Rock Creek-Cresta Settlement Agreement
Included below are relevant sections of the RC-C Settlement Agreement that describe the Ecological Resources Committee (ERC)
Appendix A, Section VIII. Ecological Resources Committee
Licensee shall, within 3 months of issuance of a New Project License, in coordination with the Parties, establish the ERC for the purpose of assisting Licensee in the design of monitoring plans, review and evaluation of data, and preparation of adaptive management measures for implementation by Licensee as provided in this Settlement. Licensee shall provide to FERC, FS, and the ERC by May 31 of each year an annual report of the activities of the ERC. Licensee shall provide Notice to FERC within 30 days (but prior to implementing the change) of any decisions by the ERC or FS that result in changes to Project operations or facilities.
Appendix B, Section II. Ecological Resources Committee (ERC)
Purpose: The primary purpose of this committee will be to assist Licensee in design of the monitoring plans, review and evaluation of data, and making specific decisions regarding ecological resources and flow related issues to be addressed by Licensee as provided in this Settlement.
Members: The membership of the ERC shall consist only of representatives of the Original Parties to this Settlement except FS, which will designate a liaison(s) to the ERC. The ERC may add to its membership by unanimous agreement not subject to dispute resolution.
Establishment: Licensee shall establish the ERC within 3 months of issuance of a New Project License. Licensee shall establish the ERC on an interim basis within 1 month after the Effective Date of this Settlement for the limited purpose of assisting Licensee in actions specified in this Settlement and scheduled for implementation in advance of issuance of the New Project License.
Meetings: Licensee shall hold an Annual Meeting of the ERC prior to April 30 of each year to discuss the results of the previous year’s monitoring, actions to be taken and information to be submitted to the FERC. Additional meetings may occur as the Committee deems necessary.
Conduct of Meetings: Licensee shall be responsible for chairing each meeting and providing timely meeting notes. Licensee shall arrange meeting times and places that are acceptable to as many ERC members as possible.
Meeting Notices: The Annual Meeting will be Noticed to all ERC members and FS, and representatives of all ERC members and FS may attend. Meetings other than the Annual Meeting may be held on Notice of no less than 7 days. The ERC shall adopt procedures for reasonable public participation consistent with applicable law.
Responsibility of the ERC:
Work cooperatively with Licensee to develop and implement monitoring programs as described in Appendices A and B of this Settlement.
Meet at least annually to review data and effectiveness of the monitoring effort.
Analyze monitoring results including:
1) An evaluation and report of existing information created during the past license operations for use in comparison to future monitoring results.
2) An evaluation and report of monitoring during the first five year period of increased instream flows and comparison to item 1)
3) An evaluation and report of monitoring during the second five year period of increased instream flows and comparison to item 1) and 2).
4) An evaluation and report of monitoring during the third five year period of increased instream flows and comparison to item 1), 2) and 3).
5) An evaluation and report of monitoring during subsequent years as determined by the ERC.
6) An evaluation and report of monitoring results of recreation flow releases. The schedule for this report shall be determined by the ERC.
Provide recommendations concerning flow releases and Project operation for inclusion in any reports to be submitted by Licensee to FERC. The ERC may also identify non-Project factors which influence achieving the desired ecological outcomes.
The ERC may adopt goals and objectives for the biological parameters or resources being monitored and evaluated.
Modify schedules and procedures set forth in Appendix B for preparing data and reports as may be necessary to achieve the objectives provided herein.
Monitoring Data and Other Information: The data collected under the monitoring programs will be compiled and distributed annually by January 15, or an alternate date agreeable to the ERC and FS, to each ERC member and FS by the ERC member responsible for performing the monitoring. Each ERC member shall be responsible for sharing in a timely manner information of which it is aware that is relevant to the work of the ERC.
Annual Report: Licensee shall submit a draft annual report to the ERC and FS each year. This report shall summarize the results of any ongoing ecological monitoring or study effort, changes that are to be implemented under the license and do not require FERC approval, proposed changes for which Licensee will request FERC or FS approval, including a proposed schedule for such approval, and a summary of any unresolved issues and proposed actions to resolve such issues. All ERC members and FS shall have 30 days to review and comment on a draft of the annual report prior to its submittal to FERC.
Flow Cap Evaluations, Recommendations and Measures Implemented by ERC:
All flow cap evaluations, recommendations and measures implemented by the ERC will require that the ERC make an affirmative determination of the benefit of such action. This determination shall be based on consideration of all power and non-power benefits, cost effectiveness, other impacts of the proposed measures, the use of the best scientific information available, and sound scientific methods.
Decision Making and Dispute Resolution: The ERC members shall work collaboratively to make decisions and resolve issues assigned to the ERC under this Settlement. Consistent with Paragraph 2.6 of this Settlement, FS shall be responsible for decisions within FS’ existing authority, including issuance of Section 4(e) Conditions and approvals thereunder. FS acknowledges that the ERC shall be responsible for decisions that are assigned to ERC under this Settlement and that are not within the FS’ existing authority. Further, FS and ERC acknowledge their mutual intent that, consistent with Paragraph 2.6 of this Settlement, the Section 4(e) Conditions shall provide for cooperation with regard to any decisions that are assigned to the ERC and that are also within the FS’ authority.
Reference documents to be used by the ERC shall include, but not be limited to, the new Project license, this Settlement, relevant FERC orders, and the Basin Plan.
If the participating ERC members are unable to reach mutual agreement on an issue, the dispute resolution procedures provided in Paragraph 4.9.1 - Paragraph 4.9.3 of this Settlement shall be used. In the event a disputed issue is not resolved in a timely manner, Licensee shall prepare and file a request that FERC, FS, or other agency with jurisdiction over the dispute, as appropriate, decide the issue in a timely manner. Each ERC member and FS shall be free to provide its support for Licensee’s filing or to file separate comments.
Notwithstanding the forgoing, in the event of a dispute over (a) whether to construct the Prattville Intake Modifications, or which modifications to construct, or (b) whether to implement additional temperature control measures in accordance with Paragraph 4 of Appendix A, Section I, the matter shall be resolved by the Chief of the SWRCB, Division of Water Rights, after use of alternative dispute resolution procedures as may be specified by the Division Chief. The Division Chief’s determination shall be subject to administrative and judicial review in accordance with the statutes, regulations, and case law governing the SWRCB. The Division Chief’s determination shall be subject to the limitations of Paragraph 5 of Appendix A, Section I.
Funding: Each member to the ERC shall be responsible for funding its representation on the ERC and, to the extent the internal resources of an agency allows, assisting in data collection and other efforts of the ERC at its own cost. Study efforts that require the collection of data by Licensee or a consultant shall be paid for by Licensee. Contracts for work funded by Licensee shall be entered into and directed by Licensee unless otherwise mutually agreed.