Section I of the Rock Creek-Cresta Relicensing Settlement Agreement
Section I. Water Temperature
1. Water Temperature Requirement. In order to reasonably protect cold freshwater habitat, Licensee shall maintain mean daily water temperatures of 20 degrees Celsius or less in the Rock Creek and Cresta Reaches, to the extent that Licensee can reasonably control such temperatures. Reasonable Control Measures are: the flow schedules stated in Section II, Table A below and implementation of the measures stated in this Section I. Further measures to maintain mean daily water temperatures of 20 degrees Celsius or less in the Rock Creek and Cresta Reaches may be required by subsequent amendment of the New Project License under FERC’s reservation of authority as provided in Paragraph 6 below.
2. Prattville Intake Control Measure. Licensee shall, within three months after issuance of a New Project License, initiate a modeling study to evaluate the anticipated effectiveness of the Prattville Intake Modification control measures. The study shall be completed as soon as practicable but no later than one year after issuance of New Project License. The ERC and FS will evaluate the effectiveness of such control measures after review of the study results.
Subject to the provisions of Paragraph 5 below which sets forth the Licensee’s total financial commitment for Reasonable Control Measures as set forth in Paragraphs 2 and 4 of this section, the ERC and FS shall affirmatively determine which Prattville Intake Modification control measures, if any, shall be implemented. This determination shall be based on a finding that the modification control measures will effectively contribute to the maintenance of mean daily water temperatures of 20 degrees Celsius or less in the Rock Creek and Cresta Reaches. This determination shall also be based on the best scientific information available, the use of sound scientific methods, consideration of the relative cost of different Prattville Intake Modification control measures, and the relative temperature control benefits of such measures and alternatives thereto.
Licensee shall construct any Prattville Intake Modifications and commence operation for selective withdrawal of coldwater from Lake Almanor no later than one winter and one following summer season after issuance of the New Project License and the affirmative determination of the ERC and FS above, unless that schedule is impractical due to any further regulatory approval required for such control measures. In the event that further regulatory approval is required, Licensee shall promptly apply for such approval, and shall implement the control measures no later than one winter and one following summer season after obtaining the requisite approval.
3. Water Temperature Monitoring. Licensee shall implement a water temperature monitoring program. The program shall continue for no less than five years after installation of the Prattville Intake Modification, or five years after a determination pursuant to Paragraph 2 of this section that the Prattville Intake Modification will be ineffective and therefore should not be constructed. During the term of the New Project License, the monitoring and reporting requirements set forth herein may be reduced or terminated after it is demonstrated to the satisfaction of the ERC and the FS that mean daily temperatures of 20 degrees Celsius or less have been and will be achieved, or that a given requirement is not necessary to determine whether this temperature objective will be met.
The temperature monitoring program shall consist of continuous temperature and flow monitoring in the Rock Creek, Cresta, Belden and Seneca reaches, along with temperature monitoring in their major tributaries, from June 1 through September 30, at the sites designated below for 15 years following issuance of the New Project License. Continuous temperature monitoring shall be conducted at gages NF 57 below Rock Creek and NF 56 below Cresta, from June 1 through October 31, for the term of the New Project License. Flow monitoring shall be conducted at existing flow gages.
Temperature monitoring data will be used to develop and verify a model that predicts, with reasonable accuracy, the temperature profile of the river based on data from NF 56 and NF 57. Once the temperature model has been determined by the ERC and FS to be reasonably accurate for determining downstream temperature, the ERC and FS may reduce the number of non-telemetered sites or the frequency of reporting data.
Monitoring sites in Rock Creek and Cresta Reaches shall be located as follows:
NFFR below Rock Creek Dam
NFFR at the NF57 gage (data telemetered to Rock Creek PH)
NFFR above Bucks Creek
Chips Creek
Milk Ranch Creek
Chambers Creek
Jackass Creek
Bucks Creek
Bucks PH Tailrace
NFFR above Rock Creek PH
Rock Creek PH Tailrace
NFFR below Cresta Dam
NFFR at the NF56 gage (data telemetered to Rock Creek PH)
NFFR above Cresta PH
Rock Creek
Grizzly Creek.
If monitoring results from gages NF 57 and NF 56 demonstrate that mean daily water temperatures regularly exceed 20 degrees Celsius in the Rock Creek or Cresta reaches in October, the Licensee shall monitor at the following sites in October: NFFR below Rock Creek Dam; NFFR above Bucks Creek; NFFR above Rock Creek PH; NFFR below Cresta Dam; and NFFR above Cresta PH. The temperature monitoring program also shall include continuous water temperature monitoring at a reasonably accessible site on the Middle Fork Feather River, for the period June 1 through September 30. In addition, Licensee shall monitor water temperature profiles in Lake Almanor and Butt Valley Reservoir, and collect other data (e.g., water velocity measurements) as needed to evaluate the efficacy of temperature control measures, for the period June 1 through September 30. Finally, Licensee shall maintain two meteorology monitoring stations, one at the Project and another at Project No. 2105, at which data shall be collected for the period May 1 through October 31. License shall provide the meteorological data to any member of the ERC or FS upon request.
Licensee shall provide monitoring results for 9 years of the first 15 years after issuance of a New Project License to the ERC and the FS on a weekly basis in dry or critically dry water years, or bi-weekly in normal and wet water years, for the following monitoring sites: NFFR below Rock Creek Dam; NFFR at the NF 57 gage; NFFR above Bucks Creek; NFFR above Rock Creek PH; NFFR below Cresta Dam; NFFR at the NF 56 gage; and NFFR above Cresta PH. The ERC and FS shall determine which 9 years these monitoring results shall be collected and provided to them. This determination shall be made by the ERC and FS by May 1 of each year. Reporting of these monitoring results to the ERC and FS shall be undertaken in a reasonable manner and form to be specified in the temperature monitoring plan required below. In addition to the foregoing, reporting of continuous temperature monitoring results from NF 56 and NF 57 gages shall be made available to any member of the ERC or FS upon request for the term of New Project License.
If water temperatures monitored at NF 56 or NF 57 exceed a mean daily average of 20 degrees Celsius for two consecutive days, Licensee shall provide notice to the ERC and FS. The Licensee shall inform the ERC and FS of any actions being taken by the Licensee to maintain water temperatures at a mean daily average of 20 degrees Celsius or less. Analysis of the effectiveness of these actions shall be included in the annual Monitoring Report.
The Licensee shall submit to FERC an annual Monitoring Report that includes all monitoring results for the prior year and analyzes the effectiveness of the control measures in achieving mean daily temperatures of 20 degrees Celsius or less in the Rock Creek and Cresta Reaches. The report shall be submitted no later than May 31 of each year. The Monitoring Report shall be prepared in consultation with the ERC and FS and shall be provided to them on submittal.
Licensee shall prepare a water temperature monitoring plan which provides for implementation (including a schedule for implementation) of the temperature monitoring program described above. The plan shall be prepared in consultation with the ERC and FS. As soon as practicable but not later than one year after issuance of the New Project License, Licensee shall file the plan with the SWRCB for approval. Licensee shall thereafter submit the plan to FERC for approval. If FERC modifies the plan as submitted, the Licensee shall comply with the plan as approved by FERC.
4. Additional Reasonable Control Measures. Within five years of the date when the Commission approves the water temperature monitoring plan, the Licensee shall prepare a report that evaluates whether mean daily temperatures of 20 degrees Celsius or less have been and will be achieved in the Rock Creek and Cresta Reaches, and if not, whether additional reasonable control measures are available. The report shall include recommendations for the implementation of any such measures.
The report shall include all modeling and monitoring results required by Paragraph 2 and 3 above. It shall also factor in economic considerations in evaluating whether additional temperature control measures are reasonable.
Subject to the provisions of Paragraph 5 below which sets forth the Licensee’s total financial commitment for Reasonable Control Measures as set forth in Paragraphs 2 and 4 of this section, the ERC and FS shall make an affirmative determination whether additional temperature control measures shall be implemented. This affirmative determination shall be based on the best scientific information available, the use of sound scientific methods, consideration of the relative cost of different control measures, and other relevant factors. As soon as practicable after such affirmative determination, Licensee shall implement any additional reasonable control measures for which no further regulatory approval is necessary. Licensee shall promptly apply for regulatory approval for any other additional reasonable control measures that the ERC and FS affirmatively determine shall be implemented.
5. Coldwater Habitat and Fishery Mitigation and Enhancement Fund (Fund). On issuance of the New Project License, Licensee shall establish a tracking account and fund a total of $5,000,000 (current dollars) for expenditure on water temperature control measures. Seventy-five months after such issuance of the New Project License, Licensee shall add to the Fund an additional amount not to exceed $2,000,000 (January 2001 dollars, escalated per Paragraph 4.5.5 of this Settlement), provided the ERC and FS make an affirmative determination, based on the first 5 years of monitoring results, that further measures are necessary to maintain mean daily water temperatures of 20 degrees Celsius in the Rock Creek and Cresta Reaches, and that the additional funding is appropriate for this purpose. The balance in the Fund shall accrue interest at the 90-day commercial paper rate as published by the Federal Reserve Bank of New York, credited on a quarterly basis.
The primary purpose of the Fund shall be the temperature control measures described in Paragraphs 2 and 4 of this section, exclusive of the development and implementation of the temperature monitoring plan pursuant to Paragraph 3 of this section. The Fund may be used to undertake other measures that directly enhance coldwater habitat and fishery in the Rock Creek and Cresta Reaches, if the ERC and FS determine that further expenditure on temperature control measures will not be effective in maintaining a mean daily water temperatures of 20 degrees Celsius or less in these reaches. The Fund shall not be used, however, to compensate the Licensee for foregone power generation due to flow schedules stated in Section II, Table A below. The Fund may be used to purchase additional flow only if the ERC has determined that no other reasonable temperature control measures are available.
Decisions on expenditures to be charged to the Fund shall be made by the ERC and FS. Such decisions shall be based on the best scientific information available and the use of sound scientific methods. No expenditure shall be made and charged to the Fund in absence of any necessary regulatory or other legal approval, or for actions that would be in conflict with any regulatory, legal, or contractual requirement.
All temperature control measures identified pursuant to Paragraphs 2 and 4 of this section shall be funded from the Fund. If the Prattville Intake Modification is determined to be the Submerged Curtain/Skimmer Wall pursuant to Paragraph 2 of this section, Licensee shall debit the Fund $3,000,000 for the cost of its design and construction. Licensee shall retain any difference between $3,000,000 and the actual design and construction cost of the Submerged Curtain/Skimmer Wall. Any design and construction costs in excess of $3,000,000 and future operation and maintenance costs will not be debited from the Fund.
Any unallocated Fund balance after the New Project License expiration plus the term(s) of any annual license(s), which may be issued after license expiration or license surrender shall revert back to Licensee. Licensee shall distribute an accounting statement to FERC, ERC and the FS within 30 days after January 1 of each year after the Fund is established, summarizing the Fund balance, accrued interest, and previous charged amounts. Licensee shall administer all work and payments under the Fund in a manner consistent with its normal business practices. Licensee’s cost of administering the Fund account shall not be charged to the Fund.
Funding under this paragraph may be used in conjunction with funds that may be available from other sources, including but not limited to Licensee’s other relicensing proceedings on the NFFR.
6. Reservation of FERC Authority. FERC reserves authority to reopen for cause the New Project License to protect Beneficial Uses of the NFFR through coordinated operations of this Project, North Fork Feather Project (No. 2105) and Poe Project (No. 2107). Such reopener may occur in conjunction with the relicensing proceedings for Nos. 2105 and 2107.