeting locations at places on that list.
c. Records: The collaborative will keep a written record of all meetings. These notes will be prepared to concisely identify all major topics of discussion, decisions reached, open issues, action items and schedule. Flip charts will be used during meetings to create a preliminary record. The participants will review and confirm the accuracy of that preliminary record before the conclusion of the meeting. PG&E and Plumas County will provide meeting notes to the facilitator to assist her in the preparation of the meeting summary for distribution to the full collaborative for review and approval. Statements or comments attributed to a particular member or organization should not be included in meeting notes unless a member or organization specifically requests that their organizations comments be reflected in the notes. Meeting notes and other documents prepared by the collaborative may be distributed by collaborative members to their constituencies after revisions suggested by collaborative members have been incorporated into the documents and the collaborative has agreed that the meeting notes or document in question is final or complete. Draft meeting notes will be distributed to collaborative members within seven days following a meeting. Participants who wish to comment on meeting notes should do so within seven days following receipt of the notes.
c. Caucus: A participant may call for a caucus at any time during any full collaborative or subgroup meeting.
d. Halting the Collaborative: The collaborative may be halted upon consensus of the participants. The departure of one or more participants does not halt the collaborative if the remaining participants choose by consensus to continue. If PG&E withdraws from the collaborative, PG&E will request the FERC to not proceed with the traditional process for a minimum of 60 days to allow participants to prepare to participate in that process.
e. Subgroups: The collaborative may form subgroup/s to address specific issues. This procedure may be appropriate for issues that are of limited interest to the full collaborative, or issues that warrant in-depth discussion and subsequent recommendation to the full collaborative.
f. Meeting Agendas: Unless otherwise agreed, each full or subgroup meeting will be conducted pursuant to a written agenda, which identifies specific topics, the presenter and their affiliation, allocated times for discussion, purpose of discussion (information or action). The written agenda, together with any material requiring review or preparation for the meeting will be sent out at least one week prior to the meeting. Unless otherwise agreed, the draft agenda will be prepared by the facilitator for a full meeting, and by the chair for a subgroup meeting. At the start of each meeting, the participants will review, revise as appropriate, and adopt the agenda they will follow. The subgroup meeting agenda will be developed by the subgroup chair with input and assistance from the subgroup members.
g. Scheduling of Meetings: The participants will adopt a meeting schedule. Initial meetings of the full collaborative took place on November 25, and December 18, 2002, and January 27, 2003. Additional meetings will be scheduled as appropriate. Subgroup meetings will be scheduled by the subgroup.
Decision Making
a. Decisions by Consensus: The participants will make decisions by consensus. Consensus means that the participants state that they can live with the decision. Silence will not be construed as agreement. However, it is the responsibility of the participants to make known their views if they are in disagreement or need to confer with their respective organization. If a participant cannot live with the decision, they will have the option to enter into separate negotiations with one or more of the other participants. Successful resolution of the issue(s) will then be brought back to the collaborative for approval. A participant may proceed to dispute resolution according to FERC Order 596 if an agreement is not reached after following the process outlined in b. Dispute Resolution.
A Participant who misses a meeting will not be held responsible for decisions made at that meeting, but will however make a good faith effort to review meeting notes and express any concerns they may have on proposed decisions prior to the next meeting.
If the IFG does not resolve the disputed issue by the self-imposed deadline, the collaborative may: 1) extend the IFG review period up to 30 days, 2) arrange for a FERC facilitator/mediator or a third-party facilitator/mediator, if the participants determine that such action would help resolve the dispute, or 3) declare the issue as unresolved. If disputes on PM&E measures are not resolved by the time the FERC declares that the Application is Ready for Environmental Analysis, the disputing parties will present the disputed PM&E measures to the FERC in the form of alternative measures.
c. Non-Binding Nature of Decisions: The participants recognize that decisions made during the collaborative are the necessary basis for final settlement agreement. A participant is not bound by such decisions and will be bound only by executing the final settlement agreement. The collaborative may publish information it develops prior to reaching a final settlement agreement, if appropriate to assist FERC in the licensing proceeding.
d. Decision Development and Documentation: All decisions will be documented in the written record of meetings. Participants will use a single text approach for development of decisions and the settlement agreement itself. Under this approach, all comments on a written document under discussion will be made in the form of proposed revisions to the actual document.
e. Reservation of Authority: Agencies with statutory or regulatory authorities preserve such authorities while participating fully in the discussions.
Communications
a. Informal Communications: A participant may communicate informally with any other participant and the facilitator. However, all participants recognize that open communications in the collaborative meetings are the necessary basis for reaching settlement agreement.
b. Formal Communications: Other than meetings, e-mail will be the primary means of formal communication in the collaborative among participants. The initiator of any such e-mail will ensure distribution to all collaborative participants or subgroup members, as applicable. A secondary list of potentially interested parties will be maintained. Potentially interested parties will be informed of meetings and meeting agendas and any public mailings but will not be included in other communications until such time as they become a participant. All participants in the collaborative will receive copies of PG&E’s submittals to the FERC.
c. Teleconferencing: Because some participants cannot attend every meeting in person, participants should be able to meaningfully participate via telephone or video-conference. Host will use best efforts to utilize the most effective equipment available at the meeting site. It is understood that due to the necessity of holding meeting at various locations, ideal conditions for every meeting may not be achievable. Even under the best of conditions the person attending a meeting by teleconference will not be able to acquire information or express their views as effectively as those attending in person. Whenever possible, presentations will be forwarded to remote participants in advance, preferably in electronic format.
a. Good Faith: All participants will make best efforts to reach a settlement agreement consistent with the collaborative goal.
b. Confidential Information. Settlement offers and other communications for the purpose of negotiation are confidential and will not be disclosed to parties other than the participants or otherwise used in any ongoing or future litigation (including the licensing proceeding itself) to the maximum extent allowable under applicable law. A party desiring that a settlement offer or other communication be confidential must clearly mark or otherwise identify the offer or communication as confidential in advance of disclosure.
c. Proprietary Information: A participant that has relevant proprietary information may require that all participants commit to not publicly disclose the information, as the condition for making the information available to the collaborative. Such a participant may also elect to withhold proprietary information and provide non-proprietary information intended to serve the same use.
Schedule
The participants will develop and follow a milestone schedule intended to help them reach a final settlement agreement. The participants will work with FERC to determine a schedule that is realistic and compatible with the relicensing process as conducted by FERC.
If a meeting needs to be postponed, relocated or cancelled, all participants will be polled by electronic mail for their ability to participate on several date or venue options, and given adequate opportunity to offer differing proposals.
Amendments to Protocol
The participants may amend these protocols by consensus. Any such revision will be written.
The State Water Resources Control Board (SWRCB) and the nine Regional Water Quality Control Boards are the principal state agencies responsible for administering the state’s water quality control program. (Wat. Code, §§ 13000-14958.) This includes responsibility to grant, waive, or deny water quality certification as provided for under section 401 of the federal Clean Water Act. (Wat. Code, § 13160; see generally 33 U.S.C. § 1341.) The SWRCB issues water quality certification before a license to operate a hydropower project may be issued by the Federal Energy Regulatory Commission (FERC). In addition, the SWRCB is the state agency responsible for administering surface water rights throughout the state. (Wat. Code, §§ 1000-5976.)
Where the SWRCB’s regulatory approval is required, the SWRCB has a legal duty, independent of any arguments raised by parties to the proceeding before the SWRCB, to assure that the requirements for that approval are satisfied. In this case, the SWRCB has an independent statutory duty under the Clean Water Act and the applicable regional water quality control plan to ensure that the operation of the Upper North Fork Feather River Project will not adversely affect water quality or the beneficial uses of the affected lakes and stream reaches within the North Fork Feather River drainage.
The SWRCB agrees to participate in the development of information regarding the Upper North Fork Feather River Project that may lead to a settlement among the interested parties. It is the policy of the SWRCB to promote voluntary settlements among the parties to adjudicative proceedings before the SWRCB. It is also the policy of the SWRCB to assist applicants and members of the public by making available information about the requirements of the programs it administers. The SWRCB will participate in the collaborative process with a view towards encouraging settlement among the parties and other persons interested in proceedings before the SWRCB, and providing applicants, protestants and other interested persons with information concerning the requirements applicable to SWRCB approvals.
While the SWRCB can provide information that will help guide the parties towards a settlement that is likely to obtain the necessary regulatory approvals, however, the SWRCB cannot make a prior commitment to the outcome of any regulatory approval that must be issued by the SWRCB. The SWRCB acts in an adjudicative capacity when it acts on a request for water quality certification, water right application, change petition, or other water right approval that may be required for or requested in connection with a proposed project. The SWRCB must be an impartial decision-maker, avoiding bias, prejudice or interest, in any adjudicative proceedings conducted in accordance with the SWRCB’s regulatory approvals. Consistent with its adjudicative responsibilities, including its obligation to consider any arguments that may be raised or information provided by parties to a SWRCB proceeding, the SWRCB cannot execute any settlement agreement or make any other commitment that would be binding on the SWRCB as part of its action on a request for water quality certification or other necessary SWRCB permit, license, or other regulatory approval.