Appendix — Public Utility District No. 1 v. Confederated Tribes & Bands of the Yakima Indian Nation

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OS" 190008) #| FILE!

No. 84- ALEXANDER L. OTEVAR,

IN THE

Suprene Court of the United States

OCTOBER TERM, 1984

PUBLIC UTILITY DISTRICT No. 1 OF

CHELAN COUNTY, WASHINGTON,

Petitioner,

Vv.

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA INDIAN NATION, et al.,

Respondents.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Of Counsel: JAMES B. VASILE

Davip J. DorSEY Counsel of Record

DAVIS, ARNEIL, DORSEY, MICHAEL F.. HEALY

KIGHT & PARLETTE JILL E. GRANT

617 Washington Street NEWMAN & HOLTZINGER, P.C.

P.O. Box 2136 1615 L Street, N.W.

Wenatchee, Washington 98801 Washington, D.C. 20086

(509) 662-8551 (202) 955-6600

Attorneys for Petitioner

Public Utility District No. 1

of Chelan County, Washington

SNEED

WILSON - EPES PRINTING Co., INC. - 789-0096 . WASHINGTON, D.C. 20001

TABLE OF CONTENTS

I. JUDICIAL AND ADMINISTRATIVE OPIN-

EINE: chaicosrssinsiohinstiniaieniecsiinciogenibaniaiiiacnniaabsninbeagetaninenenes

II.

III.

Confederated Tribes and Rands of the Yak-

ima Indian Nation v. FERC, Nos. 82-7561,

-7562, -7038 (9th Cir., June 7, 1984) _..........

Federal Energy Regulatory Commission Or-

ders in Public Utility District No. 1 of Chelan

County, Washington, Project No. 943 ..........

1. Order Issuing New License (Major)

I iad ceeeeetnimininas

2. Order on Appeal (June 4, 1982) -...............

3. Order on Rehearing (November 23,

RSIS RCS aR ie oe

. Confederated Tribes and Bands of the Yak-

ima Indian Nation v. FERC, Nos. 82-7561,

-7562, -7038 (9th Cir., Oct. 30, 1984) _.........

NS citi cdttrreitierinnssetitrientnen Riiemitncnninitentnncinnntins

IE ciceieresniieninnithnmnsennndinnsannnantnenn

A. Public Utility District No. 1 of Chelan

County, Washington, Project No. 943, Order

Amending License (Major) (March 29,

BRR SPREE OE SA: ee Oc

. Federal Energy Regulatory Commission Or-

ders in the Mid-Columbia Proceeding ............

1. Order Consolidating Proceedings, Estab-

lishing Hearing and Requiring Prehear-

ing Conference (March 7, 1979) -...........

2. Order Approving Interim Offer of Settle-

ment as Modified (March 20, 1980) .........

3. Submission of Offer of Settlement.............

. Public Utility District No. 1 of Chelan

County, Washington, Project No. 943, Notice

of Issuance of Annual License (January 4,

| SOR RERE NES oe

Page

68a

74a

76a

80a

109a

12la

127a

150a

_—_—*

I. JUDICIAL AND ADMINISTRATIVE OPINIONS

A. Opinion Below

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 82-7561

82-7562

and 83-7038

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA INDIAN NATION,

Petitioner,

MALCOLM BALDRIGE, Secretary of Commerce,

Petitioner,

NATIONAL WILDLIFE FEDERATION,

Petitioner-Intervenor,

and

WASHINGTON STATE DEPARTMENT OF FISHERIES and

WASHINGTON STATE DEPARTMENT OF GAME,

Intervenors,

vs.

FEDERAL ENERGY REGULATORY COMMISSION,

ona Respondent,

PUBLIC UTILITY DISTRICT No. 1 OF

CHELAN COUNTY, WASHINGTON,

Intervenor.

On Review of an Order of the

Federal Energy Regulatory Commission

Argued and submitted December 8, 1983

OPINION

Before: ANDERSON and FLETCHER, Circuit Judges, and

EastT,* District Judge.

J. BLAINE ANDERSON, Circuit Judge:

On November 23, 1982, the Federal Energy Regulatory

Commission (FERC or Commission) upheld an order

granting Chelan County Public Utility District No. 1

(Chelan) a new license for the operation of Rock Island

Hydropower Project No. 943. The license is for a forty-

year term. The National Marine Fisheries Service of the

Department of Commerce (NMFS), the Washington State

Departments of Fisheries and Game (Washington), the

National Wildlife Federation (NWF), and the Con-

federated Tribes and Bands of the Yakima Indian Nation

(Yakima) petition this court for review. We grant the

petitions, set aside the license, and remand to FERC.

I BACKGROUND

A. Facts

The Rock Island Project was originally licensed on

January 21, 1930 by the Federal Power Commission. The

license authorized the construction of Rock Island Dam,

the first dam to span the Columbia River. In 1952,

Chelan became a joint licensee of the project and in 1980

became the sole licensee.

Rock Is!and originally had a single powerhouse. In

1974, the license was amended, allowing construction of a

second powerhouse. The second powerhouse was com-

pleted in 1979 and has increased the generating capacity

of Rock Island to 622.5 megawatts.

Rock Island is one of ten hydroelectric projects on the

Columbia River. Six of those projects are federally owned

and operated. Four, including Rock Island, are owned

and operated by three public utility districts pursuant to

license. These four projects utilize five dams and are

* The Honorable William G. East, Senior United States District

Judge, District of Oregon, sitting by designation.

located next to one another on the middle stretch of the

Columbia.

As with all dams, Rock Island has a significant impact

on the environment, especially anadromous fish runs. In

the Pacific Northwest, juvenile anadromous fish (chinook,

coho and sockeye salmon, and steelhead trout) utilize the

Columbia River and its tributaries to migrate to the

Pacific Ocean where they mature. As adults, the fish

travel the same route upstream to spawn. Rock Island

Dam has fish ladders and other facilities to assist adult

fish migrating upstream, but it has no comparable facili-

ties to enable the juvenile fish to pass through or around

the dam. The result is that a significant number of

juvenile salmon and steelhead die either as a result of

passing through the turbines or because of a phenomenon

called “holding over.” Holding over occurs when juvenile

fish prematurely end migration because of the delays in

traveling through impounded water and in trying to pass

around a dam. It is the petitioner’s concern with the

effect of Rock Island Dam on juvenile fish which forms

the basis of their appeal.

B. Procedure

The pertinent procedural background of this case be-

gins in 1973 when Chelan applied for and subsequently

received an amended license allowing it to construct the

second powerhouse. 51 F.P.C. 1141 (1974). At that

time, NMFS and Washington intervened and sought the

construction of passage facilities for juvenile fish as a

condition to the amended license. The Federal Power

Commission (FPC), whose functions were transferred to

the Federal Energy Regulatory Commission in 1977, did

not impose the conditions. Instead, it added “Article 48”

to the license which required Chelan to conduct studies in

conjunction with federal and state fishery agencies on

the effects of the project on the fishery. The result of

these studies was to be a revised “Exhibit S” (fish and

wildlife report). This report was to be submitted three

years after the second powerhouse was operational. Also,

Article 21 of the amended license contained a “reopener”

clause which reserved to FERC the right to require modi-

fication of the dam’s facilities and operations as deemed

reasonable and necessary for the development of fish and

wildlife resources.

In 1976, Washington petitioned the Commission to

modify operations at the Priest Rapids Dam, which is

two dams below Rock Island on the Columbia. Similar

petitions were filed requesting the modification of opera-

tions at four other dams, including Rock Island. All

these petitions sought the amendment of existing licenses

in order to implement fish protection measures. These

five dams are operated by three local public utility dis-

tricts, including Chelan. In 1979, the Commission con-

solidated these petitions into a single action, the Mid-

Columbia Proceeding. 6 F.E.R.C. { 61,210.

The Commission divided the Mid-Columbia Proceeding

into two phases. In Phase I, the Commission ordered an

expedited hearing to consider any interim measures nec-

essary to protect the Spring 1979 downstream migration

of smolts. In Phase II, the Commission ordered that the

usual procedures be followed to reach a long-term solu-

tion to the anadromous fish problem. In late 1979, the

parties to the Mid-Columbia Proceeding (NMFS, Wash-

ington, Oregon Department of Fish & Wildlife, Idaho

Department of Fish & Game, Chelan, and the other two

licensees) proposed an interim settlement agreement for

Phase II. FERC approved the settlement in March, 1980.

10 F.E.R.C. § 61,257. It provides for minimum flows and

spills at designated times until 1984. In the meantime,

a five-year study investigating a variety of fish protection

measures was to commence. Importantly, the Commission

recognized the inconclusive nature of the settlement, stat-

ing that it “is obviously an interim measure designed to

gather data rather than a final resolution of appropriate

flows.”

In 1977, Chelan applied for a new license, its original

fifty-year license being due to expire in January, 1980.

In July, 1978, FERC issued its public notice of the appli-

cation and asked interested parties to comment or inter-

vene by September 18, 1978. NMFS and Washington

petitioned to intervene, each noting that further studics

were necessary to gauge the effect of the recent modifi-

cations to Rock Island and that fish protection measures

should be incorporated into the new license. FERC

granted intervention.

In January, 1980, and January, 1981, FERC issued

annual licenses pending its final decision. Then, on May

13, 1981, the Director of the FERC Office of Electric

Power Regulation issued a new license to Chelan, allow-

ing it to continue operation of the project for another

forty years. 14 F.E.R.C. { 62,187. Apparently, NMFS

and Washington had not been contacted again by FERC

after being granted leave to intervene. Also, no hearings

were ever held on the relicensing question.

The Director was of the opinion that FERC’s obliga-

tions to consider fishery issues were being fulfilled by

the related Mid-Columbia Proceeding. He noted that the

new license contained a “reopener” clause which would

permit FERC to impose any necessary fish protection

measures once the continuing studies under the Mid-

Columbia Proceeding were completed, as well as those

done to complete the Revised Exhibit S. Finally, the

Director found that no environmental impact statement

was required prior to licensing because the continued op-

eration of the project did not involve any changes in the

status quo.

NMFS appealed the order to the Commission. Yakima

joined in the appeal. The National Wildlife Federation

filed a separate petition appealing the order. Washington

joined later in NMFS’s appeal. The petitioners claimed

that the order failed to comply with the Federal Power

Act (FPA), the Fish and Wildlife Coordination Act

(FWCA), the Pacific Northwest Power Planning & Con-

servation Act (PNPA), the National Environmental Pro-

tection Act (NEPA), and Commission regulations. In

essence, petitioners claim that fishery issues must be

considered prior to licensing and that they may not be

deferred to 2 separate proceeding. Without a hearing,

FERC issued its order on appeal, rejecting NWF’s and

Washington’s appeai as untimely and affirming th. Di-

rector’s opinion that fishery measures could be imple-

mented in the license once the Mid-Columbia Proceeding

and the Revised Exhibit S were completed. 19 F.E.R.C.

§ 61,223. The petitioners requested a rehearing and on

November 23, 1983, the Commission again rejected their

claims. 21 F.E.R.C. { 61,264. The petition for review to

this court. followed.

ll. JURISDICTION

NMFS, having filed a petition for review in this court

within sixty days of the denial of its application for re-

hearing by the Commission, is properly before this court.

16 U.S.C. § 825l(b). Chelan and Washington were

granted leave to intervene in the appeal pursuant to

Fed. R. App. P. 15(d). No one contests the order grant-

ing intervention to these interested parties.

Yakima and NWF also filed timely petitions for re-

view. FERC argues that this court must dismiss these

petitions because NWF and Yakima failed to intervene

in the license proceeding prior to issuance of the license

order. Neither NWF nor Yakima qualify, FERC states,

as a “party to a proceeding under this chapter aggrieved

by an order issued by the Commission,” 16 U.S.C. § 825/

(b), entitling them to seek review in this court.

We disagree. Under the regulations then in force, any

“interested person” could appeal staff action. 18 C.F.R.

§7(d) (1981). Both Yakima and NWF appealed the

full

FERC. Yakima then filed a timely joint appeal with

NMFs. FERC considered the issues raised by Yakima

in its order on appeal. Under these

must conclude that Yakime qualifies a

FERC proceeding and therefore is entitled to be before

Although NWF’s situation is more questionable, we

need not decide whether its petition for review before

this court in No. 82-7562 wes timely since its motion to

intervene in the appeal to this court was granted 0.

82-7561. NWF is sn interested entity and pursuant to

a prebriefing conference order it briefed one issue that

had been properly raised before the Commission and that

was before this court in Nos. 82-7561 and 7038. Neither

the court nor the parties would be deprived of briefing

on any of the substantive issues nor would any

rights be prejudiced were NWF’s petition dismissed. Ac-

cordingly, we dismiss NWF’s petition for review as moot.

Ill. FERC’S STATUTORY OBLIGATIONS ON

RELICENSING

The issue in this case can be stated rather simply:

Can the Commission satisfy its obligations under the

relevant siatutes by deferring consideration and imple-

mentation of fishery protection measures until after

licensing? While we are sympathetic with FER©’s stated

practical desire to resolve the fishery questions in a

comprehensive proceeding covering all five of the Mid-

Columbia Dams, we hold that the statutes require FERC

to examine fishery issues before issuance of a license.

No factual questions are involved in this case. Only

questions of law are presented, which generally receive

de novo review. However, an agency interpretation of

the statute it administers is entitled to deference to the

extent the interpretation is reasonable and comports with

the intent of the statute. Committee for an Independent

P-I v. Hearst Corp., 704 F.2d 467, 473 (9th Cir.), cert.

denied, —— U.S. —— (1983); see City of Centralia,

Washington v. FERC, 661 F.2d 787, 790 & n.8 (9th Cir.

1981).

A. Statutory Obligations to Consider Fishery Issues

Prior to Licensing

NMFS asserts, and FERC does not dispute, that under

the Federal Power Act FERC must make the same in-

quiry into fishery issues in relicensing as required when

initially licensing a project. Section 15(a) of the FPA,

16 U.S.C. § 808(a), governs license renewals and pro-

vides that “the [C]ommission is authorized to issue a new

license to the original licensee upon such terms and condi-

tions as may be authorized or required under the then

existing laws and regulations, or to issue a new license

under said terms and conditions to a new licensee” if the

United States does not exercise its right to take over the

project at the expiration of the original license. No

federal take-over is involved in this action and no new

entity is seeking the right to operate Rock Island.

Section 15 and the related federal take-over provision,

section 14, 16 U.S.C. § 807, were amended in 1968. See

Pub. L. No. 90-451 §§ 2, 3, 82 Stat. 617 (1968). The

house report on the amendments makes it plain that Con-

gress intended the Commission to make the same inquiries

on relicensing as on initial licensing:

It provides that the Commission, no earlier than 5

years before the expiration of a license for a project

subject to recapture, shall entertain applications for

a new license. Just as in the case of original licensing

the controlling criteria would be the comprehensive

development standard of section 10(a) of the Fed-

eral Power Act. In view of this fact the relicensing

proceeding would be deemed to involve “initial li-

censing” within the context of the Administrative

Procedure Act rather than “license renewal.”

H.R. Rep. No. 1643, 90th Cong., 2d Sess., reprinted in

1968 U.S. Code Cong. & Ad. News 3081, 3084. The pro-

posed amendments were submitted to Congress by the

Chairman of the Federal Power Commission, Lee C.

White. His letter, incorporated into the house report,

confirms and supports the report’s interpretation of the

Commission’s duties on relicensing, and notes that in

addition to power production, comprehensive development

includes the consideration of fish and wildlife conserva-

tion, among other public uses. Jd. at 3089.

In turn, section 10(a), 16 U.S.C. § 803(a), requires

the Commission to consider all beneficial public uses when

it grants a license. In pertinent part, this subsection

conditions the grant of a license on the determination

that the project

will be best adapted to a comprehensive plan for im-

proving or developing a waterway or waterways for

the use or benefit of interstate or foreign commerce,

for the improvement and utilization of water-power

development, and for other beneficial public uses,

including recreational purposes. .. .

In Udall v. FPC, the Supreme Court recognized that the

examination of fish and wildlife resources is mandated

10a

as part of the consideration of “recreational purposes.”

See 387 U.S. 428, 440 (1967). As stated by the Court:

The test is whether the project will be in the public

interest. And that determination can be made only

after an exploration of all issues relevant to the

“public interest,” including .. . the preservation of

anadromous fish for commercial and recreational

purposes. ...

Id. at 450; see also Clifornia v. FPC, 345 F.2d 917

(9th Cir.), cert. denied, 382 U.S. 941 (1965); Scenic

Hudson Preservation Conference v. FPC, 354 F.2d 608

(2d Cir. 1965), cert. denied, 384 U.S. 941 (1966).

The law, then, is well defined: Prior to issuance of a

new license, FERC must study the effect of a project on

the fishery resource and consider possible mitigative

measures. It is undisputed that in this proceeding the

FERC did not undertake this obligation prior to issuing

the license. Instead, it deferred full consideration of fish

protection in two ways. First, it did not require Chelan

to submit an “Exhibit S” (fish and wildlife report) as

part of its application nor prior to issuance of the

license, as required by FERC regulation. 18 C.F.R.

§ 4.41 (1981). This exhibit is the primary method used

by the Commission to study the project’s effect on wild-

life (see Part B, infra). Second and most critically, it

deferred study and resolution of fish protection issues to

the Mid-Columbia Proceeding. FERC argues that de-

ferring consideration of fishery issues is well within its

discretion. The statute and the gloss put upon it by the

courts warrant another conclusion. FERC must consider

fishery issues before, not after, issuance of a license.

_ Udall, 387 U.S. at 450; see Scenic Hudson, 354 F.2d at

620.

FERC cites Vermont Yankee Nuclear Power Corp. v.

NRDC, 435 U.S. 519, 543-544 (1978) as support for the

proposition that an agency has discretion to modify its

lla

procedures such as done in this case. The opinion in

Vermont Yankeee, recognized, however, that such discre-

tion may be circumscribed by statutory mandate. Id. at

549 n.21. As stated, the statute requires that public

interest concerns be evaluated as a condition to licensing.

Cases discussing the environmental impact statement

requirements of the National Environmental Policy Act,

42 U.S.C. § 4332, are instructive. In Cady v. Morton,

527 F.2d 786, 794 (9th Cir. 1975), the court stated that

“the filing of an EIS should precede rather than follow

federal agency action. . . .” (citations omitted). The

rationale behind this rule is that inflexibility may occur

if delay in preparing an EIS is allowed: “After major

investment of both time and money, it is likely that more

environmental ham will be tolerated.” Environmental

Defense Fund v. Andrus, 596 F.2d 848, 853 (9th Cir.

1979).

We see no reason why the law should be different under

the Federal Power Act. The FPA imposes obligations

similar to NEPA. In essence, the court reviews the

license with particular concern to see that the Commis-

sion has fulfilled all its procedural obligations that must

be undertaken prior to its issuance. In this case those

procedural obligations include, among other things, pre-

licensing consideration of fishery issues. In Scenic Hud-

son, 354 F.2d 608, the Second Circuit was presented with

an analogous situation involving the correct review of the

Commission’s decision to license a hydropowe® project.

The court overturned the license on the basis the Com-

mission failed to fully study alternatives to the proposed

project and possible fish protection measures as part of

its determination the license would be in the public in-

terest. We agree with Scenic Hudson’s discussion of the

court’s reviewing function:

This court cannot and should not attempt to sub-

stitute its judgment for that of the Commission.

But we must decide whether the Commission has

12a

correctly discharged its duties, including the proper

fulfillment of its planning function in deciding that

the “licensing of the project would be in the overall

public interest.” The Commission must see to it that

the record is complete. The Commission has an

affirmative duty to inquire into and consider all

relevant facts.

854 F.2d at 620 (citations omitted); cf. California v.

FPC, 345 F.2d 917 (9th Cir. 1965) (license upheld

where FPC gave fishery issues due consideration).

FERC argues that the procedure it is utilizing fo.

Rock Island best comports with its statutory mandate to

consider the “comprehensive” picture in its decision to

license. See 16 U.S.C. § 803(a). Deferral to the Mid-

Columbia Proceeding, FERC states, serves this goal be-

cause in it fish protection measures for five dams on

the central Columbia River are being studied simultane-

ously. We agree it is important that fishery issues be

addressed with a view to the total system: Storage and

spill of one dar iece‘sarily affects the operation of other

dams. We do not agree, however, that this makes FERC’s

procedure in this case proper. First, as we have re-

peated, the statute and the cases construing it require

prelicensing consideration of fishery issues. Second, Sec-

tion 15(a) of the FPA, 16 U.S.C. § 808(a), expressly

provides for the issuance of annual licenses to the prior

licensee if the license expires pending the relicensing de-

termination. See Lac Courte Oreilles Band of Lake Su-

perior Chippewa Indians v. FPC, 510 F.2d 198, 206-207

(D.C. Cir. 1975). In fact, FERC issued annual licenses

to Chelan in 1980 and 1981. Clearly, it could have con-

tinued to do so if it wished to incorporate the results of

the Mid-Columbia Proceeding in the new license. Through

an annual license the status quo would have been main-

tained. Id. No harm would accrue to the licensee, as

annual licenses must incorporate the terms of the prior

license. 16 U.S.C. § 808(a).

13a

We also find FERC’s reliance on California v. FPC,

345 F.2d 917 (9th Cir. 1965), misplaced. That case does

not stand for the proposition that FERC may defer

fishery issues for later resolution. Unlike here, in Cali-

fornia the Commission undertook extensive studies of the

effect of the New Don Pedro Dam on the Tuolumne River

fishery prior to issuance of the license. Specific fish pro-

tection measures were incorporated into the license. Id.

at 921. The license also included a “reopener clause”

which gave the Commission the right to modify those

conditions in twenty years if further study warranted it.

This court upheld the Commission’s use of the reopener

clause. Jd. at 924-925. Simply because the new Rock

Island license contains a similar clause, reserving FERC

the right to incorporate the results of the Mid-Columbia

Proceeding, does not mean California allows FERC to

issue a license before consideration of fishery issues.

We also find unpersuasive FERC’s argument that the

procedure it used offers more protection for the fishery

than simply issuing annual licenses. This argument is

based on FERC’s incorporation of the Mid-Columbia

settlement agreement’s minimum stream flow conditions

into the new Rock Island license. The same protections

could have been added to an annual license. An annual

license must contain the same terms as the expired

license, 16 U.S.C. § 808(a), but the Rock Ysland license,

as amended in 1974, contained a “reasonable modifica-

tions” clause in Article 21. The Mid-Columbia Proceed-

ing interim settlement agreement could have been in-

corporated through that clause.

While we see no substantial benefit from the procedure

used by FERC, we do see a distinct possibility for harm

resulting from utilization of a procedure designed to im-

pose fish protection measures in a modification proceed-

ing. First, a modification proceeding is not the same as

a relicensing proceeding. Subject to the requirement that

its decision be in the public interest, the Commission has

l4a

broad discretion to impose fish protection conditions when

it issues a new license. Notwithstanding a reopener

clause, FERC may not “amend” a license in a modifica-

tion proceeding without the licensee’s consent. 16 U.S.C.

§ 799. Plainly, therefore, the Commission’s discretion is

curtailed in a modification proceeding. Also, as a prac-

tical matter, the method used by FERC here removes the

incentive for a speedy and efficient resolution of fishery

issues. If these issues must be examined and resolved

prior to licensing, the licensee has an incentive to submit

all the required data as quickly as possible. The same in-

centive is not present in the procedure used here where

fishery issues are deferred to the future. The licensee may

very well attempt to forestall the imposition of protection

measures because these might affect the project’s power

production. See Environmental Defense Fund v. Andrus,

596 F.2d at 853.

On the basis it violated the Federal Power Act, we

reverse the order granting Chelan’s license to operate

Rock Island Dam and remand to the Commission. Our

resolution of this case on the FPA question makes it un-

necessary to discuss the Pacific Northwest Electric Power

Planning & Conservation Act (PNPA) and the Fish and

Wildlife Coordination Act (FWCA), in detail.

We note briefly that these acts place additional man-

dates on the Commission in a relicensing proceeding. The

purpose of the FWCA is to ensure that “wildlife conser-

vation shall receive equal consideration and be coordi-

nated with other features of water resource development

programs. .. .” 16 U.S.C. §661 (emphasis added).

“Equal consideration” is insured through the requirement

that FERC and other agencies responsible for manage-

ment of natural resources consult with federal and state

wildlife agencies prior to authorizing a project. 16

U.S.C. § 662; see Udall v. FPC, 387 U.S. at 443-444.

The PNPA is specifically directed to the Columbia River

system and, unlike the FWCA, it imposes substantive as

lda

well as procedural obligations on FERC. In pertinent

part, it requires federal agencies responsible for manag-

ing hydropower projects on the Columbia system to

exercise such responsibilities consistent with the

purposes of this chapter and other applicable laws,

to adequately protect, mitigate, and enhance fish and

wildlife, including related spawning grounds and

habitat, affected by such projects or facilities in a

manner that provides equitable treatment for such

fish and wildlife with the other purposes for which

such system and facilities are managed and operated.

16 U.S.C. § 839b(h) (11) (A) (i) (emphasis added). One

purpose of the PNPA is to place fish and wildlife con-

cerns on an equal footing with power production. H.R.

Rep. No. 976 (Part I), 96th Cong. 2d Sess. 49, reprinted

in 1980 U.S. Code Cong. & Ad. News 5989. In this re-

spect, the PNPA supplements the Federal Power Act.

Id. at 57. We have no doubt that if FERC failed its

Federal Power Act obligation to consider fishery issues

prior to licensing, it concoznitantly failed to meet its ob-

ligation to give fish “equal consideration” under the

FWCA and “equitable treatment” under the PNPA.

B. The Exhibit S and Consultation Reqrirements

NMFS also argues that FERC violated its own regu-

lations when it issued the license before Chelan had sub-

mitted “Exhibit 8,” a report on the projected effect of

the dam on fish and wildlife resources. NMFS, as well

as the other petitioners, makes a related claim that

FERC violated its duty to consult with fishery agencies

and Indian tribes prior to license issuance. We agree,

notwithstanding FERC’s assertion that it has the discre-

tion to modify the filing requirements in its regulations.

At the time of Chelan’s application for a new license,

1977, FERC regulations provided that “there shall be

16a

filed as part of an application for license the following

exhibits.” What follows is a list, including Exhibit S,

which is

a report on the effect, if any, of the project upon

the fish and wildlife resources in the project area

or in other areas affected by the project and pro-

posals for measures considered necessary to conserve

and, if practicable, to enhance fish and wildlife re-

sources affected by the project. The exhibit shall

include functional design drawings of any fish lad-

ders proposed to be constructed in compliance with

section 18 of the Federal Power Act, such other fa-

cilities or developments as may be necessary for the

protection, conservation, improvement and mitiga-

tion of losses of fish and wildlife resources in ac-

cordance with section 10(a) of the Act, and cost

estimates for such facilities and developments. The

Applicant shall prepare this exhibit on the basis of

studies made after consultation and in cooperation

with the U.S. Fish and Wildlife Service, Department

of the Interior, and appropriate state fish and wild-

life agencies and in the case of public lands, advise

Federal agencies having jurisdictional responsibili-

ties therefor of its proposed plans. The exhibit shall

include a statement on the nature and extent of

Applicant’s consultation and cooperation with the

above agencies. To the extent those aspects of fish

and wildlife related to recreation are covered in Ex-

hibit R, a specific reference to Exhibit R will suffice.

18 C.F.R. § 4.41 (1976).

It is a well-known maxim that agencies must comply

with their own regulations. E.g., Memorial, Inc. v.

Harris, 655 F.2d 905, 910-911 n.14 (9th Cir. 1980). We

do not agree with FERC’s claim that Exhibit S is the

type of filing requirement that an “agency may relax,

modify or waive... .” Papago Tribal Utility Authority

v. FERC, 628 F.2d 235, 242 (D.C. Cir.), cert. denied,

17a

449 U.S. 1061 (1980) (citations omitted). Exhibit S is

plainly designed to facilitate FERC’s duty to consider

fishery issues prior to licensing. This is not the same as

the situation in Papago, which involved the reviewability

of an order rejecting a motion to overturn a rate filing

for patent defects. The Papago court found the order

nonreviewable because it involved a requirement that was

an aid to the Commission’s exercise of its discretion over

the decision to accept a rate filing. Exhibit S, however,

is tied to FERC’s obligation to investigate fishery matters

prior to licensing. Also, this is not a situation where the

parties are contesting the adequacy of the report—none

was filed. No alternative method of consideration of

fishery information was utilized.

The Exhibit S report is directly related to FERC’s

duty of consultation. The FWCA and the PNPA each

require FERC to consult with fishery agencies and, in

the case of the PNPA, Indian tribes prior to licensing.

16 U.S.C. § 662(a) (FWCA); 16 U.S.C. § 839b(h) (11)

(B) (PNPA). Exhibit S aids that obligation because it

is to be prepared by the applicant “on the basis of

studies made after consultation and in cooperation with

the U.S. Fish and Wildlife Service, Department of the

Interior, and appropriate state fish and wildlife agen-

cies.” 18 C.F.R. § 4.41 (1981). The report must also

include statements on the nature and extent of the co-

operation and consultation between the applicant and the

agencies. Id.

It is not enough the FERC gave notice of Chelan’s ap-

plication to the agencies and Indian tribes. The consulta-

tion obligation js an affirmative duty. Also, it is safe to

say that the respective fishery agencies believed the con-

sultaticn precess would take place in the preparation of

Exhibit &. Instead, however, FERC issued the license

before the exhibit was submitted.

The Conimission argues that it was proper for it to

defer the Exhibit S report pending the completion of

18a

additional studies. Additional studies are necessary,

FERC states, because the full impact of the modifications

authorized at Rock Island in 1974 have not yet been

sufficiently analyzed. That may well be true. But to the

extent those studies are necessary, FERC did not have to

issue the permanent license when annual licenses could

have been used pending their completion.

The Exhibit S and consultation requirements are the

primary means by which FERC is to comply with its

duty to examine fishery issues prior to licensing. FERC’s

failure to follow those requirements further supports

reversing the license order and remanding to the Com-

mission.

C. Environmental Impact Statement

NMFS also argues that FERC was required to prepare

an environmental impact statement (EIS) prior to re

licensing Rock Island Dam. We agree.

Having been built in the 1930’s, Rock Island predated

the National Environmental Protection Act (NEPA) and

its requirements for preparation of impact statements

for “major federal actions significantly affecting the

quality of the human environment.” 42 U.S.C. § 4332(2)

(ec). An EIS was, however, prepared in 1974 when the

modifications to the dam were proposed. The question

before us is whether an EIS is required prior to the

decision to relicense the project. Surprisingly, we have

found no cases which have addressed this issue in the

context of relicensing hydropower projects by FERC.

“{Ajn agency’s determination that a particular project

does not require the preparation of an EIS is to be up-

held unless unreasonable.” Foundation for North Ameri-

can Wild Sheep v. Department of Agriculture, 681 F.2d

1172, 1177 (9th Cir. 1982) (footnote omitted) (citing

Portela v. Pierce, 650 F.2d 210, 213 (9th Cir. 1981);

City & County of San Francisco v. United States, 615

19a

F.2d 498, 500 (9th Cir. 1980) ; City of Davis v. Coleman,

521 F.2d 661, 673 (9th Cir. 1975)). We may conclude

the agency acted unreasonably if substantial questions

are raised concerning whether the project may signifi-

cantly affect the quality of the human environment. Jd.

at 1178.

There is no doubt that if this action involved the deci-

sion to license new construction of a hydropower project

such as Rock Island, an EIS would be required. See

Green County Planning Board v. FPC, 455 F.2d 412

(2d Cir.), cert. denied, 409 U.S. 849 (1972). FERC

argues that this situation is different because the dam

has been in operation for fifty years. FERC relies on

cases which hold that when there will be no change in

the status quo, such that the action is simply “a phase

in an essentially continuous activity,” no EIS is neces-

sary. City & County of San Francisco, 615 F.2d at 501;

see Burbank Anti-Noise Group v. Goldschmidt, 623 F.2d

115, 116-117 (9th Cir. 1980) ; cert. denied, 450 U.S. 965

(1981); Committee for Auto Responsibility v. Solomon,

603 F.2d 992, 1003 (D.C. Cir. 1979); cert. denied, 445

U.S. 915 (1980); Westside Property Owners v. Schles-

inger, 597 F.2d 1214, 1217-1218 (9th Cir. 1979). Rock

Island was relicensed under the same terms as the prior

license and therefore FERC argues that there has been

no change in the status quo. Viewed narrowly, relicensing

fits within the FERC’s characterization and comports

with the cases cited above: Burbank Anti-Noise Group

(no EIS is required when federal government aided the

purchase of an existing airport by private group) ; City

& County of San Francisco (no EIS required when Navy

leased, with essentially the same terms as the prior lease,

an existing shipyard to a private firm); Committee for

Auto Responsibility (lease of existing parking lot to

private firm did not change the status quo); Westside

Property Owners (formalization after enactment of

NEPA of long-existing agreement and program between

tion that FERC should have at its disposal all pertinent

information, including that provided in an EIS.

If the United States does not exercise its right of take-

over, the “(C)ommission is authorized to issue a new

Both the consideration of what conditions te attach to

a new license and the questions involved in determining

2ia

whether a non-power license is necessary necessitate the

information prepared in an environmental] impact state-

ment.

The purposes of the procedure imposed by Congress on

relicensing underscore the necessity for an EIS. As the

Commission stated when it proposed the amendments to

the relicensing procedures in 1968:

The Congress limited the maximum term of any

license issued by the Federal Power Commission wo

50 years and thereby preserved for the Nation, act-

ing through subsequent Congresses, a full opportunity

to reevaluate the best use of each project upon ex-

piration of the license. We now recommend that

Congress fix appropriate procedures for the reevalua-

tion of each project in light of contemporary and

prospective public needs.

Letter from Lee C. White, supra, at 3086. Thus, the

FERC regulations governing the preparation of an EIS

See -

Defense Fund v. Andrus, 596 F.2d 848, 852 (9th Cir.

1979); Port of Astoria v. Hodel, 595 F.2d

(9th Cir. 1979). Simply beeause the same resource had

not make

for a forty-year period. See Hodel, 595 F.2d

Nevertheless, FERC argues that it has

NEPA because the only environmental fact

22a

is fish protection and that question is being addressed in

the Mid-Columbia Proceeding. As noted above, however,

an EIS must be prepared before a project is approved,

and the Mid-Columbia Proceeding does not satisfy that

obligation. See Environmental Defense Fund v. Andrus,

596 F.2d at 853; Cady v. Morton, 527 F.2d at 794 & n.4.

In sum, we conclude that the FERC acted unreason-

ably when it issued the license to Chelan without first

preparing an EIS.

IV. INDIAN FISHING RIGHTS

Yakima contends that the licensing violated its treaty

fishing rights. Yakima states further that a resolution

of the statutory issues may make it unnecessary to reach

this issue. We accept Yakima’s offer to defer considera-

tion of this question until there is a subsequent appeal,

if any, after our remand to FERC. We believe it proper

for FERC to be first to address Yakima’s claims after

development of a full record. See FPC v. Transcontinen-

tal Gas Pipe Line Corp., 423 U.S. 326, 332-333 (1976).

V. CONCLUSION

The Commission failed to meet its statutory obliga-

tion to consider fishery issues prior to licensing. It also

unreasonally failed to prepare an EIS prior to licensing.

Accordingly, the

PETITION FOR REVIEW IS GRANTED and the

ORDER IS SET ASIDE.

23a

B. FERC Orders Below

14 FERC { 62,187

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Project No. 943

PUBLIC UTILITY DISTRICT No. 1

OF CHELAN COUNTY

ORDER ISSUING NEW LICENSE (MAJOR)

(Issued May 18, 1981)

Public Utility District No. 1 of Chelan County (Chelan)

filed an application for a license under Part I of the

Federal Power Act (Act) for the continued operation

and maintenance of the Rock Island Project No. 943."

The project is located on the Columbia River, a navigable

waterway of the United States, in Chelan and Douglas

Counties, Washington, and occupies lands of the United

States.

Notice of the application has been published and com-

ments have been received from interested Federal, State,

and local agencies. The Washington Department of Fish-

eries, the Washington Department of Game, and the

National Marine Fisheries Service were granted inter-

vention. The significant concerns of the intervenors and

commenting agencies are discussed below.

1 Authority to act on this matter is delegated to the Director,

Office of Electric Power Regulation under 18 C.F.R. § 375.308

(1980), as amended by 46 Fed. Reg. 14119 (1981).

24a

Project Description and History

The Federal Power Commission issued a license on Jan-

uary 21, 1930, to the Washington Electric Company for

the construction and operation of the Rock Island Project

No. 943. On June 30, 1931, the license was transferred

to the Puget Sound Power and Light Company (Puget),

and on July 31, 1952, the license was amended to include

the Public Utility District No. 1 of Chelan County

(Chelan) as a joint Licensee for the Rock Island Project.

Puget was eliminated as a joint licensee by order issued

July 17, 1980. In 19538, the project installed capacity

was increased to a total of 212.1 MW, and in 1974, the

authorized project installed capacity was increased to a

total of 622.5 MW.

The constructed Rock Island Project consists of: 1) a

135-foot high and 2,524-foot long concrete gravity dam;

2) an 1,800-acre and 20-mile long reservoir, providing

130,000 acre-feet of gross storage; 3) the left bank pow-

erhouse having a total installed capacity of 212.1 MW;

4) the right bank powerhouse having a total installed

capacity of 410.4 MW; 5) six 115-kV transmission lines;

and (6) appurtenant facilities. A more detailed project

description is contained in ordering paragraph (B).

Safety and Adequacy

The project structures are safe against sliding and over-

turning under normal conditions of maximum headwater

elevation 614.1 feet, normal tailwater elevation 571.6

feet (U.S.G.S. datum) plus earthquake loading of 0.1

g, and under flood conditions with headwater elevation

of 619.5 feet and tailwater elevation of 606.2 feet. The

San Francisco Regional Office reported that the project

structures were in good condition and were general_y

well maintained. The most recent Part 12 Inspection Re-

port also concluded that the project works were safe and

adequate and made no recommendation with regard to

safety of the project.

eo a ee

25a

The spillway design flood is 960,000 cfs and the Probable

Maximum Flood (PMF) at Rock Island is estimated to

be 1,425,000 cfs. At the PMF, the Rock Island Reservoir

would surcharge to about elevation 632 feet and the tail-

water would be at elevation 623 feet. The differential

between headwater and tailwater would be about 13.5

feet when discharging the spillway design flood of 960,000

cfs and about 9.0 feet when discharging the PMF of

1,425,000 cfs. In view of the comparatively small head

differential and the insignificant amount of storage that

would be released, there would be slight additional haz-

ard to downstream areas in the event of failure of the

dam during the occurrence of the PMF. The spillway

is adequate.

The Board of Consultants, formed to monitor the con-

struction of the second Rock Island powerhouse, met from

May 13 to 15, 1980, for the final review of the engineer-

ing and construction of the project. In the final report,

the Board recommended that the Licensee continue the

structural monitoring plan, which provides for monitor-

ing of dam alignment and settlement, uplift, relief drains

both for flows and pressures, post-tensioned anchors, and

for regular inspection of the “loose bolting’ attachment

of the trash racks. Article 41 requires the Licensee to

continue the structural monitoring plan.

It is concluded that the project, under the conditions of

this license, is safe and adequate.

Fish and Wildlife Resources

Anadromous fish migrating past the dam include chinook,

coho, and sockeye salmon, steelhead trout, and Pacific

lamprey. Fishways allow for the upstream migration of

anadromous salmonids to their spawning areas in the

upper reaches of the Columbia River and its tributaries.

The State of Washington Department of Fisheries (Fish-

eries), the State of Washington Department of Game

26a

(Game), and the National Marine Fisheries Service

(NMFS) are concerned with the effect of the project on

the downstream migration of juvenile anadromous sal-

monids, on the upstream migration of anadromous fish,

and on the limited fish spawning habitat within the proj-

ect boundary. These agencies contend that reduced flows

and insufficient spills from the project adversely affect

juvenile salmonids by delaying the seaward migration

through the reservoir, increasing predation, and increas-

ing turbine mortality. Anadromous salraonids must also

pass the project to reach upstream spawning and rear-

ing areas. In addition, Fisheries and Game are concerned

about the reduction in harvest of anadromous and resi-

dent fish species and the effects of the project on water

quality.” Fisheries, Game, NMFS, and the U.S. Depart-

ment of the Interior believe that mitigative measures to

lessen the impacts of the project on anadromous sal-

monids and resident fish populations should be incor-

porated into any new license issued, and should include,

among other things, iand acquisition and habitat man-

agement for the benefit of wildlife species and the im-

provement of fishing opportunities at the project.

Hearings and settlement conferences in Docket No. E-

9569 on the issues of minimum flows and of spills from

the project necessary to protect juvenile anadromus fish

resulted in the filing of a settlement agreement on De-

cember 31, 1979, which was approved by the Commission

in March 1980. Pursuant to this agreement, Chelan,

along with Douglas County PUD and Grant County

PUD, is conducting studies to investigate the effect of

the project on the downstream migration of juvenile sal-

monids, the methods ef improving protection and natural

production of salmonids, and the methods of improving

and increasing semi-natural and artificial production of

2The Washington Department of Ecology has issued a water

quality certificate for the project, in accordance with Section 401

of the Federal Water Pollutior. Control Act.

27a

salmonids from the Mid-Columbia River. Final reports

will be submitted to FERC and applicable agencies for

review.

Article 48 of the prior license required Chelan to conduct

extensive pre- and post-flooding studies to determine the

effects of the operation of the second powerhouse and of

raising the reservoir level, on Columbia and Wenatchee

River fish and wildlife. Studies will also determine the

effectiveness of the fish passage facilities, the flow re-

quirements for anadromous fish, and the extent of tur-

bine mortality. Recreational fishing will be surveyed and

water quality will be monitored. Seasonal wildlife use of

project lands, the amount of wildlife-oriented recreation,

and economic and social benefits derived from the con-

sumptive and non-consumptive use of wildlife will also

be assessed. A final report will compare pre-flooding and

post-flooding conditions for fish and wildlife resources

and recreational resource use, and will recommend any

mitigative measures determined to be necessary.

The settlement agreement and the ongoing fish and wild-

life studies adequately address the concerns of the in-

tervenors and commenting agencies regarding the effects

of the project on fish and wildlife resources. Article 38

requires the Licensee to file a revised Exhibit S within

3 years, taking into consideration the results of the pre-

and post-flooding studies. Included in the revised Exhibit

S would be any proposals for mitigative measures neces-

sary to protect or enhance the fish and wildlife resources

affected by the project.

Under Articles 12 and 15 of this license, the Commission

reserves the right to prescribe minimum flow releases

and other changes in project operation to preserve and

enhance fish and wildlife resources.

Issuance of this license does not affect the ongoing con-

solidated proceeding identified as lead Docket No. E-

9569.

28a

Recreation

The primary recreational uses of the project reservoir

are limited fishing, small boating, and water skiing. Ex-

isting recreational facilities include a controlled fishing

pond, two boat launching ramps, and a small day-use

park with a skating rink. In addition, a nine-hole golf

course operated by the Town of Rock Island exists on

lands owned by Chelan within the project boundary.

Chelan filed on September 29, 1975, and revised on

March 1, 1978, an Exhibit R for the Rock Island Project

pursuant to Article 55 of the prior License. The Ex-

hibit R was approved by the Commission on October 19,

1979, requiring initial recreational development of six

sites, and reserving two additional sites for future de-

velopment. Proposed recreational development to be com-

pleted by 1984 includes: 30 campsites, 1 group camp, 165

picnic sites, 4 boat docks, 3 boat ramps, 2 interpretative

centers, 1 swimming area, and 65 miles of shoreline

trails.

The order approving the Exhibit R required Licensee to

file for Commission approval, a plan for recreational de-

velopment of the Wenatchee River Confluence North of

Walla Walla Point sites. An amendment to the Exhibit

R proposing development of the two sites was filed on

October 20, 1980, and was approved on January 5, 1981.

The approved Exhibit R and amendment adequately ful-

fill current and foreseeable recreational needs at the proj-

ect. This order makes the approved Exhibit R a part

of the new License for Project No. 943. Article 17 of

the License reserves sufficient authority for modification

of the plan, including acquisition of lands to meet fu-

ture recreational needs in lig*+ of changing conditions.

Cultural Resources

The Rock Island Railroad Bridge, Wenatchee Flat Site,

and Pangborn-Herndon Memorial, all within the project

29a

boundary, are listed on the National Register of Historic

Places. The Rock Island Dam and Sternwheeler Park

are listed on the State Register of Historic Places, and

are within the project boundary. In addition, 26 arche-

ological sites have been identified by the Washington

State Historic Preservation Officer (SHPO) as being

within the project boundary.

The SHPO recommends that Chelan develop a mitiga-

tion plan that addresses potential effects of the project

on cultural resources. Article 52 of the prior license

required the Applicant to do an archeological survey of

the project area and perform any salvage work neces-

sary to preserve the archeological values affected by con-

struction of the second powerhouse and raising the reser-

voir level. Licensee’s studies have been completed, but

final reports have not been prepared. The final report

will contain recommendations regarding further protec-

tion of archeological resources of the project area and

will be submitted to the SHPO and the Commission for

review. Article 39 requires the Licensee to continue to

cooperate with the SHPO and Washington State Univer-

sity in order to ensure completion of any archeological

work currently under way at the project and to ensure

protection of the project’s archeological resources, pres-

ently, and in the event of any future development at the

project.

Other Environmental Considerations

On the basis of an environmental assessment, the Com-

mission’s staff found that licensing of the project would

not be a major Federal action significantly affecting the

quality of the human environment.

Issuance of this license will permit continued project

operation, which began over 50 years ago. No new con-

struction, except for recreation development, or change in

project operation is proposed. The impacts of continued

operation are discussed earlier in this order. Planned

recreational facilities would be beneficial and their con-

30a

struction would have impacts that are only minor and

short-lived. On the basis of the record, including agency

and intervenor comments and staff’s independent analy-

sis, it is found that issuance of a license for this project,

as conditioned, is not a major Federal action significantly

affecting the quality of the human environment.

Other Aspects of Comprehensive Development

The project, with a total installed capacity of 622.5 MW,

has a hydraulic capacity of 220,000 cfs, which is the

hydraulic capacity of the Rocky Reach plant located im-

mediately upstream on the Columbia River. The project

storage capacity is very limited, and therefore, power

generation is dependent to a great extent on discharges

from upstream powerplants.

Applicant has no plans for future expansion of the proj-

ect, and development of the project for additional power

is not economically justified at this time since the proj-

ect is currently using the total flow discharged from up-

stream projects.®

The Columbia River is a navigable river. At the present

time, there is no commercial navigation and no navige-

tional facilities in the vicinity of this reach of the Co

lumbia River. However, an investigation was conducted

by the Seattle District, Corps of Engineers, and the re-

sults demonstrated that the potential installation of navi-

gation locks is compatible with the Rock Island Project.

There are irrigation facilities utilizing waters from the

Rock Island reservoir. The operation of the project has

no adverse effect on these installations.

Continued operation of the Rock Island Project No. 943

is consistent with the comprehensive development of the

8 The project with its average annual generation of 2,780 million

kWh, will utilize a renewable resource that will save the equivalent

of approximately 4,565,000 barrels of oil or 1,287,000 tons of coal

per year.

8la

Columbia River. It is concluded that the project effec-

tively utilizes the available head and flow of the Columbia

River. Subject to the conditions of this license, Project

No. 943 is best adapted to a comprehensive plan for de-

velopment of the Columbia River basin for beneficial

public uses, and issuance of this license is in the public

interest.

License Term

Since there has been recent major construction at the

project, which significantly increased the capacity, the

license term will be 40 years from the end of the prior

license.* Accordingly, this license will expire on January

31, 2020.

Revised Exhibits

Chelan filed on October 18, 1976, revised Exhibits J and

K pursuant to Article 68 of Amendment 17 to the license

to show the project boundary around the second power-

house. Also, the Commission issued on October 19, 1979,

an order approving Exhibit R, and issued on July 17,

1980, an order amending license for the Rock Island

Project. Article 43 requires the Licensee to file revised

Exhibits J and K, to supersede the Exhibits J and K

filed October 18, 1976, and to reflect any changes in the

project as a result of the orders issued October 19, 1979,

and July 17, 1980.

It is ordered that:

(A) This license is issued to Public Utility District No.

1 of Chelan County, Washington (Licensee), of Chelan

County, Washington, under Part I of the Federal Power

Act (Act), for a period effective the first day of the

month in which this license is issued and terminating

January 31, 2020, for the continued operation and main-

tenance of the Rock Island Project No. 943, located in

*See the Montana Power Company, Mystic Lake Project No.

2301, Order Issuing New License (Major) (Issued October 5, 1976).

32a

Chelan and Douglas Counties, Washington, on the Co-

lumbia River, a navigable waterway of the United States,

and occupying lands of the United States under the ad-

ministration of the U.S. Bureau of Land Management.

This license is subject to the terms and conditions of the

Act, which is incorporated by reference as part of this

license, and subject to the regulations the Commission

issues under the provisions of the Act.

(B) The Rock Island Project No. 9438 consists of:

(1) All lands, to the extent of the Licensee’s interests

in those lands, constituting the project area and enclosed

by the project boundary. The project area and boundary

are shown and described by certain exhibits that form

part of the application for license and that are designated

and described as:

Exhibit FERC No. 948- Showing

J 225 General Map-Project Area

K-1 to K-25 132 through 156 Detail Map-Project Area

K-Sl1 to K-S9 157 through 165 Survey Data-Project Area

K-Tl 226 Detail Map-Transmission Line

(2) Project works consisting of:

(a) a concrete gravity dam, about 3,580 feet long, with

a gated spillway section 1,184 feet long containing 31

crest gates; (b) a reservoir extending about 20 miles

upstream having a normal maximum forebay elevation

614.1 feet U.S.G.S. and a gross storage capacity of 130,000

acre-feet and a usable storage capacity of 11,000 acre

feet at a maximum reservoir drawdown of 4 feet for

power operations; (c) a concrete powerhouse about 870

feet long, integral with the dam, af eee eae,

kW generating unit, three 20,700-kW ng units,

and six 22,500-kW generating units (10 units totaling

212.1 MW); (d) a step-up substation on the powerhouse

roof; (e) a high-tension switching station on Rock

Island; (f) four single-circvit 115-kV transmission lines

extending from the switching station for a distance of

about two miles to the McKenzie switchyard; (g) a sec-

ond project powerhouse at the right bank about 465 feet

long and 200 feet wide, containing eight 51.3-MW hori-

zontal shaft, bulb-turbine type generator units (8 units

totaling 410.4 MW); (h) step-up transformers at the

second powerhouse connected to two single-circuit 115-

kV transmission lines extending about two miles to the

McKenzie-Valhalla substantion; (i) three fishways and

related fish facilities; and (j) appurtenant facilities.

The location, nature and character of these project works

are generally shown and described by the exhibits cited

above and more specifically shown and described by cer-

tain other exhibits that also form a part of the applica-

tion for license and that are described and designated as:

Exhibit L FERC No. 943- Titled

1 185 General Plan

2 186 Left Abutment Plan

3 187 First Powerhouse Plan

4 188 First Powerhouse Sections

5 189 First Powerhouse Main

One Line Diagram

6 190 Spillway Dam

7 191 Second Powerhouse Plan

s 192 Second Powerhouse Section

9 1938 Second Powerhouse Main

One Line Diagram

10 194 Right Abutment Plan

ll 195 Left Bank Fishway

Sheet 1 of 2

12 196 Left Bank Fishway

Sheet 2 of 2

18 197 Middle Fishway

Sheet 1 of 2

14 198 Middle Fishway

Sheet 2 of 2

15 199 Right Bank Fishway

Sheet 1 of 4

16 200 Right Bank Fishway

Sheet 2 of 4

17 201 Right Bank Fishway

Sheet 8 of 4

18 202 Right Bank Fishway

Sheet 4 of 4

Exhibit M—“General Description of Equipment” con-

sisting of eleven typed pages filed on May 29, 1980, as

part of the Application for New License.

Exhibit R—“Recreation Plan for Rock Island Project”

consisting of 35 pages of text and 7 drawings (FERC

Nos. 943-216 and -217, and -219 through -223) filed

March 1, 1978, and approved October 19, 1979.

(3) All of the structures, fixtures, equipment, or facili-

ties used or useful in the operation or maintenance of the

project and located within the project boundary, all port-

able property that may be employed in connection with

the project, located within or outside the project boundary,

as approved by the Commission, and all riparian or other

rights that are necessary or approrpriate in the operation

or maintenance of the project.

paragraph (B) above are approved and made a part of

the license. Exhibit K is approved to the extent that it

shows the general location and nature of the project.

(D) The application for approval of Exhibits J and K

filed on October 18, 1976, is dismissed.

(E) This license is also subject to the terms and con-

ditions set forth in Form L-5 (revised October, 1975),

entitled “Terms and Conditions of License for Con-

structed Major Project Affecting Navigable Waters and

Lands of the United States,” attached to and made a part

of this license. The license is also subject to the following

additional articles:

Article 38. The Licensee shall, within three years from

the date of issuance of this license, file for Commission

approval, a revised Exhibit S including “as-constructed”

fishway drawings, prepared in accordance with the Com-

mission’s Rules and Regulations, and including among

other things, the results of the pre- and post-flooding

studies, and any proposals for mitigative measures needed

historic work related to the project, the Commission re-

serves the right to require the Licensee to conduct, at its

own expense, any such work found necessary.

Article 40. The Licensee shall consu!t and cooperate

with the Washington Department of Social and Health

Services, and the Douglas County Planning Commission

to determine what, if any, vector control measures are

needed at the project.

Article 41. The Licensee shall carry out the recom-

mendations for testing and monitoring of the project

structures and equipment as set forth in the final report

by the Board of Consultants dated May 15, 1980.

36a

Article 42. The Licensee shall pay the United States

the following annual charges, effective the first day of

the month in which this license is issued:

(a) For the purpose of reimbursing the United

States for the cost of administration of Part I of

the Act, a reasonable amount as determined in ac-

cordance with the provisions of the Commission’s

regulations in effect from time to time. The au-

thorized installed capacity for that purpose is 830,000

horsepower. _

(b) For the purpose of recompensing the United

States for the use, occupancy, and enjoyment of its

lands other than for transmission line right-of-way,

a reasonable amount as determined in accordance

with the provisions of the Commission’s regulations

in effect from time to time. The acreage of those

lands is tentatively set at 33.53 acres. The Commis-

sion reserves the right to adjust this figure at a later

date.

States for the use, occupancy, and enjoyment of 0.07

acre of its lands for transmission line right-of-way,

a reasonable amount as determined in accordance

with the provisions of the Commission’s regulations

in effect from time to time.

Article 43. Within one year from the date of issuance

of this order, the Licensee shall file for approval, re-

vised Exhibits J and K conforming to § 4.41 of the Com-

mission’s regulations, showing the Rock Island Project

No. $48 as constructed.

Article 44. (a) In accordance with the provisions of

this article, the Licensee shall have the authority to grant

permission for certain types of use and occupancy of

project lands and waters and to convey certain interests

in project lands and waters for certain other types of

37a

use and occupancy, without prior Commission approval.

The Licensee may exercise the authority only if the pro-

posed use and occupancy is consistent with the purposes

of protecting and enhancing the scenic, recreational, and

other environmental values of the project. For those pur-

poses, the Licensee shall also have continuing responsi-

bility to supervise and control the uses and occupancies

for which it grants permission, and to monitor the use

of, and ensure comyliance with the covenants of the in-

strument of conveyance for, any interests that it has

conveyed, under this article. If a permitted use and

occupancy violates any condition of this article or any

other condition imposed by the Licensee for protection

and enhancement of the project’s scenic, recreational, or

other environmental values, or if a covenant of a con-

veyance made under the authority of this article is vio-

lated, the Licensee shall take any lawful action necessary

to correct the violation. For a permitted use or occupancy,

that action includes, if necessary, cancelling the permis-

sion to use and occupy the project lands and waters and

requiring the removal of any non-complying structures

and facilities.

(b) The types of use and occupancy of project lands

and waters for which the Licensee may grant permission

without prior Commission approval are (1) landscape

plantings; (2) non-commercial piers, landings, boat docks,

or similar structures and facilities; and (3) embank-

ments, bulkheads, retaining walls, or similar structures

for erosion control to protect the existing shoreline. To

the extent feasible and desirable to protect and enhance

the project’s scenic, recreational, and other environmental

values, the Licensee shall require multiple use and oc-

cupancy of facilities for access to project lands or waters.

The Licensee shall also ensure, to the satisfaction of the

Commission’s authorized representative, that the uses and

occupancies for which it grants permission are main-

tained in good repair and comply with applicable State

36a

Article 42. The Licensee shall pay the United States

the following annual charges, effective the first day of

the month in which this license is issued:

(a) For the purpose of reimbursing the United

States for the cost of administration of Part I of

the Act, a reasonable amount as determined in ac-

cordance with the provisions of the Commission’s

regulations in effect from time to time. The au-

thorized installed capacity for that purpose is 830,000

horsepower. ;

(b) For the purpose of recompensing the United

States for the use, occupancy, and enjoyment of its

lands other than for transmission line right-of-way,

a reasonable amount as determined in accordance

with the provisions of the Commission’s regulations

~—in effect from time to time. The acreage of those

lands is tentatively set at 33.53 acres. The Commis-

sion reserves the right to adjust this figure at a later

date.

States for the use, occupancy, and enjoyment of 0.07

acre of its lands for transmission line right-of-way,

a reasonable amount as determined in accordance

with the provisions of the Commission’s regulations

in effect from time to time.

Article 43. Within one year from the date of issuance

of this order, the Licensee shall file for approval, re-

vised Exhibits J and K conforming to § 4.41 of the Com-

mission’s regulations, showing the Rock Island Project

No. 943 as constructed.

Article 44. (a) In accordance with the provisions of

this article, the Licensee shall have the authority to grant

permission for certain types of use and occupancy of

project lands and waters and to convey certain interests

in project lands and waters for certain other types of

sah ik ll PA lt Ma tn a ela

37a

use and occupancy, without prior Commission approval.

The Licensee may exercise the authority only if the pro-

posed use and occupancy is consistent with the purposes

of protecting and enhancing the scenic, recreational, and

other environmental values of the project. For those pur-

poses, the Licensee shall also have continuing responsi-

bility to supervise and control the uses and occupancies

for which it grants permission, and to monicor the use

of, and ensure compliance with the covenants of the in-

strument of conveyance for, any interests that it has

conveyed, under this article. If a permitted use and

occupancy violates any condition of this article or any

other condition imposed by the Licensee for protection

and enhancement of the project’s scenic, recreational, or

other environmental values, or if a covenant of a con-

veyance made under the authority of this article is vio-

lated, the Licensee shall take any lawful action necessary

to correct the violation. For a permitted use or occupancy,

that action includes, if necessary, cancelling the permis-

sion to use and occupy the project lands and waters and

requiring the removal of any non-complying structures

and facilities.

(b) The types of use and occupancy of project lands

and waters for which the Licensee may grant permission

without prior Commission approval are (1) landscape

plantings; (2) non-commercial piers, landings, boat docks,

or similar structures and facilities; and (3) embank-

ments, bulkheads, retaining walls, or similar structures

for erosion control to protect the existing shoreline. To

the extent feasible and desirable to protect and enhance

the project’s scenic, recreational, and other environmental

values, the Licensee shall require multiple use and oc-

cupancy of facilities for access to project lands or waters.

The Licensee shall also ensure, to the satisfaction of the

Commission’s authcrized representative, that the uses and

occupancies for which it grants permission are main-

tained in good repair and comply with applicable State

38a

and local health and safety requirements. Before grant-

ing permission for construction of bulkheads or retain-

ing walls, the Licensee shall: (1) inspect the site of the

- proposed construction, (2) consider whether the planting

of vegetation or the use of riprap would be adequate to

control erosion at the site, and (3) determine that the

proposed construction is needed and would not change

the basic contour of the reservoir shoreline. To imple-

ment this paragraph (b), the Licensee may, among other

things, establish a program for issuing permits for the

specified types of use and occupancy of project lands and

waters, which may be subject to the payment of a reason-

able fee to cover the Licensee’s costs of administering the

permit program. The Commission reserves the right to

require the Licensee to file a description of its standards,

guidelines, and procedures for implementing this para-

graph (b) and to require modifications of those stand-

ards, guidelines, or procedures.

way across, or leases of, project lands for: (1) replace-

ment, expansion, realignment, or maintenance of bridges

and roads for which all necessary State and Federal ap-

provals have been obtained; (2) storm drains and water

mains; (3) sewers that do not discharge into project

waters; (4) minor access roads; (5) telephone, gas, and

electric utility distribution lines; (6) non-project over-

head electric transmission lines that do not require erec-

tion of support structures within the project boundary;

(7) submarine, overhead, or underground major telephone

distribution cables or major electric distribution lines

(69-kV or less) ; and (8) water intake or pumping facili-

ties that do not extract more than one million gallons

per day from a project reservoir. No later than January

3i of each year, the Licensee shall file three copies of a

report briefly describing for each conveyance made under

this paragraph (c) during the prior calendar year, the

type of interest conveyed, the location of the lands sub-

39a

ject to the conveyance, and the nature of the use for

which the interest was conveyed.

(d) The Licensee may convey fee title to, easements or

rights-of-way across, or leases of project lands for: (1)

construction of new bridges or roads for which all neces-

sary State and Federal approvals have been obtained;

(2) sewer or effluent lines that discharge into project

waters, for which all necessary Federal and State water

quality certificates or permits have been obtained; (3)

other pipelines that cross project lands or waters but do

not discharge into project waters; (4) non-project over-

head electric transmission lines that require erection of

support structures within the project boundary, for which

all necessary Federal and State approvals have been ob-

tained; (5) private or public marinas that can accom-

modate no more than 10 watercraft at a time and are

located at least one-half mile from any other private or

public marina; (6) recreational development consistent

with an approved Exhibit R or approved report on recre-

ational resources of an Exhibit E; and (7) other uses,

if: (i) the amount of land conveyed for a particular use

is five acres or less; (ii) all of the land conveyed is lo-

cated at least 75 feet, measured horizontally, from the

edge of the project reservoir at normal maximum surface

elevation; and (iii) no more than 50 total acres of project

lands for each project development are conveyed under

this clause (d)(7) in any calendar year. At least 45

days before conveying any interest in project lands under

this paragraph (d), the Licensee must file a letter to

the Director, Office of Electric Power Regulation, stating

its intent to convey the interest and briefly describing

the type of interest and location of the lands to be con-

veyed (a marked Exhibit G or K map may be used), the

nature of the proposed use, the identity of any Federal or

State agency official consulted, and any Federal or State

approvals required for the proposed use. Unless the

Director, within 45 days from the filing date, requires

42a

Project No. 948

IN TESTIMONY of its acknowledgment of acceptance of

all of the terms and conditions of this Order, Public

Utility District No. 1 of Chelan County, Washington this

day of , 1981, has caused its corporate

name to be signed hereto by , its Presi-

dent, and its corporate seal to be affixed hereto and

attested by , its Secretary, pursuant to

a resolution of its Board of Directors duly adopted on the

day of , 19—, a certified copy of

the record of which is attached hereto.

President

Attest:

Secretary

(Executed in quadruplicate)

43a

Form L-5

(Revised October, 1975)

FEDERAL ENERGY REGULATORY COMMISSION

TERMS AND CONDITIONS OF LICENSE FOR

CONSTRUCTED MAJOR PROJECT AFFECTING

NAVIGABLE WATERS AND LANDS OF THE

UNITED STATES

Article 1. The entire project, as described in this order

of the Commission, shall be subject to all of the provi-

sions, terms, and conditions of the license.

Article 2. No substantial change shall be made in the

maps, plaas, specifications, and statements described and

designated as exhibits and approved by the Commission

in its order as a part of the license until such change

shall have been approved by the Commission: Provided,

however, That if the Licensee or the Commission deems

it necessary or desirable that said approved exhibits, or

any of them, be changed, there shall be submitted to the

Commission for approval a revised, or additional exhibit

or exhibits covering the proposed changes which, upon

approval by the Commission, shall become a part of the

license and shall supersede, in whole or in part, such

exhibit or exhibits theretofore made a part of the license

as may be specified by the Commission.

Article 3. The project area and project works shall be

in substantial conformity with the approved exhibits

referred to in Article 2 herein or as changed in accord-

ance with the provisions of said article. Except when

emergency shall require for the protection of navigation,

life, health, or property, there shall not be made without

prior approval of the Commission any substantial altera-

tion or addition not in conformity with the approved

plans to any dam or other project works under the

license or any substantial use of project lands and waters

not a.thorized herein; and any emergency alteration,

44a

addition, or use so made shall thereafter be subject to

such modification and change as the Commission may

direct. Minor changes in project works, or in uses of

project lands and waters, or divergence from such ap-

proved exhibits may be made if such changes will not

result in a decrease in efficiency, in a material increase

in cost, in an adverse environmental impact, or in im-

pairment of the general scheme of development; but any

of such minor changes made without the prior approval of

the Commission, which in its judgment have produced or

will produce any of such results, shall be subject to such

alteration as the Commission may direct.

Article 4. The project, including its eperation and

maintenance and any work incidental to additions or

alterations authorized by the Commission, whether or not

conducted upon lands of the United States, shall be sub-

ject to the inspection and supervision of the Regional

Engineer, Federal Power Commission, in the region

wherein the project is located, or of such other officer or

agent as the Commission may designate, who shall be the

authorized representative of the Commission for such

purposes. The Licensee shall cooperate fully with said

representative and shall furnish him such information as

he may require concerning the operation and maintenance

of the project, and any such alterations thereto, and shall

notify him of the date upon which work with respect to

any alteration will begin, as far in advance thereof as

said representative may reasonably specify, and shall

notify him promptly in writing of any suspension of work

for a period of more than one week, and of its resump-

tion and completion. The Li¢ensee shall submit to said

representative a detailed p m of inspection by the

Licensee that will provide for an adequate and qualified

inspection force for construction of any such alterations

to the project. Construction of said alterations or any

feature thereof shall not be initiated until the program

of inspection for the alterations or any feature thereof

45a

has been approved by said representative. The Licensee

shall allow said representative and other officers or em-

ployees of the United States, showing proper credentials,

free and unrestricted access to, through, and across the

project lands and project works in the performance of

their official duties. The Licensee shall comply with such

rules and regulations of general or special applicability as

the Commission may prescribe from time te time for the

protection of life, health, or property.

Article 5. The Licensee, within five years from the

date of issuance of the license, shall acquire title in fee

or the right to use in perpetuity all lands, other than

lands of the United States, necessary or appropriate for

the construction, maintenance, and operation of the proj-

ect. The Licensee or iis successors and assigns shall,

during the period of the license, retain the possession of

all project property covered by the license as issued or

as later amended, including the project area, the project

works, and all franchises, easements, water rights, and

rights of occupancy and use; and none of such properties

shall be voluntarily sold, leased, transferred, abandoned,

or otherwise disposed of without the prior written ap-

proval of the Commission, except that the Licensee may

lease or otherwise dispose of interests in project lands

_ or property without specific written approval of the Com-

mission pursuant to the then current regulations of the

Commission. The provisions of this article are not intended

to prevent the abandonment or the retirement from serv-

ice of structures, equipment, or other project works in

connection with replacements thereof when they become

obsolete, inadequate, or inefficient for further service due

to wear and tear; and mortgage or trust deeds or ju-

dicial sales made thereunder, or tax sales, shall not be

deemed voluntary transfers within the meaning of this

article.

Article 6. In the event the project is taken over by

the United States upon the termination of the license as

provided in Section 14 of the Federal Power Act, or is

46a

transferred to a new licensee cr to a non-power licensee

under the prowisions of Secticn 15 of the said Act, the

Licensee, its successors and assigns shall be responsible

for, and shall make good any defect of title to, or of right

of occupancy and use in, any of such project property

that is necessary or appropriate or valuable and service-

able in the maintenance and operation of the project,

and shall pay and discharge, or shall assume responsibil-

ity for payment and discharge of, all liens or encum-

brances upon the project or project property created by

the Licensee or created or incurred after the issuance of

the license: Provided, That the provisions of this article

are not intended to require the Licensee, for the purpose

of transferring the project to the United States or to a

new licensee, to acquire any different title to, or right of

occupancy and use in, any of such project property than

was necessary to acquire for its own purposes as the

Licensee.

Article 7. The actual legitimate original cost of the

project, and of any addition thereto or betterment thereof,

shall be deterrnined by the Commission in accordance

with the Federal Power Act and the Commission’s Rules

and Regulations thereunder.

Article 8. The Licensee shall install and thereafter

maintain gages and stream-gaging stations for the pur-

pose of determiining the stage and flow of the stream or

streams on which the project is located, the amount of

water held in and withdrawn from storage, and the ef-

fective head om the turbines; shall provide for the re-

quired reading of such gages and for the adequate rat-

ing of such sitations; and shall install and maintain

standard meters adequate for the determination of the

amount of elect:ric energy generated by the project works.

The number, character, and location of gages, meters,

or other measwring devices, and the method of operation

thereof, shall at all times be satisfactory to the Com-

mission or its authorized representative. The Commis-

47a

sion reserves the right, after notice and opportunity for

hearing, to require such alterations in the number, char-

acter, and location of gages, meters, or other measuring

devices, and the method of operation thereof, as are

necessary to secure adequate determinations. The in-

stallation of gages, the rating of said stream or streams,

and the determination of the flow thereof, shall be under

the supervision of, or in cooperation with, the District

Engineer of the United States Geological Survey having

charge of stream-gaging operations in the region of the

project, and the Licensee shall advance to the United

States Geological Survey the amount of funds estimated

to be necessary for such supervision, or cooperation for

such periods as may be mutually agreed upon. The Li-

censee shall keep accurate and sufficient records of the

foregoing determinations to the satisfaction of the Com-

mission, and shall make return of such records annually

at such time and in such form as the Commission may

prescribe.

Article 9. The Licensee shall, after notice and oppor-

tunity for hearing, install additional capacity or make

other changes in the project as directed by the Com-

mission, to the extent that it is economically sound and

in the public interest to do so.

Article 10. The Licensee shall, after notice and oppor-

tunity for hearing, coordinate the operation of the proj-

ect, electrically and hydraulically, with such other proj-

ects or power systems and in such manner as the Com-

mission may direct in the interest of power and other

beneficial public uses of water resources, and on such

conditions concerning the equitable sharing of benefits

by the Licensee as the Commission may order.

Article 11. Whenever the Licensee is directly bene-

fited by the construction work of another licensee, a

permittee, or the United States on a storage reservoir

or other headwater improvement, the Licensee shall re-

imburse the owner of the headwater improvement for

48a

such part of the annual charges for interest,

and depreciation thereof as the Commission

mine to be equitable, and shall pay to the U

the cost of making such determination as

Commission. For benefits provided by a

voir or other headwater improvement of

States, the Licensee shall pay to the

amounts for which it is billed from time to time f

headwater benefits and for the cost of making

terminations pursuant to the then current regula

of the Commission under the Federal Power Act.

Article 12. The United States specifically retains and

safeguards the right to use water in such amount, to be

determined by the Secretary of the Army, as may be

iif

ielei

so far as they affect the use, storage and discharge from

storage of waters affected by the license, shall at all

times be controlled by such reasonable rules and regula-

tions as the Secretary of the Army may prescribe in the

interest of navigation, and as the Commission may pre-

scribe for the protection of life, health, and property,

and in the interest of the fullest practicable conservation

and utilization of such waters for power purposes and

for other beneficial public uses, including recreational

purposes, and the Licensee shall release water from the

project reservoir at such rate in cubic feet per second,

or such volume in acre-feet per specified period of time,

as the Secretary of the Army may prescribe in the in-

terest of navigation, or as the Commission may prescribe

for the other purposes hereinbefore mentioned.

Article 13. On the application of any person, associa-

tion, corporation, Federal agency, State or municipality,

the Licensee shall permit such reasonable use of its

reservoir or other project properties, including works,

lands and water rights, or parts thereof, as may be or-

dered by the Commission, after notice and opportunity

49a

for hearing, in the interests of comprehensive develop-

ment of the waterway or waterways involved and the

conservation and utilization of the water resources of

the region for water supply or for the purposes of steam-

electric, irrigation, industrial, municipal or similar uses.

The Licensee shall receive reasonable compensation for

use of its reservoir or other project properties or parts

thereof for such purposes, to include at least full reim-

bursement for any damages or expenses which the joint

use causes the Licensee to incur. Any such compensation

shall be fixed by the Commission either by approval of

an agreement between the Licensee and the party or

parties benefiting or after notice and opportunity for

hearing. Applications shall contain information in suf-

ficient detail to afford a full understanding of the pro-

posed use, including satisfactory evidence that the ap-

plicant possesses necessary water rights pursuant to ap-

plicable State law, or a showing of cause why such evi-

dence cannot ccncurrently be submitted, and a statement

as to the relationship of the proposed use to any State

or municipal plans or orders which may have been

adopted with respect to the use of such waters.

Article 14. In the construction or maintenance of the

project works, the Licensee shall place and maintain suit-

able structures and devices to reduce to a reasonable de-

gree the liability of contact between its transmission

lines and telegraph, telephone and other signal wires or

power transmission lines constructed prior to its trans-

mission lines and not owned by the Licensee, and shall

also place and maintain suitable structures and devices

to reduce to a reasonabi gree the liability of any

structures or wires felling =r obstructing traffic or en-

dangering life. None of the provisions of this article

are intended to relieve the Licensee from any respon-

sibility or requirement which may be imposed by any

other lawful authority for avoiding or eliminating in-

ductive interference.

50a

Article 15. The Licensee shall, for the conservation

and development of fish and wildlife resources, construct,

maintain, and operate, or arrange for the construction,

maintenance, and operation of such reasonable facilities,

and comply with such reasonable modifications of the

project structures and operation, as may be ordered by

the Commission upon its own motion or upon the recom-

mendation of the Secretary of the Interior or the fish

and wildlife agency or agencies of any State in which

the project or a part thereof is located, after notice and

opportunity for hearing.

Article 16. Whenever the United States shall desire, in

connection with the project, to construct fish and wildlife

facilities or to improve the existing fish and wildlife

facilities at its own expense, the Licensee shall permit the

United States or its designated agency to use, free of

cost, such of the Licensee’s lands and interests in lands,

reservoirs, waterways and project works as may be rea-

sonably required to complete such facilities or such im-

provements thereof. In addition, after notice and oppor-

tunity for hearing, the Licensee shall modify the project

operation as may be reasonably prescribed by the Com-

mission in order to permit the maintenance and operation

of the fish and wildlife facilities constructed or improved

by the United States under the provisions of this article.

This article shall not be interpreted to place any obliga-

tion on the United States to construct or improve fish

and wildlife facilities or to relieve the Licensee of any

obligation under this license.

Article 17. The Licensee shall construct, maintain, and

operate, or shall arrange for the construction, mainte-

nance, and operation of such reasonable recreational fa-

cilities, including modifications thereto, such as access

roads, wharves, launching ramps, beaches, picnic and

camping areas, sanitary facilities, and utilities, giving

consideration to the needs of the physically handicapped,

and shall comply with such reasonable modifications of

;

5la

the project, as may be prescribed hereafter by the Com-

mission during the term of this license upon its own

motion or upon the recommendation of the Secretary of

the Interior or other interested Federal or State agen-

cies, after notice and opportunity for hearing.

Article 18. So far as is consistent with proper opera-

tion of the project, the Licensee shall allow the public

free access, to a reasonable extent, to project waters and

adjacent project lands owned by the Licensee for the pur-

pose of full public utilization of such lands and waters

for navigation and for outdoor recreational purposes, in-

cluding fishing and hunting: Provided, That the Licensee

may reserve from public access such portions of the

project waters, adjacent lands, and project facilities as

may be necessary for the protection of life, health, and

property.

Article 19. In the construction, maintenance, or opera-

tion of the project, the Licensee shall be responsible for,

and shall take reasonable measures to prevent, soil erc-

sion on lands adjacent to streams or other waters, streara

sedimentation, and any form of water or air pollution.

The Commission, upon request or upon its own motion,

may order the Licensee to take such measures as the Com-

mission finds to be necessary for these purposes, after

notice and opportunity for hearing.

Article 20. The Licensee shall clear and keep clear to

an adequate width lands along open conduits and shall

dispose of all temporary structures, unused timber,

brush, refuse, or other material unnecessary for the

purposes of the project which results from the clearing

of lands or from the maintenance or alteration of the

project works. In addition, all trees along the periphery

of project reservoirs which may die during operations of

the project shall be removed. All clearing of the lands

and disposal of the unnecessary material shall be done

with due diligence and to the satisfaction of the author-

52a

ized representative of the Commission and in accordance

with appropriate Federal, State, and local statutes and

regulations.

Article 21. Material may be dredged or excavated

from, or placed as fill in, project lands and/or waters

only in the prosecution of work specifically authorized

under the license; in the maintenance of the project; or

after obtaining Commission approval, as appropriate.

Any such material shall be removed and/or deposited in

-—such manner as to reasonably preserve the environmen-

tal values of the project and so as not to interfere with

traffic on land or water. Dredging and filling in a

navigable water of the United States shall also be done

to the satisfaction of the District Engineer, Department

of the Army, in charge of the locality.

Article 22. Whenever the United States shall desire to

construct, complete, or improve navigation facilities in

connection with the project, the Licensee shall convey to

the United States, free of cost, such of its lands and

rights-of-way and such rights of passage through its

dams or other structures, and shall rermit such control

of its pools, as may be required to complete and maintain

such navigation facilities.

Article 23. The operation of any navigation facilities

which may be constructed as a part of, or in connection

with, any dam or diversion structure constituting a part

of the project works shall at all times be controlled by

such reasonable rules and regulations in the interest of

navigation, including control of the level of the pool

caused by such dam or diversion structure, as may be

made from time to time by the Secretary of the Army.

Article 24. The Licensee shall furnish power free of

cost to the United States for the operation and mainte-

nance of navigation facilities in the vicinity of the

project at the voltage and frequency required by such

facilities and at a point adjacent thereto, whether said

53a

facilities are constructed by the Licensee or by the United

States.

Article 25. The Licensee shall construct, maintain, and

operate at its own expense such lights and other signals

for the protection of navigation as may be directed by

the Secretary of the Department in which the Coast

Guard is operating.

Article 26. Timber on lands of the United States cut,

used, or destroyed in the construction and maintenance

of the project works, or in the clearing of said lands,

shall be paid for, and the resulting slash and debris dis-

posed of, in accordanze with the requirements of the

agency of the United States having jurisdiction over said

lands. Payment for merchantable timber shall be at cur-

rent stumpage rates, and payment for young growth tim-

ber below merchantable size shall be at current damage

appraisal values. However, the agency of the United

States having jurisdiction may sell or dispose of the

merchantable timber to others than the Licensee: Pro-

vided, That timber so sold or disposed of shall be cut

and removed from the area prior to, or without undue

interference with, clearing operations of the Licensee and

in coordination with the Licensee’s project construction

schedules. Such sale or disposal to others shall not re-

lieve the Licensee of responsibility for the clearing and

disposal of all slash and debris from project lands.

Article 27. The Licensee shall do everything reason-

ably within its power, and shall require its employees,

contractors, and employees of contractors to do everything

reasonably within their power, both independently and

upon the request of officers of the agency concerned, to

prevent, to make advance preparations for suppression of,

and to suppress fires on the lands to be occupied or used

under the license. The Licensee shall be liable for and

shall pay the costs incurred by the United States in

suppressing fires caused from the construction, operation,

54a

or maintenance of the project works or of the works

appurtenant or accessory thereto under the license.

Article 28. The Licensee shall interpose no objection

to, and shall in no way prevent, the use. by the agency of

the United States heving jurisdiction over the lands of

the United States affected, or by persons or corporations

occupying lands of the United States under permit, of

water for fire suppression from any stream, conduit, or

body of water, natural or artificial, used by the Licensee

in the operation of the project works covered by the

license, or the use by said parties of water for sanitary

and domestic purposes from any stream, conduit, or body

of water, natural or artificial, used by the Licensee in the

operation of the project works covered by the license.

Article 29. The Licensee shall be liable for injury to,

or destruction of, any buildings, bridges, roads, trails,

lands, or other property of the United States, occasioned

by the construction, maintenance, or operation of the

project works or of the works appurtenant or accessory

thereto under the license. Arrangements to meet such

liability, either by compensation for such injury or de-

struction, or by reconstruction or repair of damaged

property, or otherwise, shall be made with the appropri-

ate department or agency of the United States.

Article 30. The Licensee shall allow any agency of the

United States, without charge, to construct or permit to

be constructed on, through, and across those project lands

which are lands of the United States such conduits,

chutes, ditches, railroads, roads, trails, telephone and

power lines, and other routes or means of transportation

and communication as are not inconsistent with the en-

joyment of said lands by the Licensee for the purposes

of the license. This license shall not be construed as con-

ferring upon the Licensee any right of use, occupancy, or

enjoyment of the lands of the United States other than

for the construction, operation, and maintenance of the

project as stated in the license.

55a

Article 31. In the construction and maintenance of the

project, the location and standards of reads and trails on

lands of the United States and other uses of lands of the

United States, including the location and condition of

quarries, borrow pits, and spoil disposal areas, shall be

subject to the approval of the department or agency of the

United States having supervision over the lands involved.

Article 32. The Licensee shall make provision, or shall

bear the reasonable cost, as determined by the agency of

the United States affected, of making provision for

avoiding inductive interference between any project

transmission line or other project facility constructed,

operated, or maintained under the license, and any radio

installation, telephone line, or other communication facil-

ity installed or constructed before or after construction of

such project transmission line or other project facility

and owned, operated, or used by such agency of the

United States in administering the lands under its

jurisdiction.

Article 33. The Licensee shall make use of the Com-

mission’s guidelines and other recognized guidelines for

treatment of transmission line rights-of-way, and shall

clear such portions of transmission line rights-of-way

across lands of the United States as are designated by the

officer of the United States in charge of the lands; shall

keep the areas so designated clear of new growth, all

refuse, and inflammable material to the satisfaction of

such officer; shall trim all branches of trees in contact

with or liable to contact the transmission lines; shall cut

and remove all dead or leaning trees which might fall in

contact with the transmission lines; and shall take such

other precautions against fire as may be required by such

officer. No fires for the burning of waste material shall

be set except with the pricr written consent of the officer

of the United States in charge of the lands as to time and

place.

56a

Article 34. The Licensee shall cooperate with the

United States in the disposal by the United States, under

the Act of July 31, 1947, 61 Stat. 681, as amended (30

U.S %. sec. 601, et seg.), of mineral and vegetative mate-

rials from lands of the United States occupied by the

project or any part thereof: Provided, That such disposal

has been authorized by the Commission and that it does

not unreasonably interfere with the occupancy of such

lands by the Licensee for the purposes of the license:

Provided further, That in the event of disagreement, any

question of unreasonable iaterference shall be determined

by the Commission after notice and opportunity for

hearing.

Article 35. If the Licensee shall cause or suffer essen-

tial project property to be removed or destroyed or to

become unfit for use, without adequate replacement, or

shall abandon or discontinue good faith operation of the

project or refuse or neglect to comply with the terms of

the license and the lawful orders of the Commission

mailed to the record address of the Licensee or its agent,

the Commission will deem it to be the intent of the Li-

censee to surrender the license. The Commission, after

notice and opportunity for hearing, may require the Li-

censee to remove any or all structures, equipment’ and

power lines within the project boundary and to take any

such other action necessary to restore the project waters,

lands, and facilities remaining within the project bound-

ary to a condition satisfactory to the United States

agency having jurisdiction over its lands or the Commis-

sion’s authorized representative, as appropriate, or to

provide for the continued operation and maintenance of

nonpower facilities and fulfill such other obligations un-

der the license as the Commission may prescribe. In

addition, the Commission in its discretion, after notice

and opportunity for hearing, may also agree to the sur-

render of the license when the Commission, for the rea-

sons recited herein, deems it to be the intent of the

Licensee to surrender the license.

57a

Article $3. The right of the Licensee and of its succes-

sors anu assigns to use or occupy waters over which the

United States has jurisdiction, or lands of the United

States under the license, for the purpose of maintaining

the project works or otherwise, shall absolutely cease at

the end of the license period, unless the Licensee has

obtained a new license pursuant to the then existing laws

and regulations, or an annual license under the terms and

conditions of this license.

Article 37. The terms and conditions expressly set

forth in the license shall not be construed as impairing any

terms and conditions of the Federal Power Act which are

not expressly set forth herein.

19 FERC { 61,223

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Before Commissioners: C. M. Butler, III, Chairman;

Georgiana Sheldon,

J. David Hughes

and A.G. Sousa.

Project No. 943-011

PuBLic UTILITY DISTRICT No. 1 OF

CHELAN COUNTY, WASHINGTON

ORDER ON APPEAL

(Issued June 4, 1982)

On May 13, 1981, the Director of the Office of Electric

Power Regulation (“Director”) issued a new license to

Public Utility District No. 1 of Chelan County, Wash-

ington (“Licensee”) for the continued operation and

maintenance of the Rock Island Project No. 943 located

on the Columbia River in Chelan and Douglas Counties,

Washington. (15 FERC { 62,187). An appeal’ of the

Director’s order was filed jointly by the National Marine

1 The National Wildlife Federation filed an untimely appeal and

is therefore rejected. [18 CFR §1.7(d) (1981).] The subsequent

request for joinder and response to the Licensee’s answer are also

rejected.

59a

Fisheries Service and the Yakima Indian Nation.*»* The

appeal addresses primarily question of the treatment of

the fisheries resource and the lack of an environmental

impact statement. The Licensee filed a response to the

petition for appeal.

Motion to Strike

The Fisheries Service filed an answer to the Licensee’s

response to the petition. In response, the Licensee filed a

motion to strike the answers. The Licensee argues that

responses to answers are not permitted and that the

pertinent issues had been presented in the earlier filings.

The Fisheries Service argues in their response to the

motion that although a response to an answer is not pro-

vided for in the regulations, it should not automatically

be rejected. The Fisheries Service states that its filing

completes the record.

There is no provision in our regulations for filing re-

sponses, or objections proffered in responses to a previ-

ously filed answer, response or objection. Except the ex-

tent that such a pleading represents a new prayer for

relief or an initial response thereto, it will not be con-

sidered.* The answer filed by the Fisheries Service

merely expand on or respond to arguments previously

2 The participants in the joint appeal will be referred to as

“Fisheries Service”. When an argument is made solely by the

Yakima Indian Nation, it will be identified as such.

8’ The Washington Department of Fisheries and Game and the

Oregon Department of Fish and Wildlife also requested that they be

allowed to join in the joint appeal. Inasmuch as this request to join

additional parties to the appeal was filed after the deadline for

filing appeals, the request was untimely and is therefore denied.

See 18 FERC §1.7(d) (1981). We do note that denial of this the

request does not alter the substance of the appeal that was timely

filed.

3 Union Electric Company, 18 FERC { 61,156 (1982); Southern

California Edison Co., et al., 15 FERC { 61,099 (1981).

60a

presented. We are, therefore, granting the Licensee’s

motion to strike the response filed by the Fisheries Serv-

ice to the Licensee’s answer.

Fisheriés Resource

The Fisheries Service states that the Director’s order

fails to adequately address its concerns with respect to

the project’s impacts on the anadromous fisheries re-

source. The Fisheries Service argues that the separate

proceeding * is not sufficient to develop solutions to the

problems. The Fisheries Service requests that a schedule

be established for the installation of downstream by-

pass systems; that the minimum flows set forth in the

settlement agreement be included in the license with re-

opener provisions; that provide [sic] compensation be

provided for fisheries losses where such losses cannot be

mitigated.

The Licensee states that the fisheries problems are

being fully investigated in the separate proceeding and

argues that severance of the fisheries question is an ap-

propriate procedure. The Licensee questions the Fish-

eries Service approach of requesting separate considera-

tion of the Rock Island Project when a system-wide ap-

proach would be more comprehensive.

*We established a separate proceeding which consolidated for

hearing and resolution the question of the effect of the operation

of Project Nos. 2114, 948, 2145, and 2149 on the fisheries resource

in the Columbia River. Public Utility District No. 2 of Grant

County, Washington, et al., Project No. 2114, et al., “Order Con-

solidating Proceeding Establishing Hearing and Requiring Prehear-

ing Conference (issued March 7, 1979). The interim results of that

proceeding have been two settlement agreements: one for a period

of four years concerning the study of flows to protect the Vernita

Bar spawning area (approveu October 15, 1979) ; and another for a

period of five years to study the impacts of the projects on the

downstream migrating fish and to develop solutions, if any, to lessen

the impacts (approved March 20, 1980). The 1980 settlement

agreement is the agreement referred to in this order.

6la

The Director’s order is correct in its statement that

separate proceeding is addressing the concerns of Fish-

eries Service. The piecemeal approach advocated by the

Fisheries Service would be costly and probably would not

obtain adequate results. The problems demand a system-

wide approach. That is why we ordered the separate

proceeding. The question of by-pass systems at any of

the dams is one to be addressed under the settlement

agreement and, therefore, is currently pending before the

presiding administrative law judge. The question of com-

pensation for unmitigated losses is also pending before

the presiding judge. The settlement agreement provides

for interim minimum flows which the Licensee is bound

to provide. Articles 12 and 15 of the license issued by

the Director allow the Commission to impose minimum

flows for the benefit of the fisheries resource and to

change those flows should the need arise. Therefore, we

believe that the inclusion of a license article on the in-

terim minimum flow is not necessary. As we stated

recently :

. . . the participants should keep in mind that the

Commission’s order of March 7, 1979, explicitly

charges the presiding judge with the responsibility,

and delegates to him the authority, with respect to

studies and interim operating measures during the

period prior to final Commission action in the pro-

ceeding initiated by that order.

Public Utility District No. 2 of Grant County, Washing-

ton et al, 18 FERC 7 61,023 (1982). The new license

contains adequate provisions to implement any changes

in project operation or structures that we deem neces-

sary for the protection and enhancement of the fisheries

resources when an adequate record has been certified to

the Commission. We believe that the Director appro-

priately issued the new license for Project No. 943.°

5 The Fisheries Service also requests that a hearing be held to

develop license conditions. We have already established a hearing

62a

Exhibit S

The Fisheries Service argues that the new license

should be “withdrawn” pending the completion of the Ex-

hibit S (fish and wildlife report). Under Article 48 of

the original license, the Licensee was ordered to file a

revised Exhibit S “within three years after initial opera-

tion of the se ind powerhouse.”* The final unit of the

second powerhouse was placed into operation in August

979. Thus, under Article 48, the revised Exhibit S

would be filed in August 1982. Article 38 of the new

license orders the Licensee to file a revised ku ‘bit S

“within three years from the date of issuance of this

license” which would be May 12, 1984

ing the filing of a revised Exhibit S. The options avail-

to the Commission in addressing the fisheries prob-

are not reduced by requiring a revised exhibit to be

after the issuance of the license. We are amending

Article 38 of the license, however, to reflect the original

timetable for the filing of the revised Exhibit S.

Need for Environmental Impact Statement

The Fisheries Service argues that the issuance of the

new license for Project No. 943 is a major federal action

significantly affecting the quality of the human environ-

ment and that therefore, staff was required to prepare an

environmental impact statement (“EIS”). The Licensee

on the fisheries issue. That hearing is the appropriate forum for

the development of any further license conditions that may be

appropriate for the protection and enhancement of the fisheries

resource.

*In 1974 the Commission authorized the construction of a second

County, Washington, 51 FPC 1141 (1974).

The standard for determining the need for an EIS is

whether the action is a major federal action significantly

affecting the quality of the human environment. 42

U.S.C. § 4882(2)(c). The key, however, is whether the

issuance of the new license for the project significantly

affects the quality of the environment. The test for de-

termining if the impacts are significant is twofold:

(1) the extent to which the action will cause ad-

verse environmental effects in excess of those

created by existing uses in the area affected by

it; and,

(2) the absolute quantitative adverse environmental

effects of the action itself, including the cumu-

lative harm that results from its contribution to

existing adverse conditions or uses in the af-

fected area.

Hanly v. Kleindienst, 471 F.2d 823, 830 (2nd Cir. 1972).

The issuance of a new license for this project does not fit

either of the criteria that establishes an impact as sig-

nificant. Other than the continuing impacts on the fish-

eries resource, the Fisheries Service has failed to iden-

tify any environmental impacts caused by the issuance of

the license. We find no impacts that should be addressed

by staff in an EIS. The continuing impact of the proj-

ect on the fisheries resource is being addressed in the

separate proceeding. The license is adequately condi-

tioned to provide for the protection of the environmental

resources of the project area. We find that the issuance

of the new license for Project No. 943 does not signifi-

cantly affect the quality of the human environment and,

therefore, no EIS is required.

New Development in the Law

The Fisheries Service argues that the Pacific North-

west Electric Power Planning and Conservation Act

(“Pacific Act”), 16 U.S.C. § 839, et seg., requires that

64a

the fisheries resource receive equal treatment with power

production in the decision-making process. The Fisheries

Service asserts that the Director’s order fails to make

the appropriate finding that the fisheries resource is re-

ceiving equitable treatment.

The Pacific Act states that agencies that regulate hy-

droelectric development, such as this Commission, shall:

exercise such responsibilities . . . in a manner that

provides equitable treatment for such fish and wild-

life with other purposes for which system and facili-

ties are managed and operated. (Section 4(h) (11)

(A) (i).

As we have often repeated in this order, the separate

proceeding is providing a forum to ensure that the fish-

eries resource receives appropriate treatment.

In describing the separate proceeding the Director’s

order states:

... (the Livensee) is conducting studies to investi-

gate the eftect of the project on the downstream mi-

gration of juvenile salmonids, the methods of im-

proving protection and natural production of sal-

monids and the methods of improving and increas-

ing semi-natural and artificial production of sal-

monids from the Mid-Columbia River.

The new license is conditioned so that appropriate

changes in project operation and structures can be made,

if needed, to ensure that the fisheries resource receives

the appropriate treatment. The decision, however, can-

not be made without an adequate record. The separate

proceeding has developed interim protections for the re-

source while a record is being developed to provide for

long-term protection and enhancement of the resource.

We find that the fisheries resource is receiving the ap-

propriate treatment by this Commission.

65a

The Fisheries Service also argues that the Pacific Act

requires the Commission to consult with them. The ap-

plication for license in this proceeding was processed pur-

suant to our normal procedures. This includes specifi-

cally requesting federal, state and local agencies to com-

ment on the application. Notice was also published in

local newspapers and the Federal Register requesting

comments. These procedures ensure that the consulta-

tion requirements of various statutes are met. We believe

that these procedures are adequate for any consultation

requirements of the Pacific Act.

Pursuant to the Pacific Act, a regional fisheries plan

is being developed.7 The Fisheries Service argues that

an article should be included in the license requiring com-

pliance with the regional fisheries plan. We are not in-

cluding an article in the license requiring compliance

with the regional fisheries plan. The plan has not yet

been developed. Compliance with the plan by projects

licensed by this Commission is not mandatory.* The sep-

arate proceeding is to determine, in part, the effect of

the project on the fisheries res: urce. We believe that it

would be imprudent to adopt such an article with two

unknowns present; that is, what the regional plan is and

the extent of the projects’ impacts on the fisheries re-

source. Therefore, we are denying the request for an

article requiring compliance with the as yet undeveloped

regional fisheries plan. Of course, the regional plan

should in the future serve as an important document. in

determining the long-term solutions for protection and

enhancement of the fisheries resource in Mid-Columbia

River. We are including Article 45 in the license to re-

serve to the Commission the authority to re-examine the

project when the regional plan is adopted.

7 The plan is to be completed by November 15, 1982.

8 See Section 4(h) (11) (A) (ii) of the Pacific Act.

66a

The Yakimas argue that the Director’s order fails to

reflect the Commission’s obligations under U.S. v. Wash-

ington, Phase II, 506 F. Supp. 187 (W.D. Wash. 1980).°

The Licensee argues that the Indian Treaty rights are

being taken care of in the separate proceeding. The Li-

~~ eensee notes that Yakima Indian Reservation is outside

of the physical coverage of the Phase II decision.

The Director’s order maintains the status quo with re-

spect to any impacts that the project may have on the

fishery habitat. If, however, the project does impact the

fishery habitat in which the Yakima ciaim treaty rights,

the separate proceeding will resolve that issue. We find

no reason to amend the Director’s order to discuss this

issue.

Access to Data

The Fisheries Service requests that it have full and

complete arcess to all data and information and that it be

fully consulted on all fishery matters. The Licensee did

not respond to these requests.

The data and information being generated in the sepa-

rate proceeding is available to all of the parties. Also,

the Licensee is required to consult with the Fisheries

Service in the preparation of its revised Exhibit S and

additionally in accordance with the applicable statutes.

® U.S. v. Washington, Phase I (Washington v. Washington State

Commercial Passenger Fishing Vessel Association, 443 U.S. 658

(1979) ) establishing that certain tribes whose treaties reserved

the right to fish at their usual and accustomed fishing places were

entitled under certain circumstances to one half of the fisheries

resource. Phase II found that implicit in the treaties was “the

right to have the fishery habitat protected from manmade despoli-

ation”. 506 F. Supp. at 203.

67a

The Commission orders:

A) Article $8 of the license for Project No. 943 is

amended to read as follows:

Article 38. The Licensee shall, on or before August 31,

1982, file for Commission approval a revised Exhibit S

including, among other things, “as constructed’ fishery

drawings prepared in accordance with the Commission’s

Rules and Regulations, the results of the pre-and post

flooding studies, and any proposals for mitigative meas-

ures needed to protect and enhance the fish and wildlife

resources affected by project operation.

B) The license for Project No. 943 is amended to in-

clude the following article:

Article 45. The Commission reserves the authority to

order, upon its own motion or upon the recommendation

of federal or state fish and wildlife agencies or affected

Indian Tribes, alterations of project structures and op-

erations to take into account to the fullest extent prac-

ticable the regional fish and wildlife plan developed pur-

suant to the Pacific Northwest Electric Power Planning

and Conservation Act.

C) All other requests on appeal of the order issuing a

new major license for Project No. 943 are denied.

D) The appeal and subsequent filings made by the Na-

tional Wildlife Federation are rejected.

By the Commission.

[SEAL]

/s/ Kenneth F. Plumb

KENNETH F.. PLUMB

Secretary

68a

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

FISH AND WILDLIFE

RESOURCES

Before Commissioners: C.M. Butler III, Chairman;

Georgiana Sheldon and

Oliver G. Richard III.

Project Nos. 943-012, 013, and 014

PuBLic UTILITY DistrRicT No. 1 oF )

CHELAN COUNTY, WASHINGTON )

ORDER ON REHEARING

(Issued November 23, 1982)

Applications for rehearing have been filed by the Na-

tional Marine Fisheries Service (““NMFS”)?* and the Pub-

lic Utility District No. 1 of Chelan County, Washington

(“PUD”) of our order denying NMFS’s appeal of the

issuance of a new license for the Rock Island Project No.

943.2 NMFS is concerned primarily with the project’s im-

1 NMFS filed its petition for rehearing jointly with the Oregon

Department of Fish and Wildlife and the Yakima Indian Nation.

However, only NMFS has filed and been granted intervention in

this pror eding. In accordance with Section 313 of the Federal

Power Act, rehearing only lies for those that are parties to the pro-

ceeding (i.e., intervenors). Therefore, the petition for rehearing

as it relates to Oregon and Yakima was not accepted for filing.

For the same reasons, the petition for rehearing filed by the Na-

tional Wildlife Federation also was rejected.

219 FERC {] 61,223 (June 4, 1982).

69a

pact on the Columbia River fisheries. The PUD objects to

certain aspects of Articles 38 and 45 of the license.

Appeal by NMFS

1. Request For New Hearing

NMFS again objects to the Commission’s use of a “sep-

arate” proceeding to address the project’s impact on the

Columbia River fisheries.* NMFS argues that the license

should not have been issued without adequate conditions

to protect the fisheries, and that a record to support these

conditions could be developed at a hearing. According to

NMFS, the hearing should address technical issues such

as flows, spills, collection and by-pass, and compensation.

NMF%S’s complaint that the fishery problems related to

Project No. 943 should not be addressed in the context of

the on-going proceeding appears to stem from NMF%S’s

frustration and impatience with the pace of that proceed-

ing. This proceeding was established at the request of

federal and state fishery management agencies in order

to develop a record to determine what changes, if any,

should be made in project structures and operation in

order to preserve, protect, and enhance the Columbia

River fisheries. We do not think that the public interest

would be well served by disbanding the existing proceed-

ing and instituting a new one in order to accommodate

one of the participants. NMFS’s request for a new pro-

ceeding appears to be little more than an attempt to cir-

cumvent the Commission’s current effort to compile an

adequate and orderly record on these issues. If NMFS

perceives deficiencies in the on-going proceeding, the bet-

® The “separate” proceeding, which is currently pending before

an Administrative Law Judge, consolidates for hearing and resolu-

tion the question of the effect of Project Nos. 943, 2114, 2145, and

2149 on the Columbia River fisheries. Public Utility District No. 2

of Grant County, Washington, et al. 6 FERC {61,210 (Mar. 7,

1979).

70a

ter course would be for it to try to correct those deficien-

cies in the context of that proceeding.

2. Need For EIS

NMFS also argues that an environmental impact state-

ment should have been prepared prior to issuing the new

license. On this point, NMFS raises no new arguments

that have not been discussed in our previous orders in

this docket. We find that the environmental record al-

ready compiled is adequate to support our order issuing

a new license for the existing Rock Island Project, espe-

cially in light of our decision to include open-ended condi-

tions pertaining to fisheries that will be finalized on the

basis of the record compiled in the on-going proceeding

discussed above.

3. Equitable Treatment of Fisheries Issues

On another matter, NMFS argues that relegating the

fisheries issue to a separate proceeding, while approving

the power operations by issuing a new license, is not

equitable treatment of the fisheries as contemplated by

the Pacific Northwest Electric Power Planning and Con-

servation Act (“Pacific Act”).* Section 4(h)11(A) (i) of

the Pacific Act requires that the fisheries be given equi-

table treatment with other project purposes in the deci-

sion-making process.

We first note that the Commission, long before passage

of the Pacific Act, has sought to balance power and fish-

eries interests when issuing licenses. Secondly, in issuing

new licenses for old projects, as is the case here, we have

often found it necessary to have the applicant and in-

terested agencies conduct rather detaiied fisheries studies

of several years’ duration. When there is only one ap-

plicant for the new license, it frequently makes sense to

go ahead and issue the new license before the lengthy

#16 U.S.C. § 889 et seq.

Tla

studies are complete, sc as to put in effect sooner the new

license conditions, which relate to all aspects of the project

and in many cases strengthen the protection of other

aspects of the public interest in the project. Because this

procedure enhances our regulatory posture and enables us

to better deal with environmental issues, we cannot con-

cur in NMFS’s complaint that the fisheries are being

short-changed by our issuance of the new license.

4. Requirement to Consult

On the matter of consultation with fish and wildlife

agencies and Indian Tribes under section 4(h) (11) (B)

of the Pacific Act, NMFS asserts that the Commission

must do more than provide public notice and opportunity

for comment on the application. NMFS overlooks the

fact that our regulations require consultation between

applicants and agencies prior to filing of the application.®

The applicants meet with the agencies and seek review

and comment on the draft application. We believe that

this pre-filing consultation, coupled with the agencies’

post-filing opportunity to review and comment on the

application, satisfies the consultation requirements of the

Pacific Act.

5. NMFS’s Stricken Pleading

Finally, NMFS objects to our striking its answers to

the PUD’s response to its petition for appeal. We struck

NMF%’s filing because it “merely expands on or responds

to arguments previously presented.” 19 FERC { 61,233

at 61,438. NMFS, however, contends that the stricken

filing addresses new issues, and is not merely a further

explication of old issues. We have re-examined NMF%S’s

filing, and are unable to identify any new issues ad-

dressed therein. Accordingly, we reaffirm our decision

to strike this repetitious filing from the record.

5 See 18 C.F.R. § 4.41 (1982).

72a

PUD’s Petition for Rehearing

The PUD argues that the date specified in Article 38

for submission of a revised Exhibit S (fish and wildlife

report) is impractical, because the fishery studies have

not been completed. The PUD states that agreements on

tie studies have now been reached with the fish and wild-

life agencies. The PUD therefore requests that Article

38 be amended to extend the filing date of the revised

Exhibit S until May 1984. Under the circumstances, we

are persuaded that the PUD’s new schedule is reasonable

and should be adopted. Article 38 will be amended to

reflect the new schedule.

The PUD also argues that any re-examination of the

project pursuant to Article 45 should be tempered by a

“reasonableness” standard, and that any alterations to

the project not be ordered without notice and opportunity

for a hearing.” Our actions are always governed by a

rule of reasonableness, and where license articles are left

open-ended for a future determination, notice and oppor-

tunity for a hearing are inherent.’ The PUD’s proposed

amendment of Article 45 is rejected.

The Commission orders:

All pending motions and petitions for rehearing are

denied, except for the PUD’s request that Article 38 of

the license be amended as follows:

* The Washington Department of Game apparently does not agree

with the PUD’s new schedule, and takes the position that the re

vised Exhibit S should be filed as soon as possible. And as pre-

viously discussed, NMFS maintains that the license application

should not have been accepted nor the license issued until a revised

Exhibit S has been filed.

7 Article 45, which was added to the license by our previous

order on appeal, reserves to the Commission authority to re-examine

the project license when the regional fish and wildlife plan is

adopted for the Pacific Act.

8 See Central Maine Power Company, 40 FPC 11382 (1968), reh.

den., 40 FPC 1512 (1968); Louisville Gas and Electric Company,

18 FERC { 61,215 (Mar. 4, 1982).

73a

Article 38. The Licensee shall on or before May 31,

1984, file for Commission approval a revised Exhibit

S including, among other things, “as constructed”

fishery drawings prepared in accordance with the

Commission’s Rules and Regulations, the results of

the pre- and post-flooding studies, and any proposals

for mitigative measures needed to protect and en-

hance the fish and wildlife resources affected by

project operations.

By the Commission.

[SEAL]

/s/ Lois D. Cashell

Lots D. CASHELL,

Acting Secretary.

Pty oO Sew

74a

C. Order Denying Petition for Rehearing

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 82-7561

82-7562

83-7038

CONFEDERATED TRIBES AND BANDS OF THE

YAKIMA INDIAN NATION, et al.,

Petitioners,

and

NATIONAL WILDLIFE FEDERATION,

Petitioner-Intervenor,

and

MALCOLM BALDRIGE, SECRETARY OF COMMERCE,

Petitioner,

and

WASHINGTON STATE DEPARTMENT OF FISHERIES AND

WASHINGTON STATE DEPARTMENT OF GAME,

Intervenors,

Vv.

FEDERAL ENERGY REGULATORY COMMISSION,

Respondent,

and

Pusiic Utiity District No. 1

OF CHELAN COUNTY, WASHINGTON,

Intervenor.

75a

ORDER

Before: ANDERSON and FLETCHER, Circuit Judges, and

EastT,* District Judge.

The panel as constituted in the above case has voted to

deny the petition for rehearing and to reject the sugges-

tion for a rehearing en banc.

The full court has been advised of the suggestion for

en banc rehearing, and no judge of the court has re

quested a vote on the suggestion for rehearing en banc.

Fed. R. App. P. 35(b).

The opinion filed June 7, 1984 is amended as follows:

The last full paragraph on page 2502 of the slip opinion

and the first phrase of the last paragraph are eliminated

and replaced with:

“A primary consideration in relicensing of projects

now owned by a state or municipality is whether

FERC should recommend to Congress recapture (or

takeover) by the United States. 16 U.S.C. § 807.

Although takeover is not among FERC’s options in

this case, since Chelan is a municipality as defined in

16 U.S.C. § 796(7), see 16 U.S.C. § 828(b) (take-

over not permitted of projects owned by a state or

municipality). FERC still retains several options

that it must consider in ar EIS. FERC can relicense

to Chelan, relicense to another licensee, or issue a

non-power license. See 16 U.S.C. § 808(a) & (b).

“The [C]ommission is authorized . . .”

The petition for rehearing is denied and the suggestion

for a rehearing en banc is rejected.

* The Honorable William G. East, Senior United States District

Judge, District of Oregon, sitting by designation.

viata! s*% Lhe The

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any project or projects covered by the original license,

and shall be issued on the condition that the new licensee

shall, before taking possession of such project or projects,

pay such amount, and assum such contracts as the

United States is required te do in the manner specified

in section 807 of this title: Provided, That in the event

the United States does not exercise the right to take over

hearing, whenever it finds that i

prehensive plan for improving or developi

use for power purposes, may license al!

use shall be issued to a new licensee only on the condition

that the new licensee shall, before taking possession of the

facilities encompassed thereunder, pay such amount and

assume such contracts as the United States is required

agency is authorized and willing to assume regulatory

supervision of the lands and facilities included under the

nonpower license and does so, the Commission shall there-

upon terminate the license. Consistent with the provisions

of sections 828 to 828¢ of this title, every licensee for non-

power use shall keep such accounts and file such annual

78a

and other periodic or special reports concerning the re-

moval, alteration, nonpower use, or other disposition of

any project works or parts thereof covered by the non-

power use license as the Commission may by rules and

regulations or order prescribe as necessary or appropriate.

42 U.S.C. § 4882(2) (C) (1982)

§ 4332. Cooperation of agencies; reports; availability of

information; recommendations; international and

national coordination of efforts

The Congress authorizes and directs that, to the fullest

extent possible: ... (2) all agencies of the Federal Gov-

ernment shall—

_(C) include in every recommendation or report on

proposals for legislation and other major Federal

actions significantly affecting the quality of the hu-

man environment, a detailed statement by the re-

sponsible official on—

(i) the environmental impact of the proposed

action,

(ii) any adverse environmental effects which

cannot be avoided should the proposa! be imple-

mented,

(iii) alternatives to the proposed action,

(iv) the,relationship between local short-term

uses of man’s environment and the maintenance

and enhancement of long-term productivity, and

(v) any irreversible and irretrievable com-

mitments of resources which would be involved

in the proposed action should it be implemented.

Prior to making any detailed statement, the respon-

sible Federal official shall consult with and obtain

the comments of any Federal agency which has juris-

‘

79a

diction by law or special expertise with respect to

any environmental impact involved. Copies of such

statement and the comments and views of the appro-

priate Federal, State, and local agencies, which are

authorized to develop and enforce environmental

standards, shall be made available to the President,

the Council on Environmental Quality and to the

public as provided by section 552 of Title 5, and shall

accompany the proposal through the existing agency

review processes ....

80a

Ill OTHER MATERIALS

A. Order Amending License

Before Commissioners: John N. Nassikas, Chairman;

Albert B. Brooke, Jr., Rush Moody, Jr., William L.

_Springer and Don S. Smith.

PUBLIC UTILITY DISTRICT NO. 1 OF

CHELAN COUNTY, WASHINGTON,

PROJECT NO. 943

ORDER AMENDING LICENSE (MAJOR)

(Issued March 29, 1974)

Application was filed on February 15, 1973, and re-

vised on March 23, 1978, by Public Utility District No. 1

of Chelan County, Washington (Applicant) for amend-

ment of the license for Rock Island Project No. 9438. Sup-

plemental information was filed on February 23, April 2,

April 9, April 12, and May 31, 1973. The approva! of the

proposed amendment would allow the Applicant to con-

struct a second project power plant and modify the exist-

ing dam to permit the reservoir forebay to be raised 6.1

feet vertically.

Public notice of the filing of the application was given

on April 19, 1973, with an extended date of June 15,

1973, as the last day for filing of protests or petitions to

intervene.

The project is located on the Columbia River near the

cities and towns of Chelan, Ephrata, Rock Island, Water-

ville, and Wenatchee, in Chelan and Douglas Counties,

Washington. The existing project would be modified to

include a semi-outdoor type powerhouse containing eight

8la

horizontal shaft, bulb-turbine generator units (51.8 mw

each), a new fish passage facility replacing the existing

right bank fish ladder, extension of the existing middle

and left bank fish ladders, addition of two miles of new

115-kv transmission lines, raising Rock Island reservoir

6.1 feet from 608.0 to 614.1 feet (U.S.G.S. datum), and

other alterations to existing facilities to accommodate the

raised reservoir forebay. The new 410,400-kilowatt plant

would provide additions in regional peaking capacity of

about 383 mw, and an increase in the average annual

generation of about 1,296 million kilowatt-hours. The 18-

unit project is estimated to have an average annual

energy generation of 2,780 million kwh.

The Applicant, a municipal corporation organized aid

existing under and by virtue of the laws of the State of

Washington, intends to finance the proposed addition to

the project by the issuance of electric revenue bonds.

The interest and principal of these bonds, similar to those

it has issued for other projects, will be paid from reve-

nues derived from the sale of power produced by the

project. Applicant foresees that the total bond issuance

to be in the order of $140 to $150 million depending upon

the financing interest rate. Included in Exhibit G of the

app!.cation is the status and rating of bonds, as of De-

cember 31, 1971, previously issued by the Applicant.

By order of the Washington State Department of Ecol-

ogy on October 12, 1973, there was issued to the Appli-

cant in Docket No. DE-73-179 a modification of water

quality criteria. On March 5, 1974, the Commission re-

ceived the Applicant’s water quality certificate issued by

Washington State Department of Ecology.

Interested Federal, State, and local agencies have re-

ported favorably on the application. The applicant has

had the opportunity to respond to all the comments, and

did so to some of them on September 28, 1973. While no

agency objected to amending the license, there were re-

82a

quests that certain conditions be included in any license

amendment issued. The revised articles and additional

special articles included in the ordering paragraphs would

update the present license and provide further for the

protection and development of fish, wildlife, water qual-

ity, recreation, scenic and other environmental values at

the project.

The Atomie Energy Commission in a letter dated June

25, 1978, believes that the project will have no effect on

its Hanford Plant operations. They were satisfied with

the treatment of nuclear generation alternative.

The Department of Agriculture, Forest Service, in a

letter dated July 24, 1973, states that the proposal will

have no primary or secondary effects on the Wenatchee

National Forest.

The Department of Army, Corps of Engineers, by let-

ter of June 28, 1973, states that the proposed modifica-

tions will have minimal effects on flood damage reductions

downstream of the project and navigation in the vicinity

of the project. The plans for the structures affecting

navigation are satisfacwry. They suggest that the back-

water could have an effect on the outlet structures of the

authorized flood control project for Canyons 1 and 2 in

Wenatchee, Washington. Any revisions of the backwater

curves of the Exhibit H in the application should be re-

ported to the District Engineer of the Corps. Article 64

added to the license by this order provides for the Corps’

recommendation.

By letter of June 1, 1973, the Department of Com-

merce, National Marine Fisheries Service, recommended

three special conditions to be contained in any license

amendment issued for the project. These included: (a)

Applicant shall finance preflooding and _postflooding

studies to determine any project effects on fishery re-

sources and any costs for conservation and development

of fish resources which are deemed to be necessary by the

83a

studies; (b) Applicant shall provide for construction,

maintenance, and operation of facilities for the conserva-

tion and development of fish and wildlife resources and

modify any project structures as ordered by the Com-

mission; and (c) Applicant shall permit the United

States to construct or otherwise provide for fish and

wildlife facilities at the project. Commerce also com-

mented on the submitted Exhibit S stating that the study

program as indicated will probably be greater in scope,

cost, and recognition of needed facilities. Special Arti-

cles 48 and 49 and amended license Article 21 provide for

Commerce’s request.

In a letter dated August 6, 1973, the Department of

the Interior did not object to the project. However, In-

terior desired that there be some clarification of most of

the exhibits submitted. Their main concern was in the

delay allowed for the filing of an Exhibit R; however, we

believe it reasonable to allow one year for filing of the

Exhibit R. Interior’s comments on the Exhibit W gen-

erally dealt with the need for more information and a

thorough investigation of matters, such as the potential

direct relation between project implementation and land-

slide activity. The comments were considered in Staff’s

Draft Environmental Impact Statement. The amended

license articles and additional articles are consistent with

Interior’s comments on Staff’s Draft Statement.

Washington State Department of Game que‘tioned the

adequacy of certain statements in their letter of June 22,

1973. They point out that some of the conclusions in the

application cannot be proven until the contemplated

studies are completed. Game’s main contentions deal with

the effect of the bulb turbine on migrants, nitrogen satu-

ration in the tailrace, loss of game habitat, loss of nesting

sites, and the effect on wildlife.

By letter of June 6, 1973, the Washington State De-

partment of Fisheries insists that provisions be made for

84a

screening the turbines and by-passing the juveniles since

the evidence is inconclusive as to what the effect of the

bulb turbines will be on the juveniles. They were also

interested in the nitrogen super-saturation, the fish runs,

and spawning areas. The matters raised in Fisheries’

and Game’s letters were considered in detail in Staff's

Final Environmental Impact Statement and provided for

in revised Article 21 and in Article 48.

The Douglas County Citizen Advisory Committee for

the Shoreline Management Act in a letter dated May 30,

1973, expressed concern over the orchards that will be

affected by the enlarged project. The Committee requests

that more be done dealing with the golf course; they sug-

gest that it be relocated and propose alternate sites. They

stress its value to the community, and not just as a

recreational area. Other points of concern that the Com-

mittee raised were wildlife nesting areas, changes in

groundwater elevations, and the mosquito situation in the

slough areas. Article 50 calls for pre- and post-flooding

studies on the effects of raising groundwater levels.

Article 51 provides for vector control. Article 55 requires

the filing for Commission approval of an Exhibit R

(Recreational Use Plan) which would include alternatives

to, if not replacement of, the golf course.

The Board of County Commissioners of Douglas

County, Washington, in their letter of April 9, 1978,

foresee no extensive damaging environmental impact.

They stated that the applicant would be required to pay

for improving or replacing the needed road which would

be inundated. Article 54 requires the Applicant to con-

sult and cooperate with them as to the relocation of

roads.

The Department of Transportation, United States

Coast Guard, by letter of June 5, 1973, expressed con-

cern that the increase in the generating capacity may

have some effect on the problem of inductive coupling

with railroad signal and communications lines. In their

85a

letter of August 17, 1973, they would like to have more

information on the effects of river flow manipulation on

future navigation and other problems a mariner might

face particularly when there are abrupt current changes.

Amended Article 11 concerns the problem of inductive

interference. Article 63 provides for consultation with

the railroad on needed alterations.

Washington State Department of Social and Health

Services on May 24, 1978, directed its comments towards

the mosquito problem and the relocation of people. The

Department of Housing and Urban Development on May

21, 1978, was also concerned with the relocation of per-

sons. They would like to see more information on the

replacement of the approximately 50 acres of agricultural

land and the golf course. Special Article 55 deals with

the golf course, and Special Article 58 provides for a

relocation advisory service. Special Article 51 provides

for vector control.

The Washington State Highway Commission on June

13, 1973, lists three areas of concern which were: (a) the

Columbia River Bridge at Olds presently under construc-

tion; (b) the proposed alignment of SR-28 along the east

bank of the Columbia River at 19th Street of which sub-

stantial portions of the gravel bar will be inundated;

and (c) sections of existing SR-28 between Sta. 470 and

480 and Sta. 571 and 533 to be affected by the raised

backwater encroachment. The Department does not ob-

ject to the proposed action, they only desire that proper

identification of impact on the existing and proposed

highways is made and proper protective measures are

included in the proposal. These matters were considered

fully in Staff’s Final Environmental Impact Statement.

Special Article 54 provides for consultation as to the

relocation of roads.

The Environmental Protection Agency (EPA) report-

ing on June 11, 1973, offered no objection to the license

amendment. EPA said that the amendment would allow

86a

more efficient use of the waters of the Columbia River

and it should also reduce supersaturation of dissolved

gases in the flow. Article 48 provides for the monitoring

of dissolved nitrogen levels and temperature as recom-

mended by EPA.

Other agencies commenting on the proposed amend-

ment and offering no objection included the Pacific North-

west River Basins Commission by letter of August 8,

1973, Department of Health, Education, and Welfare

by letter of June 13, 1973, Washington State Parks and

Recreation Commission by letter of July 26, 1973, State

of Washington Office of Program Planning and Fiscal

Management by letter of July 6, 1973, and State of

Washington Department of Natural Resources by letter

of April 12, 1973.

On June 15, 1973, a petition to intervene was filed by

the Washington Department of Fisheries and Department

of Game (Departments). The Departments felt it neces-

sary to petition because of the possible effects of the pro-

posed action upon food fish, game fish, and wildlife

resources of the State. They suggest that research studies

be done. They were at that time negotiating with the

pertinent agencies for funding for the studies. On July

27, 1973, Applicant filed an answer to the Departments’

petition. While the Applicant stated that they did not

oppose the petition, they think that the Departments’

rights and interests will be protected and preserved by

research, investigations, and studies to be funded by the

Applicant. The petition to intervene was granted by the

Commission in an order issued September 18, 1973. We

believe that the Departments’ rights and interests are be-

ing amply protected by the studies being conducted in

cooperation with the Applicant. License articles are be-

ing included to insure protection.

On June 14, 1973, Public Utility District No. 2 of

Grant County, Washington (Grant) filed with the Com-

mission a petition to intervene in the proceedings. The

’

87a

basis for Grant’s petition is the contract between Appli-

cant and Grant in which Grant pays to Applicant money

for lost energy at Rock Island due to the encroachment by

its Wanapum Reservoir of Project No. 2114. They are

fearful that by enlarging Rock Island, Applicant will ask

for increased payments to help finance the construction.

On July 27, 1973, Applicant answered Grant’s petition

contending that Grant will be liable for any power or

energy loss, damage, and expense due to encroachment

after the expansion of Rock Island is completed. Appli-

cant feels that the problem can be solved through briefing

rather than an evidentiary hearing. They are arguing

that the issue is legal not factual. Applicant also states

that if any damage arises from the construction and

operation of the new powerhouse they, the Licensee,

would be held liable under Section 10(c) of the Federal

Power Act. Intervention was granted by the Commission

on September 18, 1973.

On August 13, 1973, Grant filed a reply to Applicant’s

answer to the petition to intervene. In the reply, Grant

contends that the issues involved are a mixture of fact

and law, and, thus, would require a factual record before

any meaningful briefs could be submitted. We believe that

neither this proceeding nor this forum is the proper place

to solve a possible question of money damages * involving

a contract made in the State of Washington. Although

intervenor’s license for Project No. 2114 refers to this

contract and requires compliance with its terms, the con-

tract provisions are not made a part of the license.?

Because the problem is one of contractual right to pay-

ments between Applicant and Grant, not involving the

cost of construction, feasibility of the proposal, nor en-

1 See Idaho Power Company, 29 FPC 572.

2See P.U.D. No. 2 of Grant County, 14 FPC 1067. Although

requested to do so (14 FPC at 1070), the Commission declined to

include the applicant’s obligation under the agreement as conditions

of any license issued (14 FPC at 1074).

88a

vironmental effects; the controversy should not delay the

construction. Therefore, the issues raised in the petition

dealing with the contract and payments thereunder do

not require an evidentiary hearing before the Commis-

sion nor a determination by the Commission at this time.

It is significant to note that the question of power loss

can be best established after the powerhouse is placed in

operation. Further, no damages under the contract can

be established prior to that time.

On December 14, 19738, the Washington State Depart-

ment of Highways (Highways) petitioned the Commis-

sion to intervene in the proceedings to insure greater

protection for their interests. The proposed addition will

effect Highways in these ways: (a) possibility of alter-

ing the structure or modifying the permit for clearance

of a bridge of SR-2 currently under construction;

(b) possible modification of the frontage road grade on

the proposed alignment of SR-28 along the east bank of

the Columbia River; and (c) possibility of raising the

highway grade of existing SR-28 between Sta. 470 and

480 and Sta. 517 and 533 where the backwater will

encroach onto the right-of-way. The petition of High-

ways was granted by order of the Commission issued on

February 27, 1974. It would appear that Highway’s

rights are being sufficiently protected. Applicant appears

to realize its obligations as illustrated on page 3 of the

Exhibit F in that they intend to work with Highways to

fully protect the highway system. There is to be included

in the license Article 54 to require the Licensee to consult

and cooperate with Highways in the relocation of roads.

The Commission received several protest letters, includ-

ing one from Mayor M. A. Guerin of Rock Island, con-

cerning the inundation of the nine-hole golf course in

Rock Island, Washington. The Mayor was also concerned

about the slough areas. They were disturbed because the

golf course is being destroyed and there were no provi-

sions for its replacement. However, the Applicant stated

3va

on pages 5-4 of its environmental report (Exhibit W)

that they will consult with governmental bodies, inter-

ested persons, and organizations as to the need for and

economic feasibility of replacing the golf course. They

said that a provision for other compensating recreational

facilities, if not the golf course, is anticipated as being

included in the Recreational Use Plan (Exhibit R) to be

filed. Applicant is allowed one year to submit the Exhibit

R following approval of the application for amendment

of the license.

The Applicant has submitted an environmental report.

Based upon this report and an independent investigation

of its own, the Commission Staff compiled a Draft

Environmental Impact Statement and circulated it on

October 31, 1973, among the interested Federal, State,

and local agencies as well as to individuals and organiza-

tions for comment. After consideration and review of

these comments, a Final Environmental Impact Statement

was prepared by our Staff which was distributed on

January 28, 1974. On the basis of the information con-

tained in the Staff's final statement and other material

on file with the Commission, we are of the opinion that

the beneficial effects from construction and operation of

the additional powerhouse at Rock Island will offset any

adverse effects on the environment of the area.

We have carefully considered the environmental impact

of the proposed project. There will be an impact on land

resources of the project area resulting from the installa-

tion of a second powerhouse and raising of the reservoir

level. An additional 335 acres of land will be flooded as a

result of this action. These lands support a wide range

of activities which included natural, commercial, resi-

dential and recreational activities. Six businesses and

industries will be inundated resulting in their relocation,

abandonment, or additional construction for protection.

Flooding will also inundate sixteen residences of which

fourteen are inhabited. These persons will have to be

affected through root saturation. This represents

about $225,000 in estimated land value. The recreation

to be affected includes a nine-hole municipal golf course

near the town of Rock Island, three boat ramps on the

reservoir, and sport fishing and wildlife.

Transportation facilities to be affected are a bridge

under construction, some portions of a highway, and part

of a highway, and part of the Burlington-Northern Rail-

road tracks. All of these can be modified to allow the

continuation of their use.

Various studies, both pre-flooding and post-flooding,

are being financed by the Applicant to be undertaken by

Federal and State agencies to determine the effect of the

reservoir raising and additional powerhouse on the fish,

wildlife, and natural habitat such as the taking of nest-

ing areas. Applicant proposes to have periodic site inspec-

tions by professional archeologists to provide for protec-

tion of any archeological resources affected by the con-

struction. No historical sites will be affected by the pro-

posed action.

During the construction there will be some strain on

the socioeconomic community. Even though the Applicant

intends to recruit the majority of the construction force

from the vicinity of the project, there will be an increase

in the use of local resources and public facilities by the

influx of additional construction workers. This impact,

however, is expected to be minimal and probably only for

14 months. What impact there is, could be at least par-

tially offset by a growth in the local tax base to which

these people would contribute.

For about 14 months in the immediate vicinity of the

construction the air quality will be adversely affected by

emissions from heavy equipment and dust due to excava-

Sla

tion. Noise levels would also be higher than norma’. The

water quality during construction could be affected by

increased turbidity, sedimentation, and run-off from ex-

posed slopes. Articles 59 and 60 require measures be

taken to prevent stream siltation and to avoid or mini-

mize any disturbance caused by the construction of the

additional project works.

Once the addition to the project is completed, operation

will continue generally as it does now, except that there

will be a decrease in spillage with more water passing

through the new turbines. This change should improve

the nitrogen super-saturation content of the water due to

the decrease in the spillage. The maximum reservoir

drawdown for the proposal would be four feet to eleva-

tion 610.1 feet. Freeboard would be provided between

the normal forebay level and the top of the spillway gates

to avoid inadvertent overflows. The objective of maximiz-

ing resource utilization will be greater realized with the

proposed addition.

The unavoidable adverse affects include the removal

of 16 residences, and higher groundwater table might affect

septic tank system, water quality, and health standards.

Of the approximately 335 acres of land to be inundated,

there are three areas of biotic interest that would be

adversely affected: (a) Canada goose nesting grounds;

(b) the slough area; and (c) the flood plain. Also taken

or affected would be approximately 50 acres of orchards,

transportation facilities, a nine-hole golf course, and

three boat ramps. Unavoidable adverse effects on the

anadromous fish could come about because of increase in

mortalities to downstream migrants by passing (hrough

turbines instead of over the spillway. There would be a

loss of environmental quality during construction such as

increased solid waste, sewage, noise levels, dust and

92a

vehicle emissions, soil run-off, and consumption of local

resources.

The short term environmental uses can be offset by the

long term benefits of energy production and implementa-

tion of effective mitigative measures. For instance, the

existing shoreline vegetative habitat would be lost, but it

should gradually re-establish itself along shores of the

enlarged reservoir. Relocating the families affected

would cause them inconvience during that time. The

temporary increase in population will put a strain on the

environment and local resources.

There would be an irreversible and irretrievable com-

mitment of resources such as construction materials and

supplies. As long as the structure is in place, there would

be an irretrievable commitment of shoreline vegetation

used as wildlife habitat. Commitments such as land re-

sources could be retrievable if the structure should be

removed. Also lost would be the present land use of those

acres that will be inundated. There could be the loss of

downstream migrating salmonids because they would have

to pass through the proposed powerhouse where mortality

may be higher than if they were spilled.

Consideration has been given to alternatives to the

proposed addition to the project. Those studied were other

hydroelectric sites, combustion turbine, combined cycl

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.