UPPER NORTH FORK FEATHER RIVER PROJECT

FERC Project No. 2105

April 22, 2004

Upper North Fork Feather River Project

FERC Project No. 2105

Relicensing Settlement Agreement

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 California Department of Fish and Game (“CDFG”), American Whitewater (“AW”), Plumas County (“Plumas”), Chico Paddleheads (“CP”), Shasta Paddlers (“SP”), Mountain Meadows Conservancy (MMC), and California Sportfishing Protection Alliance (“CSPA”) each referred to individually as a “Party” and collectively as “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 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 a New Project License the Licensee consulted with the Parties and other individuals and organizations in development of the studies, data, and other material presented in the application.

          1.2.3    In 2002, Licensee and the Parties 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 Settlement as the “Collaborative.”  This Settlement is an end product of the Collaborative’s work.

           1.2.4    State Water Resources Control Board (“SWRCB”) staff has participated in the 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 pursuant to Section 401 of the Clean Water Act (33 USC §1341[a][1]) (“401 Certification”) in connection with this relicensing proceeding and therefore can not execute this Settlement.

1.3      Effective Date of Settlement.  This Settlement becomes effective as of April 22, 2004.

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 Federal Power Act (FPA).

1.5            Definitions.

401 Certification: See Paragraph 1.2.4.

Accessible:  A recreation or other facility or site element that meets ADAAG.

ADAAG:  Americans With Disabilities Act Accessibility Guidelines.

ADR:  Alternative Dispute Resolution - see Paragraph 4.8.1.

AF:  acre-foot of water.

Basic Ramping Rate: See Appendix A, Section 1, Paragraph 6.

Basin Plan:  The Water Quality Control Plan for the Central Valley Region, the Sacramento and San Joaquin River Basins. 

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

Beneficial Use: Those uses designated as Beneficial Uses for the North Fork Feather River in the Basin Plan, as may be amended.

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.

CD:  Critically Dry Water Year Type as defined in Appendix A, Section 4.

cfs:  cubic feet per second.

Collaborative:  See Paragraph 1.2.3.

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.

CWA: (Clean Water Act) The federal Water Pollution Prevention and Control Act, 33 U.S.C. § 1251 et. seq., as may be amended.

Disputing Party; Disputing Parties:  See Paragraph 4.8.1.

Dry:  Dry Water Year Type as defined in Appendix A, Section 4.

Effective Date:  See Paragraph 1.3.

Emergency:  An event that is reasonably out of the control of the Licensee and requires Licensee to take immediate action, either unilaterally or under instruction by law enforcement or other regulatory agency staff, to prevent imminent loss of human life or substantial property damage.  An emergency may include, but is not limited to, natural events such as landslides, storms or wildfires, malfunction or failure of Project works, and recreation accidents.

ESA:  Federal Endangered Species Act, 16 U.S.C.§1531 et seq., as may be amended.

FPA:  Federal Power Act 16 U.S.C. §791a et seq. as may be amended.

FWS:  United States Department of the Interior Fish and Wildlife Service.

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

Heavy Maintenance: Maintenance or reconditioning that arrests deterioration and appreciably prolongs the life of the property.  From an accounting standpoint, the expenditures may be capitalized.  Examples include installing a new roof, new floor, or new siding, replacing electrical wiring or heating systems, repairing or replacing pipes, pumps or motors, repairing or maintaining government property threatened or damaged by heavy snow or ice, repairing or maintaining the paths, lands, walks, roads, or walls adjacent to other government-owned structures, and performing exterior painting or refinishing.

I&E: Interpretation and Education.

Inconsistent License:  A New Project License which (a) materially modifies the PM&E measures stated in Appendix A or Appendix B, (b) fails to include all PM&E measures in Appendix A that fall within the jurisdictional authority of the issuing agency, or (c) includes additional PM&E measures related to Resolved Subjects beyond those in Appendix A or Appendix B.

Licensee: The owner of the Project.  Currently the Licensee is Pacific Gas and Electric Company.

Minimum Streamflows:  Required minimum stream flows in the Belden and Seneca Reaches as provided in Appendix A, Tables A-1 and A-2.

NA:  not applicable.

NPS: United States Department of the Interior National Park Service.

NEPA:  National Environmental Policy Act, 42 U.S.C.§4321 et seq., as may be amended.

New Project License:  The new license issued by FERC for the Project at the conclusion of the current relicensing proceeding, including any mandatory conditions such as FPA Section 4(e) Conditions, 401 Certification conditions, and FPA Section 18 fishway prescriptions.

NFFR:  North Fork Feather River.

Normal: Normal Water Year Type as defined in Appendix A, Section 4.

Notice: See Paragraph 5.9.

Operational Maintenance: Maintenance or reconditioning that neither materially adds to the value of the property nor appreciably prolongs its life. The work serves only to keep the facility in an ordinary, efficient operating condition.  From an accounting or tax perspective, it is work that may be expensed.  Examples include interior painting, repair of broken windows, light bulb replacement, cleaning, unplugging drains, preventative maintenance, normal wear and tear, water, sanitation, road maintenance, greasing, servicing, inspecting, oiling, adjusting, tightening, aligning, sweeping, and incidental snow removal.

Party; Parties:  See Paragraph 1.1.

PM&E:  Protection, mitigation or enhancement measure, as provided in Section 10(j) of the FPA.

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

Project:  See Paragraph 1.2.1.

Pulse Flows:  Short term elevated levels of release from Project dams in amounts and durations specified in Appendix A, Section 1, Paragraph 3(A).

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, Paragraph 6.

Reconstruction:  Replacing or rebuilding a majority of a structure or recreation site, which has reached the end of its useful life or has been destroyed or damaged as a result of a natural event such as a landslide, storm or wildfire.  Reconstruction also includes improvements aimed at expanding the capacity of an asset or otherwise upgrading it to serve needs different from, or significantly greater than those originally planned.

Recreation Monitoring Indicators: A specific, measurable recreation or resource variable used to define key features of the desired recreation experience.

Recreation Monitoring Standard: Defines the minimum acceptable condition for a Recreation Monitoring Indicator.  Also referred to as a trigger, as once a standard is reached over a sustained period of time, this ‘triggers’ a potential management action.

Resolved Subjects:  See Paragraph 2.2.

RV: Self-contained recreational vehicle up to 40 feet in length.

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

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

Settlement: This Settlement Agreement between the Parties as described in Paragraph 1.1.

TRG:  The Technical Review Group established pursuant to Appendix A, Section 2, Paragraph 1.

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.

UNFFR:  Upper North Fork Feather River.

Water Quality Parties: The SWRCB, Regional Water Quality Control Board Central Valley Region, Plumas, FS, CDFG, FWS, and other Parties that request involvement in the water quality monitoring program described in this Settlement.  Water Quality Parties shall also include California Department of Water Resources (DWR) if it chooses to participate.

Water Year Type:  See Appendix A, Section 4.

Wet:  Wet Water Year Type as defined in Appendix A, Section 4.

2.   Purpose of Settlement

2.1      Purpose. The purpose of this Settlement is to resolve among the Parties all lake level and streamflow issues for ecological purposes, river-based recreational uses, and other Resolved Subjects in support of FS issuing its recommended mitigation 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 the Resolved Subjects and the Parties will request that the FERC use the provisions of this Settlement 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 recommended mitigation 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 excluding erosion and water temperature (see Table 2)

e)     Streamflow fluctuations from Project operations, including Ramping Rates

f)      Streamflow gaging for compliance monitoring

g)     Stream ecology monitoring

h)     Streamflow information for use by the public

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

j)      Administration of Settlement

k)     River sediment management

l)      Project reservoir operation and lands management principles

m)   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 considers Lake Almanor shoreline erosion an unresolved issue.

b)     Water Temperature:  Feasibility studies are currently underway to determine Project 2105 controllable factors associated with attainment and protection of cold freshwater habitat, a designated Beneficial Use of the North Fork Feather River.  All Parties await additional information in early 2004 from on-going modeling efforts related to the potential Prattville Intake Modifications, re-operation, or other structural changes (Canyon Dam Intake structure modification, modification to Caribou 2, etc.) to inform PM&E development and agreement on appropriate water temperature conditions.  CSPA has unresolved issues with temperature impacts on aquatic resources resulting from the continued operation of the Hamilton Branch and Project 2105 features including the Prattville outlet, Butt Valley Powerhouse, Butt Valley Reservoir, the Caribou 2 Powerhouse and Belden Reservoir in the Project vicinity and in downstream reaches of the North Fork Feather River to Oroville Reservoir.

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, and FS support a 40-year license; AW and NPS support a 40-year license if the Rock Creek Cresta (FERC No.1962) license is extended to coincide with the term of the New Project License.  CDFG supports a 30-year license.  If, however, the Rock Creek Cresta (FERC No. 1962) license were extended at the request of CDFG, then CDFG would support a license term for this Project that would coincide with the Rock Creek Cresta license term.  SWRCB and CSPA do not support extension of the FERC No.1962 license.  CSPA considers a 30-year license term appropriate for this Project and consistent with the FERC No. 1962 Rock Creek Cresta signed agreement.

e)     Angler Access Trail Improvement in Seneca Reach: CSPA considers this an unresolved issue.

f)      Wetland and Riparian Habitat Offsite Mitigation:  CSPA considers mitigation for effects of initial Project construction and continuing Project operations on wetland and riparian habitat through off-site mitigation in Humbug Valley and Mountain Meadows to be an unresolved issue.

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 nor shall be construed as a precedent with regard to any other proceeding or hydroelectric project.

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 existing 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 nor shall be construed to restrict or affect the continuing responsibilities of FERC or any Party, including FWS under the 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 and shall not be construed to address, affect, or apply to the Secretary of the United States Department of the Interior through the FWS independent authority under FPA Section 18 to prescribe fishways, or other Parties’ rights 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 hydroelectric 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 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 that are within the FS’s jurisdiction under FPA Section 4(e). The Parties further request that FS not include in its Section 4(e) Conditions, any requirements 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 CWA.  The Parties further request that the SWRCB not include conditions to the 401 Certification that are inconsistent with this Settlement.

            3.5       Measures Agreed to that will not be Included 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 for Settlement and 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 3.2, 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.  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.

4.2      Inconsistent License.  If FERC issues an Inconsistent License this Settlement shall be deemed modified to conform to the Inconsistent License, unless a Party provides Notice within 30 days after FERC issues an order approving the Inconsistent License that (a) the Party does not accept the Inconsistent License, and (b) the Party is initiating the ADR procedures stated in Paragraphs 4.8.1 - 4.8.2.  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 (ies) may, in addition, initiate the appeal procedures described in Paragraph 4.3.  If the New Project License does not contain all of the PM&E measures stated in Appendix A because FERC or one of the agencies with mandatory conditioning authority 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 or the agency with mandatory conditioning authority, provided the New Project License contains those PM&E measures stated in Appendix A over which FERC and the agencies with mandatory conditioning authority determine they do have jurisdiction and the New Project License is otherwise consistent with this Settlement.

            4.3      Appeal of Inconsistent License.   Any Party may petition for administrative rehearing and/or seek judicial review of any Inconsistent License.  The ADR requirements stated in Paragraphs 4.8.1 - 4.8.2 do not preclude any Party from timely filing for and pursuing administrative rehearing or judicial review of an Inconsistent License or any other New Project License article that relates to any subject not listed as a Resolved Subject.   However, the Parties shall follow the ADR procedures stated in Paragraphs 4.8.1 - 4.8.2 to the extent reasonably practicable while such appeal is being pursued.  If any Party or non-Party files for administrative rehearing or judicial review of an Inconsistent License, Licensee’s duties under this Settlement are suspended to the extent necessary to enable Licensee to comply with the Inconsistent License.  If a Party has filed for administrative rehearing or judicial review of an Inconsistent License and the Parties subsequently agree to modify this Settlement to conform to the Inconsistent License, the filing Party (ies) shall withdraw the request for rehearing or appeal, or recommend such withdrawal, as appropriate. This Settlement shall be deemed modified to conform to any final non-appealable administrative or judicial decision upholding a challenged Inconsistent License unless a Party provides Notice within 45 days after the date of the final decision that (a) the Party does not accept the Inconsistent License, and (b) the Party is initiating the ADR procedures stated in Paragraphs 4.8.1 - 4.8.2.  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.  If there is disagreement about the need for such support between the requesting Party and any Party, those Parties shall meet and confer within 5 days of the request being made and shall make Good Faith efforts to resolve the disagreement.

4.4      Cooperation Among Parties. The Parties shall cooperate in the performance of this Settlement and compliance with related articles in the New Project License.  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 and 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.

          4.4.1      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.

          4.4.2      Licensee Solely Responsible for Operations of Project.  Except as expressly provided in this Settlement, by entering into this Settlement none of the Parties, except for Licensee, have accepted any legal liability or responsibility for the operation of the Project.

           4.4.3            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.  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.

          4.4.4    FS 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 and 4.6.1. Additionally, FS’ obligations under and participation in this Settlement are fulfilled upon issuance of a New Project License containing final Section 4(e) Conditions that are consistent with Appendix A.  FS will remain a Party to Appendix B, Section 2, Paragraphs 1 and 2 until such time as the obligations contained within those paragraphs are fulfilled.  Notwithstanding any provision to the contrary, nothing in this Settlement is intended or shall be construed to create FS authority over a subject that is not within its existing authority.

          4.4.5    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.

4.5      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.

            4.6            Reopener or Amendment of New Project License.

          4.6.1      Reopener.  Except as required to fulfill statutory or regulatory responsibilities or as provided in Paragraph 4.6.2, 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-days 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 (FERC No. 1962), and Poe Project (FERC No. 2107), in connection with the relicensing proceedings for the latter project.

          4.6.2      Amendment.   Nothing in this Settlement is intended nor shall be construed to affect or limit the right of Licensee to seek to amend or surrender the New Project License, provided that Licensee may seek a Project license amendment or surrender which would be inconsistent with 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 that the amendment is in furtherance of the public interest under the FPA or other applicable law.  Prior to filing a proposed license amendment or surrender application which relates to a Resolved Subject or would otherwise be inconsistent with this Settlement, Licensee shall provide the Parties at least 90-days Notice of its intention to do so, and shall promptly consult with Parties responding within 30 days of such Notice regarding the need for and the purpose of the amendment or surrender.  Licensee shall not be required to comply with this 90-days 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 any application for a Project license amendment or surrender that relates to a Resolved Subject or is otherwise inconsistent with 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 or surrender that any Party has concluded would be inconsistent with this Settlement.  A Project license amendment or surrender that, as approved by FERC, would be inconsistent with this Settlement is subject to Paragraph 4.2. Further, a Project license amendment or surrender that, as approved by FERC, would be inconsistent with this Settlement may be considered by a Party as significant new information, allowing that Party to invoke the reopener provision in Paragraph 4.6.1.

4.7      Amendment of Settlement.  This Settlement may be amended at any time 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.

            4.8      Dispute Resolution.

          4.8.1      General.  Except to the extent that FERC, FS, or other agency with jurisdiction over a Resolved Subject has a procedure that precludes implementation of Paragraphs 4.8.1 - 4.8.3, all disputes among the Parties regarding any Party’s performance or compliance with this Settlement, including resolution of any disputes related to an Inconsistent License, shall be the subject of a non-binding alternative dispute resolution (“ADR”) procedure among the Disputing Parties, as stated in Paragraphs 4.8.1 and 4.8.2.  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 Paragraphs 4.8.1 - 4.8.3 is intended nor 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 accordance with its own procedure and applicable law.

                        4.8.2            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 regarding an Inconsistent License and the claim arises prior to rehearing or appeal, the Notice shall be made within the time periods specified in Paragraphs 4.2. If the dispute includes a claim regarding an Inconsistent License, and the claim arises during or after rehearing or appeal, the Notice shall be made within the time period specified in Paragraphs 4.3.  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 his or her 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.

          4.8.3      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 Paragraphs 4.8.1 and 4.8.2.  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 Paragraphs 4.8.1 - 4.8.3 is intended nor shall be construed to affect or limit the jurisdiction of any agency or court as established under applicable law.

4.9      Withdrawal From Settlement.

          4.9.1      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 Paragraphs 4.8.1 and 4.8.2 to attempt to resolve the dispute; or (b) a Party objecting to a final and non-appealable order issuing an Inconsistent License may withdraw once the Party has complied with the ADR procedures stated in Paragraphs 4.8.1 and 4.8.2 to attempt to resolve the objection.  In addition, Licensee may withdraw as provided in Paragraph 4.9.2.  In addition, when required to fulfill a 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 Paragraphs 4.8.1 and 4.8.2.  Finally, a Party may withdraw as provided in Paragraph 5.3.

          4.9.2      Withdrawal of Licensee from Settlement.  In addition to the provisions of Paragraph 4.9.1, Licensee may withdraw from this Settlement without first complying with the ADR procedures stated in Paragraphs 4.8.1 and 4.8.2 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 Section 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. Before withdrawing pursuant to this paragraph Licensee shall consult with the remaining Parties and make a Good Faith effort to resolve the issues that gave rise to Licensee’s decision to withdraw.   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.  This time period may be extended by mutual agreement of the remaining Parties.

           4.9.3    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 4.9.1 by giving Notice.

          4.9.4      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.

4.10      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.

            4.11      Addition of Signatory to Settlement. Upon the request by an individual, entity or agency to become a signatory to this Settlement, the Parties shall proceed in accordance with the provisions in Paragraph 4.7, Amendment of Settlement.

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 and results in a material deviation from the terms of this Settlement.  Such notice shall: (a) identify the event causing the delay or anticipated delay; (b) estimate the anticipated length of delay; (c) state the measures taken or to be taken to minimize the delay; and (d) 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 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.

6.2      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 April 22, 2004.

Pacific Gas and Electric Company

___________________________________________

by _________________________________________

      (Print)                          (Title)

United States Department of Agriculture Forest Service

___________________________________________

by _________________________________________

            (Print)                                      (Title)

California Department of Fish and Game

___________________________________________

by _________________________________________

            (Print)                                      (Title)

American Whitewater

___________________________________________

by _________________________________________

            (Print)                                      (Title)

Plumas County

___________________________________________

by _________________________________________

            (Print)                                      (Title)

Chico Paddleheads

___________________________________________

by _________________________________________

            (Print)                                      (Title)

Shasta Paddlers

___________________________________________

by _________________________________________

            (Print)                                      (Title)

California Sportfishing Protection Alliance

___________________________________________

by _________________________________________

            (Print)                                      (Title)

Mountain Meadows Conservancy

___________________________________________

by _________________________________________

            (Print)                                      (Title)

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.  The Parties recognize that the SWRCB’s 401 Certification may adjust Table A-2 Streamflows in June through September to achieve water temperatures protective of cold, freshwater habitat, as determined to be under reasonable control of Project operation. Minimum Streamflows shall commence within 60 days of the issuance of the New Project License, unless facility modifications are required.

Table A-1.  Releases from Canyon Dam

Table A-2.  Releases from Belden Dam

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 Project 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 Section 1 are subject to temporary modification if required by equipment malfunction, as directed by law enforcement authorities, or in Emergencies.  The requirements of this article are subject to temporary modification if required by an Emergency, as defined herein.  If the Licensee temporarily modifies the requirements of these articles, then the Licensee shall make all reasonable efforts to promptly resume performance of such requirements and shall notify SWRCB, FS and all Parties pursuant to Section 5.4.

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. 

3.  Pulse Flows in North Fork Feather River.   Licensee shall implement Pulse Flows and gravel monitoring 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 4, 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 CD.  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 NF-2 (Seneca Reach) or NF-70 (Belden Reach), or if rainbow trout spawning in the Seneca or Belden Reaches is observed and reported to Licensee by CDFG or FS.  In both the Seneca and Belden Reaches, the total volume of water released for each Pulse Flow event (including the water released during the ramp up and ramp down periods) shall not exceed 1,800 AF. Initially, the typical schedule will be to increase the streamflow at the Basic Ramping Rate 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 will be 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 Table A-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, the peak streamflow will be reduced using the Basic Ramping Rate until the Minimum Streamflow specified in Table A-2 above is reached, but no period of constant flow during the ramp down will be required in any month.

B.  Pulse Flow Monitoring (Gravel Monitoring Plan):  The Licensee shall, within 12 months of license issuance, develop and begin implementing a Gravel Monitoring Plan, in consultation with the FS, CDFG, FWS, SWRCB, and other Parties. The Gravel Monitoring Plan must be approved by the FS and filed with FERC before implementation.  The plan shall evaluate movement of sediment that occurs in the Belden and Seneca Reaches during scheduled Pulse Flow events and other flow events of similar magnitudes.  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 review of the data collected through the Gravel Monitoring Plan, the FS, CDFG, FWS, and SWRCB determine that the Pulse Flow regime outlined in Paragraph 3(A) above could be improved to enhance the availability and distribution of spawning-sized gravel or enhance riparian function, the agencies specified above may propose revisions to the magnitude, duration, and/or frequency of the scheduled Pulse Flows, subject to the following limitations: (a) any proposed revised Pulse Flow events shall continue to occur in the months of January – March of Normal and Wet years; (b) the total volume of water released for revised Pulse Flows in January – March of each year (including the water released during the ramp up and ramp down periods) shall not exceed 5,400 AF; (c) the total volume of water released for revised Pulse Flows in January shall not exceed 1800 AF but the agencies may defer the January and/or February flows to February or March; (d) any proposed revised Pulse Flows shall not exceed the safe operating capabilities of the existing outlet works; and (e) any proposed schedule for revised Pulse Flow releases shall take into consideration the forecasted Water Year Type as that forecast is developing each year, and no revised Pulse Flows shall be required in a month where the Water Year Type is forecasted to be Dry or CD.  If the agencies propose a revised Pulse Flow regime concept that meets these criteria, Licensee shall file the revised Pulse Flow regime with FERC.

4.  Pulse Flows in Lower Butt Creek.  If determined to be necessary pursuant to Paragraph 8 below, Licensee shall provide Pulse Flows in Lower Butt Creek 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 by the Licensee in consultation with FS, FWS, SWRCB, CDF&G and other 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 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 Project License.  Licensee shall record instantaneous 15-minute streamflow as required by USGS standards at NF-2 and NF-70.  The instantaneous 15-minute streamflow at these gages shall be at least 90 percent of the Minimum Streamflows set forth in Tables A-1 and A-2 above provided that the individual mean flows over a 24-hour period shall be equal to or greater than the Minimum Streamflow set forth in Table A-1 and A-2.

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 6.  Ramping Rates shall not apply to releases from Project Powerhouses (excluding Oak Flat Powerhouse) or Uncontrolled 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 Pulse Flows and recreation river flows, and all other releases from Canyon Dam and Belden Dam 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 identify the need for modifications to ramping rates, the Licensee shall consult with the FS, FWS, CDFG, SWRCB and other Parties to establish more appropriate rates.  New Ramping Rates for Pulse Flows shall not result in an increase in the total volume of water that is required to be released when the new Ramping Rates are applied to geomorphic Pulse Flows   The total volume of water released for a recreation river flow release shall not exceed 110% of the flow volume resulting from the releases specified in Section 2, Table B when the new Ramping Rates are applied.  For example, the volume of water released in addition to the Minimum Streamflow during a recreation river flow release in July of a Normal water year is 471 AF when the Basic Ramping Rate is applied to the required 750 cfs release amount set forth in Section 2, Table B.  If the Basic Ramping Rate is revised, the volume of water released in addition to the Minimum Streamflow for that same month when the revised Ramping Rate is applied shall not exceed 518 AF.  Depending upon how the Basic Ramping Rate is revised, the volume limitations described above may require a corresponding change in the magnitude or duration of the scheduled Pulse Flows or recreation river flow release.

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 (a) minimize the frequency of fluctuation in the river stage and (b) 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 FERC 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 No. 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 No. 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.