# Appendix — Public Utility District No. 1 v. Confederated Tribes & Bands of the Yakima Indian Nation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2456%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1985 - **Citation:** 471 U.S. 1116 ## Text OS" 190008) #| FILE! w i : 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 cycle, baseload oil-fired and baseload nuclear steam-electric gen- erating plants, purchased power, and no action. The so-called “exotic” alternatives, such as fusion power, solar power, and MHD, are not considered realistic alternatives because at the present none of adequate size are commercially developed. There has not been any known drilling for potential geothermal power generating resources in Washington, and the only known geothermal resource area is around Mcunt St. Helens near the Wash: ington-Oregon border. 93a in the discussion of the combustion turbine alternative, the benefits are that the units are relatively small in size permitting installation near existing plants, have negli- gible cooling water requirements, and require short lead time for construction. The negative factors are low effi- ciency, high operating and maintenance costs, consump- tion of fuels in short supply, and emission of combustion by-products into the atmosphere. The annual cost of producing power by the combustion turbine does not com- pare at all favorably to the cost of power from the second power plant. In considering the combined cycle plant, the beneficial aspects are capability of operating at high and inter- mediate load factors and its capability to firm dump and secondary hydro energy. The adverse factors of the com- bined cycle are many. They include siting problems, find- ing adequate cooling water, supply of fuel, use of a exhaustible natural resource, air pollution from stack emissions, consumptive use of water or in the alternative discharge of heated water, cost of providing condenser ecoling and of constructing new transmission lines, and the adverse impact to scenic value. The annual cost of producing power would be substantially more than it would be at the Rock Island addition. The advantages of a baseload oil-fired steam-electric plant would be capability of operating at high plant fac- tor and possible use to firm dump and secondary hydro energy. The adverse effects are similar to those seen in the combined cycle plant. In addition large tanks to store the oil would have to be constructed increasing the cost and the adverse impact on the scenic values. The estimated total annual cost of producing power from this alternative would be substantially more than the proposal. The nuclear steam plant benefits include a large amount of high load factor power, no release of combus- tion products into the atmosphere, and no consumption of fossil fuels. The negative aspects are siting problems, 94a need for large cooling water supply, use of an exhaustible natural resource, long lead time necessary for construc- tion, problems and cost of disposing the spent nuclear fuel, and cost of providing condenser cooling, of con- structing new transmission lines, and of fuel. The pro- - posed development’s annual cost of power would be sub- stantially less than the nuclear steam plant. The Pacific Northwest is already extensively developed for hydroelectric power, therefore the remaining poten- tial hydroelectric projects are either under study, in some stage of development, or economically and/or environ- mentally undesirable. A review has shown that there are no potential hydroelectric projects in the area available to the Applicant which could be economically developed. While conservation practices are desirable to reduce the demand for electric power, it appears that such prac- tices are not likely to eliminate the need for power from the proposed development or some alternative thereto. Thus, in the alternative of no action, the Applicant and the Pacific Northwest Power Pool would need to provide equivalent power from other sources to meet their re- quirements. The waters flowing past the project, a re- newable resource, would continue to be unused. Currently, the Applicant is unable to purchase power from the Bonneville Pewer Administration equal to the output from the Rock Island project. In the future, if Applicant were able to purchase at present rates BPA power equivalent to project output, it would cost less than power from Rock Island. However, there are indications that the rates will increase this year and in the following years which could more than nullify any previous eco- nomic advantage of purchasing additional power. Various Federal and State agencies in cooperation with the Applicant are conducting and proposing to conduct further studies to determine the effect of the addition on many aspects of the environment. When the studies are 95a completed, it is anticipated that the results will permit decision as to what additional mitigating measures may have to be undertaken in accordance with the terms of the license. The additional United States lands, if any, to be occu- pied by the raised reservoir elevation cannot be deter- mined at this time. The proposed Exhibit K shows the general location of the revised project boundary, but is lacking in essential survey and ownership data neces- sary to make a determination. The computation of the increase, if any, of annual charge for the use of United States lands will be made at a later date when the re- vised Exhibits F, J, and K are filed. The Applicant provided information that the power would be taken entirely by Puget Sound Power and Light Company (Puget Sound) for the first 20 years, half each by Puget Sound and Applicant for the next 20 years, and entirely by Applicant for the remaining 10 years. From an economic analysis the proposed addition appears to be economically justified. The proposed addition would affect no historicai sites listed in the National Registry of Historic Places. How- ever, the existing Rock Island dam, the first hydroelectric development on the Columbia River, is presently under consideration by the Washington State Parks and Recrea- tion Commission for nomination to the National Registry. Archeological excavations between Rock Island and Rocky Reach (Project No. 2145) dams indicate use of the proj- ect area along the river by prehistoric Indian tribes. License Article 52 provides that any survey or needed salvage excavations should be done in cooperation with Washington State University. To be also included in the license are the generator leads, the two 7.0/115 KV step-up transformers, the two 115 KV lines to the McKenzie-Valhalla substation, and ap- purtenant facilities of the proposed new plant. 96a The Commission further finds: (1) Public xotice of the filing of the application for amendment has been given. Intervention has been granted to Public Utility District No. 2 of Grant County, Wash- ington, Washington Department of Fisheries, Washington Department of Game and Washington State Highway Commission. (2) The installed capacity of the project hereinafter authorized for the purpose of computing the capacity com- ponent of the administrative annual charge is 830,000 horsepower, and the amount of annual charge based on such capacity to be paid under the license for the project for ine cost of administration of Part I of the Act is rea- sonable as hereinafter fixed and specified. (3) The exhibits designated and described in paragraph (B) below conform to the Commission’s Rules and Regu- lations and should be approved as part of the license for the project to the extent indicated, and superseded ex- hibits should be eliminated from the license. (4) Amendment of the license for the project does not affect any existing government dam. However, the De- partment of the Army, Corps of Engineers, while not ob- jecting to the amendment, reports that backwater result- ing from raising the reservoir elevation could affect the outlet structures of the authorized but unconstructed flood control project for Canyons 1 and 2 in Wenatchee, Wash- ington. Accordingly, any revision to the backwater curves shown on Sheet 2, dated January 24, 1973, of Exhibit H to the application should be reported promptly to the Dis- trict Engineer of the Seattle District of the Corps of Engineers. (5) It is appropriate and in the public interest to amend the license for Project No. 943 as authorized herein. 97a The Commission orders: (A) Licensee, Public Utility District No. 1 of Chelan County, Washington, is hereby authorized to construct, operate, and maintain a second project powerhouse and appurtenant facilities, install 410.4 MW of additional ca- pacity in eight 51.3 MW generating units, and modify the existing dam to provide for raising the reservoir 6.1 feet at the Rock Island Project No. 943, located on the Colum- bia River in Chelan and Douglas Counties, Washington, effective the first day of the month in which the Commis- sion acts on the application. (B) Subparagraph B of Article 2 of the license for Project No. 943 is amended in part to read: B. Project works consisting of: (1) a concrete gravity dam about 3,580 feet long with a gated spillway section 1,184 feet long containing 31 crest gates; (2) a reservoir extending about 20 miles up- stream having a normal maximum forebay elevation 614.1 feet U.S.G.S. and an active storage capacity of 11,000 acre-feet at a maximum reservoir drawdown of 4 feet for power operations; (3) a concrete powerhouse about 870 feet long integral with the dam containing one 15,000 KW generating unit, three 20,700 KW generating units, and six 22,500 KW generating units (10 units totaling 212.1 MW); (4) a step-up substation on the powerhouse roof; (5) a high-tension switching station on Rock Is- land; (6) four single-circuit 115 KV transmission lines extending from the switching station for a distance of about two miles to the McKenzie switchyard; (7) a 115 KV transmission line, including a 1.5 mile tap line to the Dryden substation, extending about 85 miles from the McKenzie switchyard to the Town of Skykomish; (8) a second project powerhouse at the right bank about 465 feet long and 200 feet wide containing eight 51.8 MW horizontal shaft, bulb-turbine type generator units (8 units totaling 410.4 MW); (9) step-up transformers at 98a the second powerhouse connected to two single-circuit 115 KV transmission lines extending about two miles to the McKenzie-Valhalla substation; (10) three fishways and related fish facilities; and (11) appurtenant facilities :— the location, nature and character of which are more spe- cifically shown and described by the exhibits hereinbefore cited in subparagraph A, and by certain other exhibits which accompanied the application for license, or the ap- plications for amendments thereof, and which are des- ignated and described as follows: FPC No Exhibit 948 Showing J - -120 General Map of Project Area. I Ul csicnsithchiivatoreinnehnatninenticaanmianits -121 Project Boundary Map. Be ienittetennnnsuionieanniinitcinaiabepaantiniis -122 Project Boundary Map. Ii isidninisdiamviniicionnniincindniannagmdieis -123 Project Boundary Map. chiens oe A -124 Project Boundary Map. K-5.... -108 Project Boundary Map. K-6 -104 Project Boundary Map. location of project facilities. FPC Superseding No. Exh. FPC Exhibit 943 Showing No. 943 oS en -105 General Plan of Development............. -78 ile -106 Second Powerhouse Plan.................... on -107 Second Powerhouse Cross Section... SS ae -125 Second Powerhouse Main One Line Diagram : * -109 Existing Spillway Dam . -86, -93, -94 L-6........ -126 Existing Powerhouse Sections........... -63, -65, -80 “General Description of Equipment”, filed with the Commission on February 15, 1973. Exhibit S: Consisting of ten typewritten pages entitled “Fish and Wildlife”, an six drawings (FPC Nos. 943- 111 through -116) filed with the Commission on Feb- ruary 15, 1978. 99a Exhibit V: Consisting of four typewritten pages entitled, “Protection and Enhancement of Natural, Historic, and Scenic Values,” filed with the Commission on February 15, 1973. (C) The exhibits designated and described in Para- graph (B) above are hereby approved to the extent indi- cated and made a part of this license and the superseded exhibits noted above are eliminated from the license for Project No. 943. (D) Article 6 of the license for Project No. 943 is amended by adding the following paragraph: The Licensee, Public Utility District No. 1 of Chelan County, Washington, shall commence con- struction by March 1, 1975, of the additional project works included in the license by this order and shall thereafter in good faith and with due diligence pros- ecute such construction and shall complete construc- tion of such additional project works within 5 years from the effective date of this order. (E) Articles 22 and 23 are deleted from the license, and Articles 5, 8, 11, 14, 21 and 42 of the license for Project No. 943 are amended to read as follows: Article 5. The construction, operation, and maintenance of the project and any work incident to additions or al- terations shall be subject 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 a detailed pro- gram of inspection by the Licensee that will provide for an adequate and qualified inspection force for construc- tion of the project. Construction of the project works or any feature thereof shall not be initiated until the pro- gram of inspection for the project works or any such 100a featu. thereof has been approved by said representative. The Licensee shall also furnish to said representative such further information as he may require concerning the construction, operation, and maintenance of the: project, and of any alteration thereof, and shall notify him of the date upon which work will begin, as far in advance there- of 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 resumption and completion. The Licensee shall allow him and other officers or employees of the United States, show- ing 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 from time to time prescribe for the protection of life, health, or prop- erty. Article 8. Insofar as any material is dredged or ex- cavated in the prosecution of any work authorized under the license, or in the maintenance of the project, such material shall be removed and deposited in such a manner that it will reasonably preserve the project environmental values and so it will not interfere with traffic, both land and water. Dredging and filling in a navigable water of the United States will be done to the satisfaction of the District Engineer, Seattle District, Department of the Army. Article 11. In the construction or maintenance of the project works, the Licensee shall place and maintain suitable structures and devices to reduce to a reasonable degree 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 reasonable degree the liability of any struc- 10la tures or wires falling or obstructing traffic or endanger- ing life. None of the provisions of this article are in- tended to relieve the Licensee from any responsibility or requirement which may be imposed by other lawful au- thority for avoiding or eliminating inductive interference. Article 14. 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 nec- essary for the purpose of navigation on the navigable waterway affected; and the operations of the Licensee, 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 pur- poses, and the Licensee shall release water from the proj- ect 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 interest of navigation, or as the Commission may prescribe for the other purposes hereinbefore mentioned. Article 21. The Licensee shall, for the conservation and development of fish and wildlife resources, construct, maintain and operate, or shall arrange for the construc- tion, maintenance and operation of such facilities and comply with such reasonable modifications of the project structures and operations as may be ordered by the Com- mission upon its own motion or upon the recommendation of the Secretary of the Interior, the Secretary of Com- merce, or the Washington Departments of Fisheries and of Game, after notice and opportunity for hearing. Article 42. The normal operating pool elevation shall be an elevation of 606.0 feet with variations up to a 102a maximum of elevation 608.0 for flows of 85,000 cfs or less. For inflows between 85,000 and 615,000 cfs, Li- censee shall regulate the pond level so as not to exceed a maximum elevation of 608.0 feet. For inflows greater than 615,000 cfs, all spillway gates shall be open. Upon completion of construction to raise the reservoir from elevation 608.0 to 614.1 feet U.S.G.S. datum, Li- censee shall regulate the reservoir level so as not to ex- ceed elevation 614.1 feet at the project dam for inflows up to 820,000 cfs. For inflows greater than 820,000 cfs, all spillway gates shail be open. (F) Subparagraph A of Article 26 of the license for Project No. 943 is amended to read: A. For the purpose of reimbursing the United States for the costs of administration of Part I of the Act, a reasonable annual charge as determined by the Commis- sion in accordance with the provisions of its regulations, in effect from time to time. Effective the first day of the month in which this order is issued, the authorized in- stalled capacity for such purpose is 830,000 horsepower; (G) The license is further amended by adding thereto the following special articles: Article 48. The Licensee, in consultation and coopera- tion with the Fish and Wildlife Service, U.S. Department of the Interior; the National Marine Fisheries Service, U.S. Department of Commerce; the U.S. Environmental Protection Agency; and the Washington State Depart- ments of Ecology, Fisheries and Game, shall conduct pre- and post-flooding studies to determine the effects of proj- ect redevelopment on Columbia and Wenatchee River fish and wildlife resources. As part of these studies, the Li- censee shall monitor temperature and dissolved nitrogen levels above and below the Rock Island Project. The Li- censee shall file, within three years after initial operation of the second powerhouse, for commission approval a revised Exhibit S including “as-constructed” fishway 103a drawings, prepared in accordance with the Commission’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 to protect or develop the water quality and fish and wildlife resources affected by project operation. Article 49. 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 facil- ities at its own expense, the Licensee shall permit the United States or its designated agency to use, free of cost, such of Licensee’s lands and interest in lands, reser- voirs, waterways and project works as may be reasonably required to complete such facilities or such improvements thereof. In addition, after notice and opportunity for hearing, the Licensee shall modify the project operation as may be prescribed by the Commission in order to per- mit the maintenance and operation of the fish and wild- life facilitixs constructed or improved by the United States under the provisions of this article. This article shall not be interpreted to place any obligation on the United States to construct or improve fish and wildlife facilities or to relieve the Licensee of any obligation under this license. Article 50. The Licensee following consultation and cooperation with the Environmental Protection Agency and the Washington Department of Social and Health Services, shall conduct pre- and post-flooding studies on the effects of raising reservoir and ground water levels on septic tanks, industrial and domestic settling ponds, and well water systems, and shall implement any protec- tive or mitigative measures needed for public health pur- poses, including relocation of sewage, waste or well facili- ties. Article 51. The Licensee shall consult and cooperate with the Washington Department of Social and Health Services, and the Douglas County Planning Commission to 104a determine what, if any, vector control measures are needed at the project. Article 52. The Licensee, in cooperation with Washing- ton State University, shall do or pay the cost of doing (1) an archeological survey of the project area on which excavation or flooding will occur, and (2) any salvage work needed to preserve the archeological values affected by project construction and flooding. Copies of such sur- veys and salvage reports shall be filed for the information of the Commission. Article 53. The Licensee shall cooperate with the Wash- ington State Parks and Recreation Commission in helping to identify any historical sites at the project for nomina- tion to the National Register of Historic Places. Article 54. The Licensee shall consult and cooperate with the Washington State Highway Department and the Douglas County Board of Commissioners in the reloca- tion of roads as required by the Rock Island redevelop- ment. Article 55. The Licensee, within one year from the date of issuance of this order, shall file for Commission ap- proval an Exhibit R (Recreational Use Plan). Exhibit R shall be prepared in conformance with Sections 4.41 and 4.42 of the Commission’s Regulations and shall include outdoor recreation facilities alternative to, if not in re placement of, the nine-hole golf course to be inundated by the project. Article 56. The Licensee shall construct, maintain and operate or shall arrange for the construction, maintenance and operation of such recreational facilities including modifications thereto, such as access roads, wharves, launching ramps, beaches, picnic and camping areas, sani- tary facilities and utilities, and shall comply with such reasonable modifications of the project structures and operations as may be prescribed hereafter by the Com- mission during the term of this license upon its own mo- 105a tion or upon the recommendation of the Secretary of the Interior or other interested Federal and State agencies, after notice and opportunity for hearing. Article 57. So far as is consistent with proper opera- tion of the project, the Licensee'shall allow the public free ad- such permite, shall require that permittees provide for Licensee’s consent to the construction of access roads, wharves, landings, and other facilities shall not, without its express agreement, place upon the Licensee any obliga- tion to construct or maintain such facilities. These facil- ities are in addition to the facilities that the Licensee may construct and maintain as required by the license. 106a such persons thereof arising from such relocation. The provisions of the Uniforin Relocation Assistance and Real Property Acquisition Policies Act of 1970 shall be used as a guide to implement this article. Article 59. The Licensee shail be responsible for and shall take reasonable measures to prevent soil erosion on lands adjacent to the stream(s) and to prevent stream siltation or other forms of water or air poliution resulting from construction, operation or maintenance of the proj- ect. The Commission upon request, or upon its own mo- tion may order the Licensee to take such measures as the Commission may find to be necessary for these purposes after notice and opportunity for hearing. Article 60. The Licensee shall in the design, construc- tion, and maintenance of the additional project works in- cluding transmission lines, follow the Commission’s “Guidelines for the Protection of Natural, Historic, Scenic and Recreational Values in the Design and Luca- tion of Rights-of-Way and Transmission Facilities” of Commission Order No. 414, 44 FPC 1491, and other rec- ognized engineering and landscaping practices as may be needed to protect and preserve the environmental values of the project; and shall avoid or minimize any disturb- ance caused by construction and maintenance of the addi- tional project works to the natural, scenic, historical and recreational values of the area, blending project works with the natural view, and revegetating, stabilizing, and landscaping any construction areas located outside the area of the project reservoir. Article 61. The Licensee shall clear project areas to be flooded, dispose of all] temporary structures, unused tim- ber, brush, refuse, and inflammable materials resulting from the redevelopment of the project. Such work shall be conducted to the satisfaction of an authorized repre- sentative of the Commission. Article 62. The Licensee shail, to the satisfaction of the authorized representative of the Commission, install 107a and operate such signs, lights, sirens or other devices be- low the powerhouses to warn the public of fluctuations in flow from the project, and shall install such signs, lights and other safety devices in the project reservoir, such as log booms above the spillway and powerhouse intakes, as may be reasonably needed to protect the public in its recrea- tional use of project lands and waters. Article 63. The Licensee shall consult and cooperate with representatives of Burlington-Northern Railroad in making any needed alterations to railroads affected by the Rock Island redevelopment. Article 64. The Licensee shall consult and cooperate with the District Engineer, Seattle District, U.S. Army Corps of Engineers, on any needed alterations of project operations during flood flows in the Columbia River. The Licensee shall report any revision of the backwater curves shown on Exhibit H, Sheet 2, dated January 24, 1973, to the above-mentioned office. Article 65. The Licensee shall retain a Board of two or more qualified independent engineering consultants, who have not participated substantially in the design of the proposed project works, to review the safety and ade- quacy of all features of the project as proposed for mod- ification. Among other things, the Board shall assess the geology of the project site and surroundings; the design and specifications for the new powerhouse; the design and installation of post tensioned anchors in the existing powerhouse, spillway, and non-overflow sections; the con- struction inspection program; construction procedures and progress; and instrumentation of the completed project. The Board will review, evaiuate, and report on each major element of project design prior to initiation of construc- tion of that project element and will submit a final report upon completion of the project. The Licensee shall sub- mit copies of all Board reports to the Commission. Article 66. The Licensee shall install appropriate in- strumentation or other devices to monitor movement, up- 108a lift, and continuing performance of the post tensioned project structures. A plan of instrumentation and a schedule of recording instrument readings shall be fur- nished to the Commission prior to initial operation of the proposed powerhouse. The Licensee shall furnish annually to the Commission, or as may be requested by the Com- mission or its authorized representative, a report and analysis of the instrument readings. Article 67. The Licensee within five years from the date of issuance of this order 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 second project powerhouse. The Commission expressly reserves the right on approval of revised Exhibits R and K to be filed pursuant to the amended license to require acquisi- tion of title in fee for lands needed for purposes of shore- line control and recreativn in accordance with Order No. 313 (84 FPC 1546). Article 68. The Licensee within one year from date of issuance of this order shall file with the Commission a revised Exhibit F and, for Commission approval, revised Exhibits J and K fully conforming to the requirements of § 4.41 of the Commission’s Regulations to show the re- developed project. (H) This amendment in-the manner set out above shall not operate to alter or amend the license in any other re- spects, and shall not in any way constitute a waiver of any other part, provision or condition of the license. (I) This order shall become final 30 days from the date of its issuance unless application for rehearing shall be filed as provided in Section 313(a) of the Act, and failure to file such an application shall constitute acceptance of this license amendment. In acknowledgment of the ac- ceptance of this license amendment it shall be signed for the Licensee and returned to the Commission within 60 days from the date of issuance of this order. 109a B. Orders in Mid-Columbia Proceeding UNITED STATES OF AMERICA FEDERAL ENERGY REGULATORY COMMISSION Hearing: Temporary and Long-Term Flow Releases ; Fisheries Before Commissioners: Don S. Smith, Acting Chairman; Georgiana Sheldon and Matthew Holden, Jr. Project No. 2114 PUBLIC UTILITY DISTRICT No 2 OF GRANT COUNTY, WASHINGTON Projects Nos. 943 and 2145 PuBLIC UTILITY DISTRICT No. 1 OF CHELAN COUNTY, WASHINGTON Project No. 2149 PuBLIC UTILITY DistRICT No. 1 OF DouGLAS COUNTY, WASH! “GTON Docket No. E-9569 STATE OF WASHINGTON DEPARTMENT OF FISHERIES Vv. PuBLIC UTILITY DISTRICT No. 2 OF GRANT COUNTY, WASHINGTON 110a ORDER CONSOLIDATING PROCEEDINGS, ESTABLISHING HEARING AND REQUIRING PREHEARING CONFERENCE (Issued March 7, 1979) Background The recent petitions. The State of Washington Depart- ment of Fisheries and Department of Game, the Oregon Department of Fish and Wildlife, the U.S. National Marine Fisheries Service, and the Confederated Tribes and Bands of the Yakima Indian Nation (petitioners) have recently filed petitions asking the Commission to modify the operation of Priest Rapids Project No. 2114, Wells Project No. 2149, Rock Island Project No. 943 and Rocky Reach Project No. 2145, or, in the alternative, te institute a proceeding to consider their requests. The four projects are located on the Columbia River in the State of Washington. The petitioners claim that commercial, Indian, and sport fisheries have suffered severe losses over the last twenty years due to the construction and operation of the four projects listed above. They are seeking certain min- imum flows and spills at each project dam for the protec- tion of the chinook, sockeye, and coho salmon and steel- head trout resources. The petitioners submitted provi- sional recommendations for instantaneous and daily av- erage minimum flows, ranging from 10,000 cfs to 110,000 cfs, depending on the time of the year and the location of the project. They also request that during the period of spring juvenile downstream migration (April 26 through June 15), the equivalent of twenty percent of the average daily discharge at each project be spilled, rather than used to generate power. The petitioners’ requests are made pursuant to Article 39 of the license for Project No. 2114,! Article 41 of the 1 Public Utility District No. 2 of Grant County, Washington, Order Issuing License (Major), 14 F.P.C. 1067, 1073 (1955), as amended, 15 F.P.C. 1005, 1006 (1956). llla license for Project No. 2149,? Article 21 of the license for Project No. 943, and Article No. 31 of the license for Project No. 2145. These articles generally require the licensees to comply with reasonable modifications to the operation of the project in the interest of fish and wild- life resources. The petitioners assert that the licensees for these four mid-Columbiz projects have been unable to obtain consent from their bulk power purchasers to accommodate the desired spring spilling. In addition, they state that the flows requested are also being negotiated with the Bonne- ville Power Administration, Bureau of Reclamation, and the Corps of Engineers for the upstream federal dams those agencies operate. In separate answers, the licensees for the four mid- Columbia projects opposed the requested modifications, but stated that they are willing to discuss these matters with the petitioners. Generally, the licensees argue that the available evidence does not support a modification in ~ the current operations of the projects. They state that alternative, less costly means are available to facilitate downstream migration. The licensees also assert that the Commission lacks the authority to require modifications in the current miniraum flows, and that any such re- quirement without their consent would contravene Sec- tion 6 of the Federal Power Act, 16 U.S.C. § 799. In addition, the licensees contend that they cannot imple- ment minimum flows until upstream federal projects— the Corps of Engineers’ Chief Joseph and the Bureau of 2 Public Utility District No. 1 of Douglas County, Washingtcn, Order Issuing License (Major), 28 F.P.C. 128 (1962), as amended, 28 F.P.C. 492 (1962). 8 Public Utility District No. 1 of Chelan County, Washington, Order Amending License, 51 F.P.C. 1141, 1152 (1974). # Public Utility District No. 1 of Chelan County, Washington, Opinion No. 304, 18 F.P.C. 25, 36 (1957). 112a Reclamation’s Grand Coulee Dams—modify their flow releases. The Priest Rapids complaint. Before these recent peti- tions, the State of Washington Department of Fisheries (Department) had filed a complaint on September 22, 1976, respecting the operation of the Priest Rapids Proj- ect No. 2114 (Docket No. E-9569).° The Department alleged that the area downstream from the Priest Rapids Dam serves as an important spawning and rearing area for fall chinook salmon. The Department claims that the 36,000 cfs minimum flow established in the project li- cense ® causes many valuable spawning areas to dry up, resulting in the stranding and subsequent death of eggs and juvenile fish, The Department requested that the minimum flow requirement in the license be increased to 70,000 cfs during the period of October 15 to April 30 of each year. This period would allow for spawning, in- cubation of eggs, and rearing of juvenile fish. After no- tice of the complaint was issued, several petitions to intervene were filed and the Licensee, Public Utility Dis- trict No. 2 of Grant County, filed its answer opposing the relief sought. Between two conferences our staff held on March 3, 1977, and October 17, 1978," the Department filed a motion on October 5, 1978, requesting that the minimum flows from the Priest Rapids Project be increased from 36,000 cfs to 50,000 cfs. This motion was supported by 5 The Priest Rapids project consists of two dams, Priest Rapids and Wanapum. 6 Article 45, 14 F.P.C. at 1074. 7In addition to the two conferences our staff has held concerning the complaint, a number of other conferences and meetings have been held among the parties under the auspices of the Columbia Committee on Fishery Operations. These meetings led to agree- ments under which certain steps, including spilling, were taken to insure the safe passage of juvenile fish during past annual spring migration runs. 113a the Oregon Fish and Wildlife Commission, the Yakima Indian Nation, Idaho Fish and Game Commission, and the National Marine Fisheries Service. This motion was filed for the same reason the complaint was filed—to pro- tect chinook salmon spawning and incubation areas—but subsequent to a joint study conducted by the Department and Public Utility District No. 2 of Grant County.* PUD No. 2 of Grant County in its answer stated that the Department had failed to set forth facts in support of its request for a hearing. Grant County further stated that it believed that the measures taken during the 1977 spawning season were successful and should be continued for another year, with certain modifications. Under that 1977 scheme of regulation, minimum flows of 36,000 cfs were periodically released from the Priest Rapids Dam. Consolidation Because the matters and issues raised by the complaint are closely related to or subsumed within those raised by the more recent petitions, we will consolidate the com- plaint and petitions for consideration in a single proceed- ing. All of the parties earlier permitted to intervene with respect to Docket No. E-9569 will also be deemed inter- venors with respect to the petitions in the consolidated proceeding.® 8 That study culminated in Technical Report No. 88 entitled “The Effect of Daily Flow Fluctuations on Spawning Fall Chinook in the Columbia River.” According to the Department’s October 5, 1978, motion, the licensee has refused to modify the operation of the project in the manner recommended in the study. ®In addition to the three licensees, the Department, and the peti- tioners, these intervenors in Docket No. E-9569 are parties to the consolidated proceeding: The Washington Water Power Company; Puget Sound Power & Light Company; Portland General Electric Company; Pacific Power & Light Company; the Cities of Eugene, McMinnville, Milton-Freewater, and Forest Grove, Oregon; State of Oregon ll4a Hearing Issues We find that it is appropriate and in the public inter- est that a hearing be held to investigate whether the operation of the projects listed above should be modified in the interest of protecting the fishery resources of the Columbia River. The following issues shall be considered during the hearing: (1) the extent, if any, to which the current mini- mum flow at the Priest Rapids Project No. 2114 should be increased for the purpose of protecting the chinook salmon spawning and incubation areas downstream from the dam; (2) the ways, if any, in which the operations of Projects Nos. 943, 2114, 2145, and 2149 should be modified in the interest of protecting chinook, sockeye, and coho salmon, and steelhead trout which must pass these mid-Columbia projects (including determinations of any appropriate instantaneous and daily average minimum flows and spilling percentages) ; and (3) all other associated issues raised by the Wash- ington Department of Fisheries’ complaint in Docket No. E-9567, the Department’s motion filed October 5, 1978, and the petitioners’ mo- tions filed on December 4 and 15, 1978. As we noted earlier, the licensees argue that the Com- mission lacks the authority to require changes in mini- mum flows without their consent. For example, P.U.D. No. 2 of Grant County argues that Article 39 of its Project No. 2114 license does not grant the Commission the authority to amend Article 45, which specifies a mini- Fish and Wildlife Commission; City of Seattle, Washington; City of Tacoma, Washington; Cowlitz County Public Utility District; State of Idaho Fish and Game Commission; and the Confederated Tribes of the Umatilla Indian Reservation. llda mum flow of 36,000 cfs.'° The licensees’ arguments, how- ever, are without merit. Article 39 of the license for Project No. 2114 provides: The licensee shall construct, operate and maintain or shall arrange for the construction, operation and maintenance of such fish ladders, fish traps, fish hatcheries, or other fish facilities or fish protective devices for the purpose of conserving the fishery re- sources, and comply with such reasonable modifica- tions in project structures and operations in the in- terest of fish life in connection with the project as may be prescribed hereafter by the Commission upon recommendations of the Secretary of the Interior, the Washington State Departments of Fisheries and Game and the licensee. [15 F.P.C. 1005, 1006 (1956). Emphasis added. ] Flow releases are unquestionably an element of “pro- ject operations”, which we may reasonably modify in the interest of fish life.” 1 Article 45 provides: The licensee shall so regulate the flow from Project No. 2114 that it will not result in flows of less than 36,000 cubic feet per second of water at the Hanford Works of the Atomic Energy Commission except when conditions are beyond the licensee’s control. Grant County P.U.D. also argues that an agreement it entered with the Department on September 16, 1963, bars the Department from seeking any relief. That agreement, however, has never been approved by the Commission and in no way binds us. In any event, we may investigate the matters at issue here on our own motion, under Article 18 of the Project No. 2114 license. See p. 7 infra. 11 Article 45 of the Project No. 2114 license is irrelevant to the issue of flow releases for protecting fish life. That article sets a minimum flow for the purpose of ensuring the safe operation of the downstream Hanford Nuclear Plant. It does not establish a ceiling on minimum flows for other purposes, nor was it designed to provide sufficient protection for fish life. 1l6a In any event, the licensees also overlook the standard article contained in each of the four licenses which pro- vides : . . . the operations of the licensee, 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 regulations . . . as the Commission may prescribe for the pro- tection of life, health, and property, and in the inter- est of the fullest practicable conservation and utiliza- tion 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 Commission may pre- scribe for the . . . purposes [other than navigation] hereinbefore mentioned. [Emphasis added. ]” The words “other beneficial public uses, including recrea- tional purposes” are taken directly from Section 10(a) of the Federal Power Act. In Udall v. FPC, 387 U.S. 428 (1967), the Supreme Court ruled beyond cavil that this language includes the purpose of protecting anadromous fishery resources (specifically including salmon and steel- head trout). In light of these open-ended license articles, we find that we have ample authority to require modifications to the projects’ operations to provide the relief the com- plainant and petitioners seek, or other relief that may prove necessary or desirable. The licensees’ contentions that such modifications would alter their licenses without 12 Project No. 2114, Art. 18 [14 F.P.C. 1067, 1072 (1955) ]; Project No. 2145, Art. 18 [18 F.P.C. at 35]; Project No. 2149, Art. 18 (28 F.P.C. 128, 182 (1962) ]; see generally 16 F.P.C. 1121, 1125 (1956). Project No. 948, Art. 14 [51 F.P.C. at 1151-52). 1l7a their consent, in violation of Section 6 of the Federal Power Act, are not well taken. The issuance of a license does not relieve the Commis- sion from ensuring throughout the term of the license that fishery resources are protected and enhanced. Dur- ing the term of a license, changes in circumstances or available information may well demand reappraisal of the ways in which the project as originally conceived may be kept best adapted to a comprehensive plan of develop- ment. This is precisely why we include open-ended con- ditions in the project licenses. A modification under such an open-ended license article is not an alteration within the meaning of Section 6 of the Act requiring a licensee’s agreement. Both the courts and Congress have recognized the Commission’s authority to impose open-ended license conditions, which reserve our right to impose changes in project works or operations despite Section 6.° By ac- cepting a license with open-ended conditions, a licensee agrees to make modifications the Commission might order under those conditions. If the licensee could later avoid the imposition of modifications ordered under an open- ended license condition simply by refusing to agree to them, the Commission’s recognized reservation of rights would be vitiated. Need for Expedited Hearing—Phase I In providing for a hearing, we recognize that there have been extensive and continuing efforts to resolve the anadromous fish problems related to the construction and operation of the four mid-Columbia projects. The final solution to these problems may require a substantial amount of time for discovery, further studies, discussions among the parties, and hearings. The immediate problem, however, concerns the impend- ing Spring 1979 downstream migration of smolts during 18 See State of California v. FPC, 345 F.2d 917, 924-25 (9th Cir. 1965), cert. denied, 882 U.S. 941 (1965); H.R. Rep. No. 1643, 90th Cong., 2 Sess. 2 (1968); 114 Cong. Rec. 21440-41 (1968). 118a their journey seaward. According to the pleadings, the migration would begin around the middle of April and continue to the middle of June. With so little time avail- able before migration begins, we find that due and timely execution of our responsibilities in this matter impera- tively and unavoidably requires departures from our usual practice and procedure. Because the parties have been unable to resolve their differences over what meas- ures should be required for this coming spring, we are directing the presiding administrative law judge to con- vene a prehearing conference in Portland, Oregon, on March 20, 1979, for the exlusive purpose of considering the issue of what interim measures, if any, should be imposed to protect the Spring 1979 downstream fish migration. If it appears to the presiding judge that the parties have been unable to resolve their differences over the proper operating regime during the Spring 1979 downstream fish migration by the end of the prehearing conference, he shall convene the hearing immediately and continue it until he has compiled a sufficient record to reach a decision on what measures should be required for this spring." All parties should come to the hearing pre- pared to present oral evidence and to cross-examine any oral testimony by sworn witnesses. We are delegating authority to establish the Spring 1979 interim operating measures to the presiding judge, who must render a decision on this phase of the hearing by April 13, 1979. The licensees must follow the presid- ing judge’s decision on the interim measures. Those measures will go into effect immediately and will be stayed only by Commission action. Any party wishing to appeal or support the presiding judge’s decision on interim measures must do so by filing its briefs, com- ™ The presiding judge and the parties should consider the ex- tent to which those interim measures might best be adapted to any additional studies that may be desirable to develop information sufficient to reach a long-term solution to the mid-Columbia anadro- mous fish problems. 119a menis, or statements of position within fifteen days of issuance of the decision. Hearing—P hase II Further scheduling of hearings in the remainder of this proceeding will be the responsibility of the presiding judge. Moreover, as noted above, additional studies may be required before a long-term solution can be reached, and may even be needed before effective hearings can com- mence to consider what fish measures should be required for the remainder of the license terins. Moreover, in- terim operating measures may be necessary beyond the Spring 1979 downstream fish migration, to facilitate studies or to govern during the period prior to final Commission action in this p ing. These matters, as well as the development of a complete record, will be left to the judgment of the presiding administrative law judge as part of the exercise of his delegated authority under Section 1.27 of our regulations. The Commission orders: (A) The complaint proceeding designated Docket No. E-956°, and the petitions discussed above and filed by petitioners in Projects Nos. 943, 2114, 2145, and 2149, are consolidated. (B) Pursuant to the Federal Power Act, particularly Sections 4(g), 10(a), 10(g), 306, 307, 308, and 309, the licenses for Projects Nos. 948, 2114, 2145, and 2149, and the Commission’s Rules of Practice and Procedure, a hear- ing shall be held in this proceeding respecting the issues discussed above, in accordance with the provisions of this order. (C) The Commission’s Rules of Practice and Proce- dure shall apply in this proceeding except to the extent they are modified and supplemented below. (D) A prehearing conference shal] be held commencing at 9:30 a.m. local time on March 20, 1979, in Judge Soloman’s court room of the U.S. Courthouse, 620 S.W. BEST AVAILABLE COPY 120a Main, Portland, Oregon, to initiate the first phase of the hearing in this proceeding. The first phase will consider the interim operating measures necessary or desirable for Projects Nos. 943, 2114, 2145, and 2149 during the Spring 1979 downstream fish migration on the Columbia River. (E) Under Section 309 of the Federal Power Act, 16 U.S.C. 825h, the Commission delegates to the designated presiding administrative law judge authority to order the licensees for Projects Nos. 948, 2114, 2145, and 2149, to modify the operations of those projects during the Spring 1979 downstream fish migration. The presiding judge’s order on interim operating measures shall be issued no later than April 13, 1979. The effect of the presiding judge’s order shall be stayed only by Commission action. Any party wishing to appeal or support the presiding judge’s order shall file its brief, comments, or statement of position no later than 15 days from the issuance of that order. (F) Any order of the presiding administrative iaw judge on modifications to the operations of Projects Nos. 943, 2114, 2145, and 2149, beyond the Spring 1979 down- stream fish migration shall be effective immediately and be stayed only by Commission action. Any appeal from such an order must conform to Section 1.7(d) of the Commission’s regulations. (G) The licensees for Projects Nos. 948, 2114, 2145, and 2149, the complainant and intervenors in Docket No. E-9569, and the petitioners identified above shall all be permitted to participate in this consolidated proceeding. (H) The Secretary shall cause prompt publication in the Federal Register of notice of the prehearing con- ference ordered in paragraph (D) above. By the Commission [SEAL] KENNETH F. PLUMB, Secretary. — if 2 = e " is » “ as z Re Cees ef : crpet pomplist (os Bit ete " Dey etapa oa ee a, a a ne ae ae DP ere RENAE Uno Raaee CSN eal Sani CL e-ae) aa SY Meceetetca LS he Se Bi ; 121la UNITED STATES OF AMERICA FEDERAL ENERGY REGULATORY COMMISSION Before Commissioners: Charles B. Curtis, Chairman; Georgiana Sheldon, Matthew Holden, Jr., and George R. Hall. Project No. 2114 PuBLIC UTILITY DISTRICT No 2 OF GRANT COUNTY, WASHINGTON Project Nos. 943 and 2145 PUBLIC UTILITY DISTRICT No. 1 OF CHELAN COUNTY, WASHINGTON Project No. 2149 PUBLIC UTILITY DistRicT No. 1 OF DOUGLAS COUNTY, WASHINGTON Docket No. E-9569 STATE OF WASHINGTON, DEPARTMENT OF FISHERIES vs. PUBLIC UTILITY DISTRICT No. 2 OF GRANT COUNTY, WASHINGTON 122a ORDER APPROVING INTERIM OFFER OF SETTLEMENT AS MODIFIED (Issued March 20, 1980) On March 7, 1979, the Commission consolidated several matters into the captioned proceeding which is to deter- mine whether the operation of Project Nos. 943, 2114, 2145 and 2149 should be modified in the interest of pro- tecting the fishery resources of the Columbia River, in- cluding, among other matters, determinations of appropri- ate flows at the Priest Rapids, Wanapum, Rock Island, Rocky Reach and Wells dams in the middle reaches of that river within the State of Washington. The Commis- sion said that questions pertaining to studies and interim operating measures that may be required for a long-term resolution of the proceeding would be left to the judg- ment of an administrative law judge as part of the exercise of his delegated authority under § 1.27 of the Commission’s Rules of Practice and Procedure. On December 31, 1979, the PUDs’, licensees of the foregoing projects, together with the United States Fish and Wildlife Service, the National Marine Fisheries Serv- ice, the Oregon Department of Fish and Wildlife and the Idaho Department of Fish and Gam submitted an in- terim Offer of Settlement’ to the presiding administra- tive law judge for comment and approval. The “Agree- ment” therein recites, among other matters, A five-year study program shall be conducted by the Public Utility Districts to investigate the effect 1 Public Utility District No. 2 of Grant County, Washington; Public Utility District No. 1 of Chelan County, Washington; and Public Utility District No. 1 of Douglas County, Washington. 2 The Offer of Settlement was negotiated by the parties and is obviously an interim measure designed to gather data, rather than a final resolution of appropriate flows. 123a of the projects and their operation on *he down- stream migration of juvenile salmonids, the methods of improving protection of 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. Comments submitted by the Washington State Depart- ment of Fisheries and Department of Game (WDF/ WDG), the State of Washington Department of Ecology, the Confederated Tribes of the Umatilla Indian Reserva- tion (Umatilla Tribes), the Confederated Tribes and Bands of the Yakima Indian Nation (Yakima Tribes) and the Commission staff counsel, generally recommend approval of the Offer of Settlement although, in some instances, the recommendations are conditioned upon cer- tain clarifications. WDF/WDG, however, recommends its certification with “slight modifications” to the Commission for approval. Responses to the comments were submitted by the par- ties sponsoring the Offer of Settlement, as well as by the staff counsel, and generally clarified that offer in the aspects requested. But the sponsoring parties rejected the modification proposed by WDF/WDG.* Thereafter, on March 4, 1980, the presiding judge modified the Offer of Settlement in accordance with the clarifications of the sponsoring parties; rejected the modification of WDF/ WDG; ordered the Offer of Settlement effective, as so modified, as of that date*; and certified it, also as so modified, to the Commission for approval.’ In doing so, 8The Yakima Tribes, on the other hand, added their support to the modification. * Pursuant to Ordering Paragraph (F) of the Commission’s order of March 7, 1979. 5 Pursuant to § 1.18(e) (4) (ii) of the Commission’s Rules of Practice and Procedure. The judge noted, in this connection that counsel for Public Utility District No. 2 of Grant County, Wash- ington, requested “expedited consideration” to permit bids to be 124a the judge said, “Final resolution [of the issues in this proceeding] will be possible only after the necessary data has been collected during the interim second stage.” The Offer of Settlement provides, among other matters, for the maintenance of specified flows at the five dams, and for spills at each of the dams that will begin on specified dates and will continue “for 30 days or until approximately 80% of the migrating juveniles have passed the dams, whichever is sooner.” WDF/WDG, sup- ported by the Yakima Tribes, request that the quoted language be modified so that the spills will continue “for 80 days or until the migrating juveniles have passed, whichever is later.” Citing the treaties between the United States and the Umatilla and Yakima Tribes, as well as Section 10(a) of the Federal Power Act and cer- tain decisions of the Supreme Court ‘*, they contend that “additional progressive destruction of the fish runs should not be consciously approved.” The PUDs respond that while the cited authorities can be read to require reasonable protection of the fishery resources of the Columbia River, those authorities do not require that the development and utilization of other water resources of that river be subordinated to the pro- tection of all of the migrating juvenile salmonids. They say that the question of whether more fish are injured going through turbines, or falling over spillways, is one of the principal issues in this proceeding. And they point out that the 80% limitation in question is only one of several components of the five-year interim program, and solicited early in March for the purpose of altering the Priest Rapids spawning channel in time for the 1980 Spring migration. * Udall v. Federal Power Commission, 387 U.S. 428 (1967), Puyallup Tribe, Inc. v. Department of Game of Washington, 483 U.S. 165 (1977) and State of Washington v. Washington State Commercial Passenger Fishing Vessel Assoriation, US. —, 61 L.Ed.2d 823 (1979). 125a that WDF/WDG “have suggested no specific [compensat- ing] changes in the other components.” The other parties sponsoring the Offer of Settlement explain, in this con- nection, that salmon tend to migrate in peaks approxi- mating a bell-shaped curve, and that the spills are to be targeted at the peaks of the migrations to assure maxi- mum protection of the fish with the available amounts of water: Spill would not commence until the initial 10 percent of the migrating fish had passed the PUD dams. As migrating builds and peaks, spill would gradually be increased to up to 20 percent per dam, and would be adjusted using available water until most of the fish had passed the dams. Under this regime, the amount of spill would parallel the distribution of the migrating populations; spill would be directed at the central 80 percent of the fish populations, but would not be provided for the initial 10 percent or final 10 percent of those populations. The presiding judge said that it is not now possible to decide the relative merit of protecting only 80%, or the requested 100%, of the migrating juvenile salmonids, because there is no conclusive evidence as to whether the turbines or spillways are more deleterious to the fish, adding, that WDF/WDG does not attempt to justify its request for 100% protection as being factually superior. The presiding judge said one of the objectives of the pro- posed five-year study is to collect reliable information on which to base a decision as to whether turbines or spill- ways are more deleterious. And he concluded that WDF/ WDG’s proposal is not supportable as a matter of law for the reasons advocated by the parties sponsoring the Offer of Settlement. We have considered the Offer of Settlement and the comments and responses of the parties, and we approve that offer as modified, and for the reasons set forth, in 126a the presiding judge’s Certification of Settlement Agree- ment and Interim Order of Operating Procedures dated March 4, 1980. As the staff counsel indicated in her response to the comments, the proposed studies are de- signed to help answer the question of whether the spills lessen the mortality rate of the downstream migrants, and Section 9 of the Offer of Settlement provides for convening a settlement conference for the purpose of seek- ing modifications of the minimum flow or spill require- ments. Therefore, depending upon the early results of the studies, the parties can request a settlement con- ference to increase or decrease the spills that are provided in the Offer of Settlement. The Commission orders: The interim Offer of Settlement submitted in this con- solidated proceeding on December 31, 1979, is approved as modified and placed into effect by the presiding admin- istrative law judge on March 4, 1980. By the Commission. [SEAL] Lois D. CASHELL, Acting Secretary. 127a UNITED STATES OF AMERICA FEDERAL ENERGY REGULATORY COMMISSION Project No. 2114 PUBLIC UTILITY DISTRICT No. 2 OF GRANT COUNTY, WASHINGTON Projects Nos. 943 and 2145 PUBLIC UTILITY DISTRICT No. 1 OF CHELAN COUNTY, WASHINGTON Project No. 2149 PuBLIC UTILITY District No. 1 OF DOUGLAS COUNTY, WASHINGTON and Docket No. E-9569 STATE OF WASHINGTON DEPARTMENT OF FISHERIES vs. PUBLIC UTILITY DISTRICT No. 2 OF GRANT COUNTY, WASHINGTON SUBMISSION OF OFFER OF SETTLEMENT Pursuant to the provisions of Section 1.18 of the Com- mission’s Rules of Practice and Procedure, the below listed parties submit the attached Offer of Settlement. This proceeding is currently before Presiding Judge Al- 128a len C. Lande, and it is requested that the Secretary transmit this offer to him. EXPLANATION These proceedings were initiated by a petition filed by various parties to amend the FERC licenses for the op- eration of Priest Rapids Project No. 2114, Wells Proj- ect No. 2149, Rock Island Project No. 943, and Rocky Reach Project No. 2145. These dams are located on the Columbia River in the State of Washington. By order of March 7, 1979, the Commission assigned the case to an Administrative Law Judge and directed that a hear- ing be held. The proceeding was split into two phases for conven- ience of administration. Phase One was to deal with the then immediate problems of the project operations which should be maintained in the spring of 1979 to facilitate the migration of juvenile salmonids. As a result of a conference held in Portland, Oregon, a settlement for a term of one year was reached for that phase of the proceeding, which was accepted and implemented by or- der of the Administrative Law Judge on March 28, 1979. Phase Two was to deal with the more long term solu- tion of the flows to be maintained both for the down- stream migration of juvenile salmonids and for the spawning of fall chinook salmon below Priest Rapids Dam. At the recommendation of the parties, Phase Two of the proceeding was itself split into two phases. The first phase was to deal with the flow requirements for fall chinook spawning, and has commonly been referred to as the “Vernita Bar” phase of this proceeding. On October 15, 1979, the Commission approved an uncon- tested offer of settlement which, in pertinent part, es- tablished a four year term of study to acquire the data needed for final resolution of the issues in the Vernita Bar phase. 129a In a settlement conference during the week of October 22, 1979, and at various times thereafter, the parties have engaged in negotiations for the purpose of reach- ing a settlement on the second phase of Phase Two, re- garding those aspects of project operations affecting the downstream migration of juvenile salmonids. This has been commonly referred to as the “spring migration” phase, and covers the period from approximately April 15 through June 15. As a result of these negotiations, several of the parties have reached the attached Settle- ment Agreement, styled “Offer of Settlement.” It is to be emphasized that the concurrence of Grant, Douglas, and Chelan Public Utility Districts to be Set- tlement Agreement is conditioned upon its acceptance by the Commission in its entirety. Should the Commission be required to disapprove or alter any provisions of the Settlement Agreement as tendered, the Public Utility Districts would be required to withdraw their support for the Settlement Agreement and request a hearing on all of the issues pending before the Commission. The attached Settlement Agreement covers a five year term, during which studies will be conducted by the Publie Utility Districts to acquire the information neces- sary for a permanent resolution of the issues in the spring migration phase. During the term of the studies, minimum flows will be maintained as set forth in para- graph 2; and spill will be provided from the projects as provided for in paragraph 3. To better support the fish- ery resource during the term of the study and years immediately following, the Public Utility Districts have agreed to provide additional hatchery production of sal- monids, as set forth in paragraph 4. The Settlement Agreement has been circulated to the principal parties in interest to this proceeding. It is our understanding that the terms of the Settlement Agree- ment are acceptable to a substantial number of the par- ties, and that they are satisfied it provides a reasonable 130a resolution to the issues raised by the petitioners. Under the circumstances, we believe that submission of the at- tached Settlement Agreement is appropriate and that it should be approved by the Administrative Law Judge and the Commission as proposed. REFERENCES No testimony or exhibits have been filed in this pro- ceeding. The record consists of the petitions of the var- ious parties and the responses of Grant, Chelan and Douglas Public Utility Districts. CONCLUSION We respectfully request that you transmit this Offer of Settlement to the Presiding Administrative Law Judge in accordance with the provisions of Section 1.18. A draft of the proposed Commission order also is attached. Respectfully submitted, Public Utility District No. 2 of Grant. County, Public Utility District No. 1 of Chelan County, and Publie Utility District No. 1 of Douglas County By /s/ Donald B. Myers DONALD B. MYERS Jones, Grey & Bayley 1400 Norton Building Seattle, WA 98104 (206) 624-0900 l3la For the National Marine Fisheries Service, Oregon Department of Fish & Wildlife, Idaho Department of Fish & Game, United States Fish & Wildlife Service /s/ F. Lorraine Bodi F. LORRAINE Boni Staff Attorney, NOAA General Counsel 1700 Westlake Ave. North Seattle, WA 98109 132a CERTIFICATE OF SERVICE I hereby certify that I have this day served the fore- going document upon each person designated on the official service list compiled by the Secretary in this pro- ceeding in accordance with the requirements of Section 1.17 of the Rules of Practice and Procedure. Dated at Washington, D.C., this 3lst day of Decem- ber, 1979. /s/ William J, Madden, Jr. WILLIAM J. MADDEN, JR. 133a UNITED STATES OF AMERICA FEDERAL ENERGY REGULATORY COMMISSION Project No. 2114 Pusiic Utiuiry District No, 2 oF GRANT COUNTY, WASHINGTON, Project Nos. 943 and 2145 Pusiic Utiuity District No. 1 OF CHELAN COUNTY, WASHINGTON, Project No. 2149 Pusiic Urmiry District No. 1 or DouGLas CoUNTY, WASHINGTON, and Docket No. E-9569 STATE OF WASHINGTON, DEPARTMENT OF FISHERIES, v8. Pusuic Utiuiry District No. 2 oF GRANT COUNTY, WASHINGTON OFFER OF SETTLEMENT UNDERSTANDINGS 1. On March 7, 1979. the Commission issued an or- der which provided for an investigation and a hearing regarding various petitions filed in these dockets seeking 134a certain minimum fiow releases and spills from Projects Nos. 2114, 943, 2145, and 2149. 2. During the week of October 22, 1979, the parties engaged in negotiations for the purpose of reaching a settlement with regard to the various issues raised in these petitions regarding the flow requirements, spill and project operations for the downstream migration of ju- venile salmonids. This has been commonly referred to as the “spring migration” phase, and covers the period from approximately April 15 through June 15. As a result of these negotiations, the parties have reached the Agree- ment set forth below. 3. The Agreement reached and tke approval of this Agreement by either the Commission or the Presiding Administrative Law Judge shall not constitute an ap- proval of cr a precedent regarding any principle or is- sue in this or any other proceeding. AGREEMENT 1. A five-year study program shall be conducted by the Public Utility Districts to investigate the effect of the projects and their operation on the downstream mi- gration of juvenile salmonids, the methods of improving protection of natural production of salmonids, and the methods of improving and increasing semi-natural and artificial production of salmonids from the Mid-Columbia River. The studies to be performed in 1980 and possible studies for subsequent years are set out in Appendix A. The obligation to conduct the tests is subject to the avail- ability of suitable and adequate numbers of test fish to be provided by the fisheries agencies. The studies to be conducted in years following 1980, the priority of studies in yielding data material to reso- lution of the issues before the Commission in this pro- ceeding and their experimental design will be determined by a majority of the Studies Committee composed of 135a three biologists representing the Public Utility Districts and three biologists representing all other parties. If there is no agreement on either the studies to be con- ducted or their design, then a decision on these questions will be made by a biologist who shall be acceptable to a majority of the Studies Committee. This person shall be chosen accordirg to the issue before the Committee. The Studies Committee’s recommendations, including rec- ommendations to perform studies requiring expenditures in excess of the annual budgets referred to below, shall be submitted in writing to the PUDs at least annually, and not later than November 15. The Studies Committee or its designee(s) may review bids for the performance of studies and make recommendations to the PUDs on award of those contracts. The cost of studies will be shared by the PUDs in such proporaticn or amounts as they shall agree among themselves, and the costs of study design, implementa- tion and analysis shall not exceed $500,000 annually (1979 dollars), unless authorized by the Public Utility Districts. The cost limitation of $500,000 does not in- clude operation and maintenance costs or capital expendi- tures for production facilities. The Studies Committee may recommend studies pertaining to reasonable struc- tural changes as may be necessary for the installation and testing of prototype bypass systems, but may not recommend such installation for at least two years. The PUDs will consider recomniendations by the Studies Committee for studies requiring expenditures in excess of $500,000 per year, and will authorize those studies that are likely to yield data material to resolution of the issues before the Commission in this proceeding and if prudent budgetary constraints permit. All parties to the proceeding, including staff, will be given a reasonable opportunity each year to review and comment upon spe- cific study plans prior to their implementation. The PUDs’ agreement to study and test prototype by- pass systems does not constitute agreement that such 136a by-pass systems are an appropriate long-term solution for protection of the fishery resource on the Mid-Colum- bia River. 2. As long as operation of the upstream federal proj- ects and reservoirs does not prevent it, the daily average minimum flows to be maintained at each dam during the term of the studies shall be those determined in accord- ance with the following schedule. Apr.1 Apr.16 Apr. 26 May 1 June 1 Apr.15 Apr.25 Apr. 30 May 31 Junel5 Wells 50,000 60,000 100,000 115,000 110,000 Rock Reach 50,000 60,000 100,000 115,000 110,000 Rock Island 60,000 60,000 110,000 130,000 110,000 Wanapum 60,000 60,000 110,000 130,000 110,000 Priest Rapids 60,000 60,000 110,000 130,000 110,000 3. Spill. A. Period. The period for spill provided herein at each of the dams wiii begin on the following dates, and will continue for 30 days or until approximately 80% of the migrating juveniles have passed the dams, which- ever is sooner. When 80% of the migrating juveniles has passed the dam will be determined by a majority of the Designated Representatives or, in the absence of a ma- jority within a reasonable time, by the Studies Coordi- nator: Project Date Wells April 15 Rocky Reach April 25 Rock Island April 25 Wanapum May 1 Priest Rapids May 1 The date of commencement of the spill at each dam is subject to modification upon agreement by a Desig- nated Representative of the Washington Departments of 137a Fisheries and Game, of the National Marine Fisheries Service, and of the Public Utility District responsible for operation of the dam. B. Amount. The amount of water to be made avail- able for spill shall not exceed on an annual basis the amounts determined for each dam by reference to Ap- pendix B, lines 1 and 2. C. Rock Island. When the main units of the first powerhouse are not in operation, the amount of water available for spill at Rock Island dam shall be reduced proportionately to the amount of reduction in dam- related mortality (as discussed below) from the Rock Island bulb turbines~as compared with Kaplan turbines in use at projects in the Columbia River basin. The basis for comparison shall be the bulb turbine mortality test conducted at Rock Island during 1979 and any previously published turbine mortality data for projects in the Co- lumbia River basin. The comparative review of test data will be accomplished by an Ad Hoc committee composed of two representatives of the fishery agencies (Charles Junge, Wesley Ebel), two representatives of the Public Utility Districts (Dan McKenzie, Donald Chapman), and one independent representative (Douglas Chapman). The Ad Hoc Committee shall review the reliability of the results of the tests, and shall use such results as are found to be reliable by a majority of the Committee. As determined by a majority of the Ad Hoc Committee, the amount of water to be made available for spill in con- nection with operation of the second powerhouse shall be calculated by multiplying the ratio of all mortalities at Rock Island that are affected by the spill to all mortali- ties at other dams in the Columbia River basin that are affected by spill by the amount of water otherwise de- termined to be available in accordance with Paragraph 3B. If the majority of the Ad Hoc Committee determines that a mortality such as forebay or tailrace mortality, is affected by spill but was not measured in the Rock 138a Island Test or the tests conducted at other dams in the Columbia River Basin, then a majority of the Ad Hoc Committee shall rely on its best estimate of that mor- tality in calculating the foregoing ratio. Use of the mortality data from other dams does not imply its re- liability or acceptance for any other purpose. During the period when one or more of the main units of the first powerhouse is in operation, spill shall be accomplished from Gate 1 (at a daily average rate of 2000 cfs during the period of spill and an instantaneous minimum flow of 1000 cfs) in accordance with Para- graph 3.D. The amount of water to be made available for spill in connection with operation of the first power- house shall be in addition to the amount of water made available for spill in connection with operation of the second powerhouse, provided that the total amount of spill shall not exceed that determined in accordance with Paragraph 3.B. This assumes that the first powerhouse will be used for neak load generation. In the event that its use is shifted from peak to base load generation, then a majority of the Ad Hoc Committee may make appropri- ate adjustments to the amount of spill to be made from Rock Island dam, up to the amounts otherwise provided for in Appendix B. If an emergency condition exists, the decision shall be made by the Designated Representatives or, in the absence of a majority within a reasonable period of time, by the Studies Coordinator. D. Use of Spill. Water shall be spilled up to the amounts determined in accordance with Paragraph 3.B. and 3.C. above, as it is required to effectively move fish safely past the dams. The amount, timing of commence- ment and duration of spill required to move fish when they are present will be determined on a continuing basis by a majority of the Designated Representatives. If a majority of the Designated Representatives cannot be contacted within a reasonable amount of time, the deci- sions to begin and terminate spill, and the decision on 139a the amount of spill to be accomplished will be made by the Studies Coordinater, as described below at Paragraph 5, or by his designee, at each dam. Unless a greater amount of spill is authorized as described below, the amount of spill available daily will be limited to 10% of the daily average flow. During the period of peak migra- tion and on written notice of not less than three working days to the Licensee by a majority of the Designated Representatives (or by the Studies Coordination when a majority of the Designated Representatives cannot be contacted for their approval within a reasonable time), the amount of spill may be increased to not more than 20% of the daily average flow. Censistent with project design, spill may be directed by the Designated Repre- sentatives (or the Studies Coordinator when a majority of the Designated Representatives cannot be contacted for their approval within a reasonable period of time) to be made from surface spill facilities. E. Supplemental Spill. If at the conclusion of the 30-day spill period provided for in Paragraph 3.A 80% of the run has not passed a dam, then supplemental spill shall be available at that dam. The amount of supple- mental spill shall be determined by the election of either (a) until 80% of the run has passed the dam, the pre- viously unspilled portion of water provided in Paragraphs 3.B and 3.C, or (b) for a period of 15 days or until 80% of the run has passed, whichever is sooner, an amount of water determined in accordance with Appendix B, line 3. If the Designated Representatives elect option (b) for use at Rock Island Dam, then the amount of water to be made available shall be determined by apply- ing the ratio calculated under Paragraph 3.C to the water volume determined by use of Appendix B, line 3. Use of the supplemental spill shall be in accordance with Paragraph 3.D. If 80% of the migrating juveniles have not passed the dam, and the water provided for in Para- graphs 3.B. and 3.C. has been exhausted by the end of 140a the 30-day period, then the Designated Representatives shall elect option (b). The determination of whether 80% have passed the dam and any election of supple- mental spill shall be made not later than the end of the 30-day period provided for in Paragraph 3.A. by a ma- jority of the Designated Representatives or, if a majority is not available within a reasonable period of time, by the Studies Coordinator. This determination and election shall be communicated to the PUDs by written notice and shall include a brief statement of the facts relied upon in making the determination. 4. Hatchery Production. During the term of the studies, the Public Utility Districts shall make available the following hatchery production capacity. During the term of the studies, each PUD shall bear the operation and maintenance expenses associated with the operation at its own facility subject to the reallocation of such ex- penses among the PUDs by their agreement. Expenses of the fisheries agencies in operation and maintenance which are attributable to the PUDs under this Agree- ment shall be subject to audit by the PUDs. Wells Hatchery: 25,000 pounds of capacity for steel- head trout, or equivalent loading of other species. Turtle Rock/Rocky Reach Annex: 75,000 pounds of capacity for fall chinook salinon, or equivalent loading of other races. Priest Rapids: In addition to the foregoing, three sec- tions of the Priest Rapids spawning channel shall be converted to rearing facilities according to the plan set forth in the CH2M Hill Mid-Columbia Production Op- timization Study. The approximate capacity of this fa- cility when completed shall be 75,000 pounds of fall chinook salmon or equivalent loading of other races. Ex- cept as provided below with respect to “Other facilities,” and except in accordance with Paragraph 9, this shall be Grant PUD’s sole obligation to provide hatchery produc- l4la tion or rearing facilities during the 5-year term of this Agreement. Utilization of the Priest Rapids spawning channel also may be subject to any orders entered by the FERC in licensing of additional units for Project No. 2114. Other facilities: Up to four additional sections of the Priest Rapids spawning channel! shall be made available for rearing facilities, developed with reuse of the water from the first three sections of the spawning channel. These sections will be available, at the election of the PUDs, to provide 25,000 additional pounds of capacity for fall chinook or equivalent loading of other races. It also will be available, at the PUDs election, to make up any capacity deficit (as discussed below) for Wells, Turtle Rock/Rocky Reach or Priest Rapids as those are de- scribed above. In the alternative, to obtain this additional capacity, the PUDs may elect to utilize any existing unused hatchery/rearing capacity in the Columbia River basin. If such election is made, the fisheries agencies agree to make such unused capacity available for the PUDs use, the reasonable operating and maintenance expenses of which productien shall be borne by the PUDs. In the event that the additional four sections of the Priest Rapids spawning channel are not capable of producing the additional 25,000 pounds of capacity and/or making up the capacity deficit for Wells, Turtle Rock/Rocky Reach or Priest Rapids, then it shall be produced in any unused capacity available in the Columbia River basin. The determination of the species to be produced shall be the decision of the state, tribal and federal fishery agencies following consultation with the PUDs and the FERC Staff. The production of 200,000 additional pounds as noted above shall neither impair nor reduce the effectiveness of the existing hatchery production commitments of the 142a PUDs. The means for achieving these production in- creases shall be reviewed in advance by the state, tribal and federal fishery agencies, and annually thereafter. In the event that the loading rate estimates for Wells or Turtle Rock/Rocky Reach hatcheries or the first three sections of the Priest Rapids spawning channel are in error, and it is not physically possible to maintain, with application of the best operation and maintenance prac- tices to optimize production levels, the production ca- pacities defined above and produce healthy fish suitable for release, then additional capacity shall be provided by the PUDs according to the elections stated above. The loading rates used in this evaluation shall not be less than those now used in hatcheries/rearing facilities operated by federal and state fisheries agencies under similar conditions. Grant PUD shall use its best efforts to complete the improvement of the spawning channel at Priest Rapids for the 1980 brood year; provided, however, that if suffi- cient numbers of eggs are not available from the fisheries agencies improvements of the spawning channel need be made only to the extent that eggs are available for pro- duction. For this purpose, the fisheries agencies will ad- vise Grant PUD as to egg availability by November 1, 1980, and on each November 1 thereafter for that brood year. 5. Subject to the approval of a majority of the Studies Committee, the Public Utility Districts will designate a Studies Coordinator to coordinate the studies to be con- ducted in accordance with Appendix A. The Studies Co- ordinator shall coordinate the preparation of reports of the studies conducted. 6. The agencies of the State of Washington which are parties to this proceeding shall provide such permits and authorizations as are required to perform the studies described in Appendix A. The agencies also shall support 143a the Public Utility Districts in obtaining such permits and authorizations as are required from other state and fed- eral agencies to perform those studies. 7. The Public Utility Districts shall use their best efforts to publish a draft report of each year’s studies, as described in Appendix A, by October 1 of the year follow- ing each migration season. Reports of any field study conducted pursuant to this Agreement by any of the par- ties to these proceedings with respect to the spring migra- tion in the Mid-Columbia shall be made available upon request to the other parties and staff for review and comment before publication or general circulation. Com- ments to any draft report shall be provided by all parties (and the FERC Staff) not later than 60 days following publication of the draft report. A final report shall be prepared within 90 days of the close of the comment period. Comments submitted shall be accepted in the report, or incorporated as an appendix to the report. All reports shall be filed with the Federal Energy Regulatory Commission. 8. All parties shall have full access to all data gen- erated by, and in, the course of the studies. Subject to the control and supervision of the Studies Coordinator, all equipment used in the course of the studies shall be subject to inspection and observation by authorized repre- sentatives of any of the parties. 9. The Hearing scheduled for January 28, 1980, shall be cancelled. At any time after the completion of the first year of study and the availability of any report of study results, any two parties to this proceeding (includ- ing the FERC staff) may, on thirty days’ written notice to the other parties, convene a settlement conference for the purpose of seeking, on the basis of the available study results and reports, modifications to the minimum flow or spill requirements described above, provided that a majority of the Studies Committee has recommended it. l44a Additionally, at the end of three years of study, any two parties may request, upon notice as provided herein, further hatchery production for the remainder of the study term, provided that the incremental mortality (as measured above natural mortality) attributabie to the Mid-Columbia River dam system (as measured from the confluence of the Okanogan to the head of McNary pool) is determined, on the basis of data considered by the Studies Committee to have a high level of reliability, to be greater than 62%. The comparison of 62% shall be to the average of the mean mortalities determined from the studies. The natural mortality rate for the Mid- Columbia (as calculated on a per-mile basis) shall be based on the mortality measured in the Hanford reach from the area below Priest Rapids Dam to the head of the McNary pool. For the purpose of this paragraph the system and natural mortality levels shall be determined from at least two years of system mortality studies which are designed to achieve a high degree or reliability, and for which sufficient numbers of test fish are made avail- able by the fisheries agencies. The system mortality tests shal] not be conducted during periods in which the flows are substantially greater or less than the flows specified in Paragraph 2. Additionally, at the end of two years of study, any two parties may request, upon notice as provided herein, such reasonable structural modifications as may be neces- sary for the installation of prototype by-pass systems at one or more dams, provided that a majority of the Studies Committee has recommended it. In the event that any two parties believe that the PUDs have unreasonably rejected a recommendation of the Studies Committee to perform studies requiring ex- penditures in excess of $500,000, they may request a settlement conference. The notice required by this Paragraph shall include a specific statement of the change requested to the Settle- 145a ment Agreement and shall briefly describe the reasons for the change. Within ten days after receipt of said notice, any other party may give similar notice as to other changes which should be considered. In the event that the settlement conference is unable to reach a resolution, any two parties may petition the Administrative Law Judge or Commission to modify the requirements of this Agreement on the basis of the available study results and reports developed from the study program provided for by Paragraph 1. The use of 62% system mortality as the basis for modifying this Agreement is not intended to be a stand- ard for determining ultimate mitigation levels at the conclusion of the study period; nor does it imply that 200,000 pounds of hatchery production constitutes ade- quate mitigation if system mortality is less than 62%. Neither does this Agreement to provide hatchery produc- tion constitute any admission by the PUDs that any miti- gation in addition to that now specified in the PUDs’ licenses is required of the PUDs, or that the issue of mitigation is before the Commission in this proceeding. 10. On the completion of the term of study provided for by this Agreement, or by the Agreement as it may be amended, any party may petition the Presiding Ad- ministrative Law Judge or the Commission for the is- suance of an order establishing further procedural dates in this portion of the proceeding. 146a APPENDIX A STUDIES The following studies will be undertaken in 1980 by the Public Utility Districts. Methods and specific ob- jectives will be developed with open exchange of ideas and information between PUD and agency personnel. Timing and emphasis of post-1980 studies will depend on the recommendations of the Studies Committee and upon results of the 1980 studies. The constraints on testing and studies include the following: 1. Gravity is to be used as much as possible in by- passing or transporting fish. 2. Hatchery fish te be used in studies which active movement will be used when smolting and ATPase levels appear acceptable. 3. Insofar as possible, hatchery fish to be marked should be marked at least three weeks in advance of use in tests. Studies in 1980: A. Increased Production: 1. ATPase and smolt condition monitoring. 2. Acceleration of spawning (including hormonal and photo period alteration). 8. Preliminary hatchery siting, including litera- ture review and site surveys on the Mid- Columbia River. B. Survival Augmentation. 1. Evaluation of Rock Island bypass and study feasibility of collection. 147a 2. Development of bypass systems using forebay skimming. 8. Airlift evaluation in gatewalls at Rocky Reach (coordinated with John Day). 4. Review feasibility of transport and imprint- ing. 5. Monitoring of migrant distribution using gate- well dipping and hydroacoustic application. C. Mortality Estimates 1. Wells turbine and spill studies shall have first priority in 1980. 2. Rocky Reach spill and turbine mortality. 8. System-wide and Hanford Reach mortalities. 4. If required and test fish are available, mor- talities in connection with Wanapum sluiceway (unless this problem is alleviated through structural modifications at Wanapum). Possible Studies After 1980 May Include the Following: 1. Continue migrant monitoring and implement hy- droacoustics. 2. Mortality in skim spills. 8. Turbine and Project mortalities at Wanapum, > op Priest Rapids and first powerhouse Rock Island. Continue studies of spawning acceleration. Initiate tra. srt pilet studies. Effectiveness of split gates—Rock Island. Evaluate collection and bypass at Rock Island. Semi-natural rearing at Priest Rapids and Wells. 148a Annual evaluation of system-wide and Hanford Reach mortality. Habitat, seeding and rearing in tributaries. . Data evaluation, coordination and modeling. Predation study leading to management-scale tests. Preliminary hatchery siting, including literature review and site surveys in non-Mid-Columbia areas, if Mid-Columbia River sites are not available. 149a APPENDIX B (Line 1) 780 , 000 ' 600 (line 2) 669,000 (line 3) 100,000 8 £4 42 4s . ££ 2S 2: 8 8 & 5-4 2 2: 2 2 AEPaAINs BUNTOA TIOUM! Arne — Arenuetl OAT erawmTOD ant>inindom 1 TrIdv 11490] 9108-uoOTTTTH) SOTICd A 32 150a C. Notice of Issuance of Annual License UNITED STATES OF AMERICA FEDERAL ENERGY REGULATORY COMMISSION Project No. 943 PUBLIC UTILITY DISTRICT No. 1 OF CHELAN COUNTY, WASHINGTON Notice of Issuance of Annual License (s) (January 4, 1980) On January 18, 1977, Public Utility District No. 1 of Chelan County, Washington, Licensee for Rock Island Project No. 943, located on the Columbia River in Chelan a [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2456%3A2. Public record. Not legal advice.