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Project 2105 License Group (2105LG) Approved Meeting Summary – March 13, 2003 |
Call to order: Patti Kroen, Facilitator at 9 a.m.
Attendees: See Attachment 1 for list of attendees. Attendees approved the March 13, 2003 draft Agenda and the February 13, 2003 and February 28, 2003 meeting summaries with minor revisions. Wayne Dyok provided suggested settlement article language related to alternative recreation sites (Attachment 2) and suggested that we begin to systematically accumulate language that will be brought together in the settlement agreement. He asked PG&E for a status report on the recreation section. Tom Jereb replied that he needs to see where the flow issues go before distributing and agreeing to the recreation section. After some discussion, all agreed that individual pieces might be tentatively agreed to but nothing would be finally agreed to until all of the sections were drafted and compiled. The facilitator noted that she is tracking the action items identified and agreements made for the 2105LG Group.
· Agreed that individual pieces of the settlement agreement might be tentatively agreed to but nothing would be finally agreed to until all of the sections were drafted and compiled.
The facilitator reviewed action items yet to be completed. The LAWLAF Committee is scheduled to deliver completed attribute tables and supporting text at the March 27th 2105LG meeting. PG&E is investigating easements on or near Section 17 near Westwood. Plumas County is working on a formal response to the draft Memorandum of Understanding (MOU) between PG&E and Plumas County Sheriff.
Prattville Modifications:
Scott Tu provided information on the hydraulic model constructed and studies undertaken with the goal to evaluate potential alternative modifications to the Prattville intake or operations that would result in colder water withdrawal from the reservoir for release to achieve 20º C temperatures downstream. Scott described a conceptual idea Bechtel developed over 10 years ago for a flexible curtain with an opening at the bottom to select for colder water withdrawal. The Bureau of Reclamation developed a physical model to test the idea but the results were inconclusive. The Project No.1962 License includes Article 4(c), requiring that selective cold water withdrawal from Lake Almanor be evaluated. A hydraulic model and a 3-D mathematical model have been developed and PG&E is testing the selective withdrawal curtain concept using the model.
The University of Iowa constructed the hydraulic model. It is about 100 feet by 50 feet and models an area approximately 2 miles by 3 miles. There is ‘built-in’ vertical distortion that is accommodated for in the model calculations. The model includes the now-submerged channel dug in the 1920s to enhance the flow of water from the Hamilton Branch to the Prattville intake.
The curtain structure consists of a membrane suspended vertically in the reservoir and extending out from shore to shore at some distance from the intake structure, forming a ‘pool’ behind the curtain and over the intake structure. The curtain is held in place on the surface by buoys and secured at the bottom by cables and anchors. PG&E has determined that a bottom opening in the curtain of approximately 2400 square feet will achieve the desired velocity to successfully draw the coldest water during the summer months when the curtain would be operated. It is unclear whether the curtain would be a permanent structure however, boating would not be possible near the structure when in place and operational.
The model has tested five curtain options ranging in distance from the intake from 400 to 1450 feet. Results produced temperature reductions ranging from 1 to 4º C with curtain test #4, located about 900 feet from the intake, producing a temperature reduction of approximately 3º C. PG&E is currently examining additional runs using the curtain #4 location with modifications to the levees near the front of the curtain to determine if levee removal would result in further temperature reductions.
Scott mentioned that other alternatives to the Prattville intake structure under consideration include a hooded pipe to be used either alone or with a curtain structure. He explained that PG&E studies are looking at different conditions of stratification and lake levels from 4490 to 4480 feet and will include 30 production runs, 6 sensitivity runs and 5 QA/QC runs to be completed by the end of May 2003. The complete modeling presentation is identified as Attachment 3 to this summary but due to the file size, is provided separately on CD or hard copy.
Water Quality – Temperature:
Sharon Stohrer outlined the State Water Resources Control Board’s (SWRCB) responsibilities under the Clean Water Act to prepare conditions for the 401 Certification. She explained that the SWRCB has an independent statutory duty to ensure that the operation of the UNFFR Project will not adversely affect water quality or the beneficial uses of waters affected by the project. Sharon went on to say that the SWRCB cannot make prior commitments to the outcome of any regulatory approval that will be issued by the Board, and will not provide formal protection, mitigation and enhancement (PM&E) measures or is pre-decisional during this process. But, she assured the group that the SWRCB will work with the collaborative to seek options that meet everyone’s needs and protect the beneficial uses identified in the Basin Plan. Beneficial uses designated for the NFFR include: Municipal and Domestic Supply, Power Generation, Contact Recreation (including canoeing and rafting), Non-contact Recreation, Cold Freshwater Habitat, Cold Water Spawning, and Wildlife Habitat. Designated beneficial uses specific to Lake Almanor include: Power Generation, Contact Recreation, Cold Freshwater Habitat, Warm Freshwater Habitat, Warm Water Spawning, and Wildlife Habitat.
The SWRCB will review the 2105 Project in the context of the entire watershed and will need to evaluate all Project-affected stream reaches and reservoirs. Sharon stated that no environmental analysis should be considered complete without an evaluation of all project-affected stream reaches. The SWRCB primary goals for the Project and the watershed are to:
· Maintain or restore water quality in all affected water bodies to levels of compliance with the Basin Plan and other appropriate state and federal criteria and goals
· Provide water temperatures that are protective of cold freshwater habitat and spawning habitat requirements
· Establish instream flow regimes that support a properly functioning stream system and associated ecological needs
· Maintain adequate gravel recruitment to diverted stream reaches to provide for coldwater spawning habitat and a healthy benthic macroinvertebrate community
· Restore a diverse corridor of native riparian species along all project-affected stream reaches, to protect water quality and to provide a healthy interface between aquatic and terrestrial ecosystems
· Minimize impacts to flat-water recreation opportunities and to aquatic biota that may result from fluctuations in lake levels
· Consider project operation in a manner that provides flow releases to support whitewater boating opportunities on the NFFR.
Sharon stated that SWRCB staff identifies structural features and operations of Project 2105 as the controlling factors in achieving appropriate water temperatures in downstream reaches of the NFFR. She went on to say that it is expected that PG&E will assume appropriate responsibility in this relicensing, for water temperatures occurring downstream of the 2105 Project boundary that are a result of the 2105 Project. Sharon supported the selective withdrawal modeling efforts at Prattville that are currently underway and said SWRCB is also interested in looking at opportunities at the Caribou II intake and consideration of a possible re-operation of the Bucks Creek Project for temperature controls. She agreed that power is a beneficial use that will be considered in the balancing of beneficial uses designated in the Basin Plan, but noted that the SWRCB has no “standard economic formula” that is used to assist in their balancing or decision-making.
Sharon discussed project-related water quality issues and outstanding study needs. She explained to participants that under Study 17A PG&E has agreed to conduct additional water chemistry analyses using sensitive laboratory detection methods appropriate for this watershed. This specific water column sampling continues to be conducted at 20 stations throughout the project area, and includes seasonal water quality sampling for several constituents including silver, lead, cadmium and mercury at lower threshold limits than previous testing allowed. PG&E will also be testing fish tissue for potential bioaccumulation of methyl mercury, introduced to the ecosystem by mining activities. Mercury analysis will be conducted on resident fish from Butt Valley Reservoir (where a spike in water column mercury was detected) and also in the Belden reach. Sharon also described testing for bioaccumulation of PCBs in fish tissue that will be done in the Belden reach below the location of the 1984 spill at Caribou. The PCB spill was handled under a spill abatement order that was followed and closed after material was dredged and removed to an upslope land disposal site. She explained that this is not an enforcement action but a data gathering exercise to characterize the conditions at this time and is associated with the existing 2105 license.
Sharon explained that Lake Almanor and Butt Valley Reservoir are recognized as recreational destinations, and that protection of waters designated for contact recreation requires that bacterial levels be maintained below thresholds that could cause human health impacts. Previous reports from sampling conducted by the Department of Water Resources (DWR) indicated elevated fecal Coliform levels in Lake Almanor, and more current data is needed to demonstrate compliance with the Basin Plan’s bacterial objective. She stated that Tom Jereb has agreed to work with the SWRCB staff to design a fecal Coliform monitoring effort that will provide regulatory data on the condition of contact recreation waters in the project area.
PG&E described DWR ongoing water quality monitoring in Lake Almanor. Plumas County questioned if all of the data being collected by this process and others would be consistent with historic sampling since DWR has recently adopted new, ultra-clean sampling methodology. PG&E acknowledged that some of the data might not be fully comparable. SWRCB added that they anticipate ongoing monitoring of water quality at Lake Almanor due to its significant recreational and ecological importance.
Initial fecal coliform screening samples indicated no real concern, however standard test protocol is to sample five times in 30 days so PG&E will conduct additional sampling at several locations during Summer 2003. DWR data indicate fecal coliform spikes at Chester PUD former outfall and Bailey Creek. PG&E stated that the spikes coincide with a large geese population present in the location at the same time and may provide some explanation for the elevated levels. PG&E will meet with the SWRCB, USFS and Plumas County to determine appropriate testing locations.
Continuing with discussion of the water quality standards and protection of the designated beneficial uses of project-affected waters, Sharon identified limitations to access in the Belden reach as impairment to river recreation. She stated that the barrier created by Himalayan blackberry encroachment is a primary impediment to riverbank access and to navigation on the NFFR in this reach. Sharon stated that the SWRCB supports PG&E’s proposal to conduct a test program of alternative physical methods of blackberry removal at 4 targeted river corridor access sites. She went on to say that although this was a commendable start, a “test” to determine feasibility of exotic vegetation removal must be considered as a pilot study, and it must be recognized that test plots will yield data which may be applied to an expanded, long term application of the preferred method along various sections of the Belden river banks. The participants discussed various control methods and concluded that chemical application may be the only truly effective means of removal, and any mechanical removal would need to be a recurring activity. High flows do not appear to limit blackberry growth.
Sharon explained that the protection of designated beneficial uses of the NFFR watershed would be an on-going discussion, as part of the Collaborative group’s future presentations of resource-specific fishery and geomorphologic needs and proposed PM&Es.
In closing, Sharon identified outstanding data needs for issuance of a water quality certification on the relicensing of Project 2105. She explained that PG&E and the Collaborative group should continue with additional discussion of studies and information gathering to address the following:
1. The potential for additional water temperature cooling in downstream reaches, using feasible operational changes or structural modifications at the Caribou II intake structure in Butt Valley Reservoir.
2. The possibility of seasonal re-operation of the Bucks Project to aid in achieving cold freshwater habitat in the Cresta and Poe diverted reaches without placing as great a demand on Lake Almanor storage for the cooling of these lower reaches of the NFFR.
3. The evaluation of potential effects to aquatic biota with alternative base flow in the Seneca and Belden reaches, and with pulsed flows for geomorphologic or recreation flow releases. This data need must include a comprehensive study to quantify changes in suitable amphibian habitat with modifications to flow. (Sharon described an anticipated study directed by the SWRCB, to evaluate biological consequences of both natural and manufactured pulse flows in regulated rivers. This comprehensive study, The Ecological Effects of Pulsed Flows of Aquatic Resources in California, is to be funded by a $1 million dollar grant from the CEC and will be conducted by the University of California, Davis, Center for Aquatic Biology and Aquaculture. She noted that the NFFR is one of the study locations under consideration. However, responsibility of the Licensee to gather data for the 2105 relicensing effort will not be satisfied by this effort, completion of this study is expected in 2004 or later.
4. Assessment of flow requirements (above) must include evaluation of those flows necessary to provide a whitewater recreational opportunity. Development of an ongoing water quality monitoring program at Lake Almanor, with funding support contributions over the life of the license.
A document titled ‘Proposal for Water Quality Monitoring Program – Project Application #2105’ was distributed by Plumas County (Attachment 4) and Bill Dennison described an existing agreement that addresses funding for water quality testing that Plumas County would like to clarify. PG&E acknowledged the agreement and indicated their intention to follow through with their commitment and their hope that the County will honor its commitment contained in the agreement. Plumas County and PG&E will meet to discuss and clarify the water quality testing agreement.
Action Item
q Action Item 13: PG&E will take the lead and set up a meeting between SWRCB, Plumas County, USFS, and PG&E on fecal coliform sampling site selection for Summer 2003 testing.
Due Date: April 2003
q Action Item 14: Plumas County and PG&E will meet to discuss and clarify the water quality testing agreement.
Due Date: April 2003
Scott Tu presented results of temperature modeling studies and distributed copies of a document titled ‘Supplemental Information for Exhibit E, Report on E2: Water Use and Quality’ that was prepared to address a request from agencies for additional refinements on temperature. He described the use of a one-dimensional model called MITEMP to predict vertical temperature profiles for Lake Almanor and Butt Valley reservoirs and the one-dimensional stream temperature model used to predict longitudinal temperature profiles in the Belden and Seneca reaches.
The reservoir modeling looked at dry year conditions, under normal and warm weather conditions, and with or without the Prattville device for Canyon Dam releases of 35, 75, 150, 300, and 600 cfs. Butt Valley modifications were not considered beyond the initial study that looked at the preference of operating Caribou 1 over Caribou 2. The initial study concluded that there was no preference since the cold water pool was depleted in a few days. The charts contained in the handout present results of the model runs on Canyon Dam release temperature, Almanor water surface, and Prattville release temperatures for the various options. Scott pointed out that the study provides information on the extreme case of using the modified Prattville intake year round but refinements and additional modeling can be done to study selective withdrawals during the summer only. The current work assumes that all of the water needed over and above the existing 35 cfs comes from generation, however PG&E is also conducting model runs with the water coming from storage.
Scott described how the model carried through Butt Valley to predict temperature releases from Caribou 1 and Caribou 2 under various conditions and how the model shows that temperatures in the Seneca Reach are based on the release from Canyon Dam and water year conditions. The complete modeling presentation provided by Scott Tu at this meeting is identified as Attachment 3 to this summary but due to the file size, is provided separately on CD or hard copy.
(Note: The ‘Erosion’ agenda item discussion occurred both before the discussion of Prattville modifications and after the discussion of water quality and temperature. It has been joined in the summary for ease of review)
Bill Dennison explained one of Plumas County’s concerns regarding erosion around Lake Almanor. Bill described the history of the Clifford Deed, which gives PG&E the ‘right to erode’. Plumas County believes that conditions have changed since the Clifford Deed agreement was reached and requested that the issue be revisited. Bill pointed out that the agreement pre-dates both CEQA and NEPA and suggested that it is appropriate that the issue be addressed in the relicensing effort. He also pointed out that the level of the reservoir has been raised three times and is now 22 feet higher than when the agreement was made. He suggested that the higher reservoir level might be impacting septic systems constructed near the shoreline. PG&E distributed copies of a letter dated February 4, 1998 from PG&E to FERC outlining the Lake Almanor erosion issues and containing a copy of the Clifford Deed (Attachment 5) and a copy of a letter dated February 12, 1998 from FERC to David Galpine (Attachment 6) in which FERC acknowledges PG&E’s rights over the property in question and a finding of compliance.
Christi Goodman distributed copies of a Plumas County Erosion Issue Sheet (Attachment 7) and a handout that included examples of an erosion article and a shoreline stabilization article and a proposed erosion article for the 2105 Project adapted from the Holcombe Hydroelectric Project (Attachment 8). Christi identified Plumas County issues as follows:
· Permitting process and access issues (concern that a CPUC 851 process may be required for homeowners)
· Financial responsibility for riprap placement both within and outside Clifford Deed
· Water quality impacts
· Impacts to septic systems – water level was lower at time of County permit issuance
· Is the ‘right to erode’ appropriate in this era
PG&E responded that there is a permitting process in place that homeowners can use and reported that they had conducted environmental studies that had concluded no environmental impacts were occurring. PG&E also noted they have no documentation of septic system impacts. Wayne Dyok pointed out that if impacts are occurring, they need to be addressed and Plumas County feels that an erosion article would be appropriate. Participants discussed whether FERC would likely rely on the Clifford Deed to establish the 401 Certification or ask the licensee to alter operations to address the erosion issue as FERC has ordered on a project in Wisconsin.
PG&E responded that their proposed erosion control plan adequately addresses the issues and added that the septic system issue was evaluated in a 1976 Environmental Assessment and found to be a non-issue and reviewed again during shoreline investigations associated with the relicensing effort. Wayne Dyok asked if the information contained within the Erosion Plan was sufficiently detailed to establish a license article, including drawings and implementation schedule. PG&E responded that they believe it is adequate. Plumas County suggested it would be helpful if PG&E could resurvey and establish markers indicating the property lines.
Plumas County acknowledged that a previous issue related to a requested height reduction for the Canyon Dam spillway is no longer an issue since the outlet capacity has been confirmed at 2000 cfs. Participants also agreed that the Red River Company Deed is not an issue that can be resolved in this relicensing forum.
Agreements:
· Agreed that the Red River Company Deed is not an issue that can be resolved in this relicensing forum.
Focus for Next Meeting:
The 2105LG agreed to add discussions on a shoreline management plan and water quality monitoring to future meetings. The participants discussed the desire to maintain public involvement in the Chester area and agreed that the Hamilton Branch discussion should take place in Westwood on April 24th.
Upcoming meeting dates and topics are as follows:
Date Location Topics
March 27 Chico LAWLAF attributes and justification statements
April 10 Chico Shoreline Management Plan; Water Quality Monitoring
April 24 Westwood Hamilton Branch and hydrology
Attachment 1: List of Attendees
Marvin Alexander 2105 Comm.
Fred Binswanger Westwood Chamber of Commerce
Michael Condon USFS
Bill Dennison Plumas Co. Sup.
Jerry Duffy Dyer Mtn.
Wayne Dyok MWH
Christi Goodman Plumas County
Robert Hughes DFG
Tom Hunter Plumas County
Tom Jereb PG&E
Patti Kroen Kroen
Mike Meinz DFG
Jerry Mensch CSPA
Steve Robinson MMC
Steven Schoenberg USFWS
David Steindorf Chico Paddleheads/American Whitewater
Sharon Stohrer SWRCB
Eric Theiss NOAA Fisheries
Scott Tu PG&E
Janet Walther PG&E
Charles White PG&E
Bill Zemke PG&E
Attachment 2: Proposed Settlement Agreement: Recreation Facilities Alternatives
PROJECT 2105
SETTLEMENT AGREEMENT
RECREATION FACILITIES ALTERNATIVES
Article _____. If for any unforeseen reason, a planned recreation site is determined to be no longer suitable, the Licensee shall in consultation with the Cooperative Management Team (CMT) identify a comparable suitable location and shall construct and operate recreation facilities similar to those proposed for the unsuitable site and comparable in cost.
Attachment 3: PG&E Modeling Presentation (provided separately)
Attachment 4: Proposal for Water Quality Monitoring Program – Project Application #2105 (provided separately)
Attachment 5: PG&E Letter to FERC regarding Lake Almanor Erosion Issues (provided separately)
Attachment 6: FERC letter to David Galpine regarding Lake Almanor Erosion (provided separately)
Attachment 7: Plumas County Erosion Sheet
Plumas County Erosion Issue Sheet
Licensee Proposal: Licensee has mapped Lake Almanor erosion above and below the 4500-foot elevation, existing riprap, and erosion rights
Justify the “permissible erosion agreements”:
Licensee Proposal:
Reduce spillway height at Canyon Dam to the maximum allowable water level: 4494.
Implementation of the use of environmental erosion controls suggested by FERC in 1997, in place of riprap.
Natural Armoring vs. 2 tons per year
Plumas County requested that PG&E resurvey the markers at the 4500’ elevation to determine:
Do the uncontrolled spills from the Hamilton Branch Header Box erode the hillside and deposit sediments in the Hamilton Branch?
Attachment 8: Erosion Article Handout
EROSION ARTICLE ADAPTED FROM HOLCOMBE HYDROELECTRIC PROJECT 1982
Article 4??. Within one year of the issuance date of the license, the licensee shall, after consultation with the California Department of Fish and Game (Cal F&G), California State Water Resources Control Board (SWRCB), the U.S. Fish and Wildlife Service (FWS), the U.S. Forest Service, Plumas County, file for Commission approval a final Shoreline Erosion Protection Plan for Lake Almanor and Butt Lake to monitor and control shoreline erosion at the project.
The final Shoreline Erosion Protection Plan shall include: (1) identification of proposed measures to control soil erosion and an assessment of such measures; (2) functional design drawings of all soil erosion control measures; and (3) a specific implementation schedule and details for monitoring.
The plan shall include documentation of consultation with Cal F&G, SWRCB, FWS, USFS, and Plumas County, copies of comments and recommendations on the completed plan after it has been prepared and provided to the agencies, and specific descriptions of how the agencies' comments are accommodated by the plan. The licensee shall allow a minimum of 30 days for the agencies to comment and to make recommendations prior to filing the plan with the Commission. If the licensee does not adopt a recommendation, the filing shall include the licensee's reasons, based on conditions at the site.
The Commission reserves the right to require changes to the plan. Upon Commission approval, the licensee shall implement the plan including any changes required by the Commission.
SHORELINE STABILIZATION ARTICLE FROM NEW YORK POWER AUTHORITY ST. LAWRENCE PROJECT 2000
Article ??. The Licensee, in consultation with the Land Management and Recreation Committee referenced in Attachment 2 of the Local Government Agreement (“Committee”), shall develop a Shoreline Stabilization Plan to stabilize the eroding shorelines within the Project Boundary. The Plan shall identify the areas to be stabilized and shall establish the criteria, method, and preliminary schedule for accomplishing stabilization, as set forth in Attachment 2, Section 1 of the Local Government Agreement. For work activities performed under the Shoreline Stabilization Plan, the Licensee shall provide up to $500,000 annually, 25 percent of which shall be available, as determined by the Licensee, for adjoining landowners to perform small stabilization projects. The Licensee shall complete all stabilization work identified in the Shoreline Stabilization Plan within ten years following the effective date of this license.
Within one year following the effective date of this license, the Licensee shall file the Shoreline Stabilization Plan with the Commission for approval. Prior to filing with the Commission, the Licensee shall allow a minimum of 30 days for the Subcommittee to comment on the Shoreline Stabilization Plan. When filing the Shoreline Stabilization Plan with the Commission, the Licensee shall include documentation of its consultation with the Committee, including copies of the comments on the proposed plan received during the consultation. Further, the Licensee should identify in its filing how the comments are accommodated by the proposed plan. The Commission reserves the right to require changes to the Shoreline Stabilization Plan. The Licensee shall not commence stabilization activities until after the Commission has approved the Shoreline Stabilization Plan.
Following Commission approval of the Shoreline Stabilization Plan, the Licensee shall submit an annual shoreline stabilization compliance report, which shall list and describe all stabilization work performed during the previous calendar year and identify all stabilization work to be performed in the current year.
Should the Licensee, after consultation with the Committee, determine that the stabilization work specified in the Shoreline Stabilization Plan has been completed earlier than 10 years following the effective date of this license, the Licensee is authorized to seek amendment of the license to permanently discontinue the requirements of this license article. Upon approval of the license amendment by the Commission, the Licensee’s obligation to prepare an annual shoreline stabilization report shall expire.
HOLCOMBE PROJECT EROSION ARTICLE
Article 415. Within one year of the issuance date of the license, the licensee shall, after consultation with the Wisconsin Department of Natural Resources (Wisconsin DNR), the U.S. Fish and Wildlife Service (FWS), and the State Historical Society of Wisconsin (Wisconsin SHPO), file for Commission approval a final Shoreline Erosion Protection Plan for the Holcombe Hydroelectric Project to monitor and control stream and impoundment shoreline erosion at the project. Furthermore, the licensee shall develop the final Shoreline Erosion Protection Plan in conjunction with the Historic Resources Management Plan required in Article 418.
The final Shoreline Erosion Protection Plan shall include the provisions, applicable to the Holcombe Hydroelectric Project, as specified in Appendix Q (Shoreline Erosion Protection Plans: Holcombe, Wissota, and Dells Hydro Projects), pages Q-2 and Q-3, of the Lower Chippewa River Settlement Agreement, filed February 1, 2001, and also include: (1) identification of proposed measures to control soil erosion and an assessment of such measures; (2) functional design drawings of all soil erosion control measures; and (3) a specific implementation schedule and details for monitoring.
The plan shall include documentation of consultation with the Wisconsin DNR, FWS, and Wisconsin SHPO, copies of comments and recommendations on the completed plan after it has been prepared and provided to the agencies, and specific descriptions of how the agencies' comments are accommodated by the plan. The licensee shall allow a minimum of 30 days for the agencies to comment and to make recommendations prior to filing the plan with the Commission. If the licensee does not adopt a recommendation, the filing shall include the licensee's reasons, based on conditions at the site.
The Commission reserves the right to require changes to the plan. Upon Commission approval, the licensee shall implement the plan including any changes required by the Commission.
Article 416. The licensee shall manage project lands as specified in the portions of the Holcombe Land Management Plan (see Lower Chippewa River Settlement Agreement, Appendix N, filed February 1, 2001) approved in ordering paragraph (E).