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HomeMy WebLinkAbout20240806IPC to Staff Response No. 31(a) - Attachment - 1980 Settlement Agreement - HCC.pdf Response to Staff Request No. 3 1 a - Attachment UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION Idaho Power Company ) Docket No . E-9579 SETTLEMENT AGREEMENT AGREEMENT made and entered into this 14th day of February, 1980, between and among the UNITED STATES DEPARTMENT OF COMMERCE acting by and through the NATIONAL MARINE FISHERIES SERVICE, THE STATE OF IDAHO acting by and through THE IDAHO FISH AND GAME DEPARTMENT, THE STATE OF OREGON acting by and through THE OREGON DEPARTMENT OF FISH AND WILDLIFE, THE STATE OF WASHINGTON acting by and through THE WASHINGTON DEPARTMENT OF FISHERIES , and THE WASHINGTON DEPARTMENT OF GAME, hereinafter collectively referred to as "Petitioners" or "Fishery Agencies" , and the IDAHO POWER COMPANY, hereinafter referred to as "Licensee" : I . By entering into this agreement, Petitioners and Licensee intend to settle all issues except as might be advanced under paragraph III below, raised by this proceeding related to the numbers of salmon and steelhead lost or destroyed as a result of the construction of, and operation within the exist,, ng. license for, Project No. 1971, and to terminate the proceeding now pending before the Federal Energy Regulatory Commission identified as Docket No. E-9579, except as Commission approval of drawings may be necessary. II . Idaho, Oregon and Washington agree that the numbers of fish herein agreed upon constitute full and complete mitiga- tion for all numerical losses of salmon and steelhead caused by or in any way associated with the construction of, and operation within the existing license for, Project No. 1971 . Idaho, Oregon, and Washington further agree not to contend or support contentions by others before any agency or in any pro- ceeding that additional fish or fish facilities are required by or in any way associated with the construction of, or opera- tion within the existing license for, Project No. 1971 . III . Petitioners agree that they will not for the duration of the current Project No. 1971 license seek relief from the Federal Energy Regulatory Commission on any matter concerning Licensee ' s responsibility to compensate for salmon and steelhead losses under the Fish and Wildlife Coordination Act or the Federal Power Act nor seek changes in the operation of Project No . 1971 except that, on the basis of technological i advances , or substantial changes in condition, Petitioners may seek from the Federal Energy Regulatory Commission additional relief, if necessary, related exclusively to the enhancement of out-migration conditions for fall chinook smolts in the free- flowing stretch of the Snake River below Project No. 1971 , after they are released by Licensee pursuant to this agreement. IThe parties agree that changes in operations within the restrictions of the existing license for Project No . 1971 shall not alone be considered a substantial change of condition. ' Further, in the event that storage space upstream of Project No . 1971 is hereafter acquired by the fishery agencies for the purpose of preserving or enhancing fish habitat or survival downstream of Project No. 1971 , if the parties are unable to agree on the conditions under which water released from such space will be passed through Project No . 1971, 1 Petitioners or Licensee may , petition the Federal Energy � Regulatory Commission for an order setting forth the conditions I � under which water released from such storage space will e passed through Project No . 1971 by Licensee . IV. i ' The numbers of smolts and facilities to be provide and operations to be conducted by Licensee as mitigation for f salmon and steelhead losses caused by construction and 1 , operation of Project No . 1971 within the existing license for I' Project No . 1971 are as follows : I -2- A. Licensee shall provide, operate and maintain fish traps, fish handling and fish transporting facilities , and fish hatchery facilities, as necessary, to provide an annual production of 1, 000 , 000 fall chinook smolts, 4, 000, 000 spring chinook smolts, and 400 , 000 pounds of steelhead smolts . The facilities to be provided and their operation shall be as follows : 1 . Spring Chinook. Annual production by Licensee of 4 million spring chinook smolts shall be accomplished by utilizing the following described facilities in the following described manner, all costs for which shall be borne by Licensee, unless otherwise specified: ( a) At a site on the Snake River, at or near the location of Project 1971, Licensee shall, to the extent possible, trap a sufficient number of adult spring chinook to permit the taking of a quantity of eggs reasonably necessary to produce one million smolts for release by Licensee in the Snake River near Hells Canyon Dam. To accomplish this , Licensee shall : (1 ) Continue to operate and maintain the exist- in g barge trap at its present location at the face of Hells Canyon Dam on a daily basis commencing on May 1, or such later date as the fishery agencies request, and continuing not later than July 15, water conditions permitting, or until a sufficient number of adults has been trapped in said barge trap and the trap described in subparagraph ( a) (2 ) immediately following, to reasonably provide for the production of one million smolt; provided, however, that, at any time upon the request of the fishery agencies, adult fish trapped during the above -3- specified period of trap operation shall be made available to the fishery agencies pursuant to subparagraph ( a) (4) ; and provided further that all trapped adults made available to the agencies pursuant to subparagraph (a) (4) shall, to the extent necessary, be applied toward Licensee ' s obligation to trap sufficient adults for production of one million smolts . (2 ) Construct, operate and maintain a second adult trapping device, designed and built pursuant to drawings approved by the Commission and Idaho Department of Fish and Game as hereinafter provided, at a location on the Snake River approximately miles downstream from Hells Canyon Dam, on the Oregon shore. Said trap shall be operated on a daily basis commencing on May 1, or such later date as the fishery agencies request, and continuing not later than July 15, water conditions permitting, or until a , 'sufficient number of adults has been trapped in this trap and the barge trap described in subparagraph ( a) (1 ) immediately hereinabove, to reasonably provide for the production of one million smolts ; provided, however, that, at any time upon the request of the fishery agencies , adult fish trapped during the above specified period of trap operation shall be made available to the fishery agencies pursuant to subparagraph (a) (4 ) ; and provided further that all trapped adults made available to the agencies pursuant to subparagraph ( a) (4 ) shall, to -4- r the extent necessary, be applied toward Licensee ' s obligation to trap sufficient adults for production of one million smolts . (3 ) All adult spring chinook trapped shall be transported to Licensee ' s Rapid River Hatchery or released to the fishery agencies under subparagraph (a) (4) . To facilitate an efficient transportation program, Licensee may, when water condi- tions permit, temporarily accumulate and hold trapped adults in the holding pond existing at Licensee ' s Oxbow Hatchery or in the traps before transporting them to the Rapid River Hatchery or hold them at other facilities , and take, fertilize, and eye eggs at such other facilities , with the agreement of the fishery agencies . The holding pond at Oxbow shall be cleaned and refurbished by Licensee before it is used for temporary holding purposes . (4 ) Within the trap operation period above stated, and at the request of the fishery agencies , Licensee shall continue to operate the two traps described herein when not trapping adults to transport to Rapid River to meet Licensee ' s production obligations set out in subparagraph ( a) above . Licensee shall place all adults so trapped in appropriate holding facilities and make them and the adult loading facilities available to the fishery agencies for immediate transporting and use, as they desire, at the agencies ' cost. -5- r.y. (b) At Licensee ' s Rapid River Hatchery the following alterations in operations shall be made: (1 ) Licensee shall continue to operate and maintain Rapid River Hatchery, but shall reduce its present smolt production from Rapid River spring chinook spawners to an annual production of 2 million smolts, and shall segregate said fish from all other fish during all stages of development at the Hatchery. (2 ) In addition to continued rearing of two million smolts produced from spawners trapped at Rapid River, Licensee shall segregate, hatch and rear to smolts, one million fish, produced from adult spawners trapped in the Snake River near Hells Canyon Dam, or from a combination of such spawners and adults trapped at Rapid River stock as provided in paragraph (3 ) immediately below. These smolts shall then be transported and released at or near ,j Hells Canyon Dam. (3 ) In years when it appears that the two adult traps near Hells Canyon Dam will be unable to provide sufficient spawners for the production of one million smolts , Licensee shall , at the request of the fishery agencies, undertake at Rapid River to trap and spawn a sufficient additional number of adults , which, when combined with those trapped at Hells Canyon Dam, will reasonably provide adequate eggs for one million smolts to be released at Hells Canyon. -6- i (b ) At Licensee ' s Rapid River Hatchery the following alterations in operations shall be made : (1 ) Licensee shall continue to operate and maintain Rapid River Hatchery, but shall reduce its present smolt production from Rapid River spring chinook spawners to an annual production of 2 million smolts, and shall segregate said fish from all other fish during all stages of development at the Hatchery. (2 ) In addition to continued rearing of two million smolts produced from spawners trapped at Rapid River, Licensee shall segregate, hatch and rear to smolts, one million fish, produced from adult spawners trapped in the Snake River near Hells Canyon Dam, or from a combination of such spawners and adults trapped at Rapid River stock as provided in paragraph (3 ) immediately below. These smolts shall then be transported and released at or near -4 Hells Canyon Dam. (3 ) In years when it appears that the two adult traps near Hells Canyon Dam will be unable to provide sufficient spawners for the production of one million smolts, Licensee shall, at the request of the fishery agencies, undertake at Rapid River to trap and spawn a sufficient additional number of adults , which, when combined with those trapped at Hells Canyon Dam, will reasonably provide adequate eggs for one million smolts to be released at Hells Canyon. -6- (c) At Licensee ' s Pahsimeroi Hatchery, the following additions and alterations shall be accomplished in the method of operations and in the facilities of the Hatchery to accommodate the production of one million chinook smolts annually: (1 ) Without interfering with the existing steelhead program at the Hatchery, Licensee shall trap and spawn from available adult chinook salmon returning to the existing Pahsimeroi trap, up to a sufficient number to reasonably provide for the production of one million smolts , as directed by the fishery agencies . ( 2 ) The chinook eggs so taken from the trapped adults shall be hatched in the existing Pahsimeroi hatching facilities, and, upon hatching, the fry shall for a period of initial rearing be placed in four concrete initial rearing ponds . Said initial rearing ponds , each with dimensions of four feet by one hundred feet, shall be constructed near the existing adult holding ponds, and shall be supplied with an adequate supply of water. (3 ) After an initial rearing period, the fry shall be removed to the two existing Pahsimeroi acclimation ponds , where they will be reared to smolt size and released into the Pahsimeroi River. The water supply for each of the existing acclimation ponds shall be increased to approximately 10 cfs . (4) At the request of the fishery agencies , if adult chinook salmon in excess of the I -7- number required meet Licensee ' s production obligations are taken at the Pahsimeroi River trapping facilities , they shall be placed in the holding facilities and made available to the fishery agencies for immediate transporting and use at their cost, as they desire. (5 ) Petitioners may, at their cost, construct adult loading facilities at Licensee ' s Pahsimeroi Hatchery. (d) At the request of the fishery agencies, Licensee shall deviate from the above schedule of release points and relative smolt production from adults trapped in the Snake River, Rapid River or Pahsimeroi River, within the total of 4, 000, 000 smolts . All added costs resulting from any such deviation shall be borne by the fishery agencies . In the event that the proposed use of the additional 1 , 000, 000 spring chinook smolts at Rapid River for rebuilding runs in the Snake River does not result in satisfactory adult returns, kathe parties agree that the fishery agencies will, within a reasonable time and after consultation with the parties, release such additional smolts in other areas with the - goal of achieving a satisfactory rate of adult returns . 2 . Fall Chinook. Licensee will modify its existing Oxbow Hatchery facilities to permit raising a total of 1 , 000 , 000 fall chinook smolts annually. Licensee will contract with appropriate state and federal agencies or otherwise provide for the trapping of sufficient adult fall chinook salmon and the fertilizing and eyeing up of sufficient eggs to permit raising up to 1 , 000, 000 fall chinook smolts . The eggs will be transported by Licensee -8- v to its Oxbow Hatchery for rearing. The facilities will be ready for use within 6 months of written notification by the fishery agencies of the availability of eggs . The smolts will be transported by truck by Licensee to and released at appropriate points in the Snake or Columbia Rivers, as determined by the fishery agencies . Pursuant to paragraph III on page 2 of this agreement, the Petitioners may monsitor the survival of the fall chinook smolts provided under this paragraph and take action essential for the protection of those smolts in the free- flowing stretch of the Snake River below Project No. 1971 . 3 . Steelhead Trout. ( a) Licensee will continue to operate and maintain its existing Pahsimeroi River Hatchery facil- ities, to permit trapping sufficient upstream migrant adult steelhead trout and the taking, fertilizing and eying up of sufficient eggs to permit .raising 200 , 000 pounds of steelhead trout smolts annually at its Niagara Springs hatchery facilities . The eyed eggs will be transported to Licensee ' s Niagara Springs hatchery facill-tiQs for rearing. At the request of the agencies , Licensee will provide additional eyed eggs , if available from its Pahsimeroi River facilities , up to their capacity, to permit building up the production of the Niagara Springs facilities to 400 , 000 pounds of steelhead trout smolts . (b ) Licensee will continue to operate its existing Niagara Springs Hatchery facilities and modify them as necessary to permit the annual total production of 400 , 000 pounds of steelhead trout smolts , not to exceed a total of 3 , 200, 000 smolts . Licensee will transport the smolts from the Pahsimeroi River stock to its Pahsimeroi -9- l River facilities for release and the smolts from the Snake River stock to Hells Canyon Dam for release, except during the time prior to receiving enough eggs from the Snake River, stock to permit raising 200 , 000 pounds of steelhead trout smolts , excess smolts from Pahsimeroi River stock will be taken to Hells Canyon Dam for release. (c ) Licensee will operate and maintain the trapping facilities described in paragraphs l(a) (1 ) and 1 ( a) (2 ) hereof for the purpose of trapping upstream migrant adult steelhead trout. Said traps shall be operated on a daily basis, water conditions permitting, commencing each autumn on September 1, or on such later date as the fishery agencies request, and continuing not later than December 20, and again each spring commencing on March 1, or on such later date as the fishery agencies request, and continuing not later than April 30, or until a sufficient total number of adults has been trapped to reasonably provide for the annual production of 200 , 000 pounds of steelhead smolts . Trapped adults will be held in Licensee ' s existing Oxbow facilities until mature, at which time their eggs will be taken, fertilized and eyed up at the Oxbow facilities , and then transported for rearing to Licensee ' s Niagara Springs facilities, where they will be kept separate from the Pahsimeroi River stock. The resulting smolts shall be hauled to Hells Canyon Dam and released below the dam by the Licensee . (d) If excess adults are taken at the Pahsimeroi River or Hells Canyon Dam trapping facilities, they shall be placed in the holding facilities -10- I r . and made available to the fishery agencies for immediate transportation and use at their cost, as they desire . (e) Petitioners may, at their cost, construct adult loading facilities at Licensee ' s Pahsimeroi Hatchery. ( f) At the request of the fishery agencies, Licensee shall deviate from the above schedule of release points or relative production of Pahsimeroi River and Snake River stocks within the total 400 , 000 pounds of steelhead trout smolts . All added costs resulting from any such deviation shall be borne by the fishery agencies . B. By agreement with the fishery agencies , Licensee may deviate from the npmbers or pounds of smolts to be provided, or the construction, maintenance and operation of any of the facilities herein described. C . In the event that sufficient water is not avail- able to permit annual production of 400, 000 pounds of steelhead trout at Licensee ' s Niagara Springs facilities , any additional production required beyond that possible at the Niagara Springs facilities shall b� accomplished as mutually agreed by Licensee and Petitioners . In the event agreement cannot be reached, any party hereto may petition the Commission for an order resolving the matter. V. i November 1, 1979, through May 31, 1982 , Licensee will operate I Project No . 1971 according to the following schedule, unless relieved therefrom by any of the Exceptions set out below: I 1 . November 1 Through November 30 . Outflow from Hells Canyon Dam shall be reduced to a low-flow discharge and continuously maintained for at least 4 hours each day. The low-flow selected shall be between 12 , 500 cfs and 10 , 000 cfs unless the preceding 7-day average inflow to Brownlee Reservoir is less than 10 , 000 cfs . If the 7-day average inflow to -1�- Brownlee is between 10 , 000 cfs and 8 , 500 cfs, the 4-hour low- flow shall be no less than the 7-day average inflow. If the 7- day average inflow is less than 8 , 500 cfs , the 4-hour low-flow shall be at least 5, 400 cfs . The maximum permissible ramp rate shall be 1 . 7 feet per hour at Johnson' s Bar, which for the purposes of this agreement the parties agree will be 2 .0 feet per hour measured at Hells Canyon guage . Exception: Should an emergency occur that requires the operation of Project No. 1971 during the November 1 to November 30 period contrary to the aforesaid scheme, project discharges shall be brought back into conformance with the low- flow scheme as soon as practicable after the emergency has passed. 2 . December 1 Through April 30 . An instantaneous minimum flow requirement shall be determined from the 4-hour low-flow discharges that occurred during the preceding November 1 through November 30 period in the following manner: The minimum flow shall be equivalent to that flow necessary to maintain the Hells Canyon Gage at an elevation not more than 1 foot below the 6th highest 4-hour low-flow discharge that occurred during the preceding November 1 through November 30 period, but not less tpan 8 , 500 cfs , unless the 6th highest 4- hour low-flow during the November 1 through November 30 period is 5 ,400 cfs ; in such case, the minimum flow shall be 5 ,400 cfs . If, during the November l through November 30 period, an emergency or emergencies forces . deviation from the 4-hour low-flow operating scheme, those days of emergency operation shall be disregarded in determining the minimum flow for the December 1 through April 30 period. 3 . May 1 Through May 30 . The maximum permissible ramp rate shall be one-half foot per hour at the Hells Canyon Gage . 4 . June 1 Through October 31 . Present license restrictions will apply. -12- i Exception: Licensee may deviate from any of the requirements set out in Paragraphs 1 , 2 and 3 hereof in the event of an emergency. For the purpose of this Agreement, an emergency is defined as a loss or partial loss of a generating unit or resource, or access thereto, whether on or off the Company' s system, or short term adverse weather, or streamflow conditions, which result or may likely result in the Company' s being unable to meet its firm load requirements . Exception: During the month of March, drafting of Brownlee Reservoir will not be required solely to meet the target minimum flow established as set out in Paragraphs 1 and 2 hereof. Exception: If the March 1 Weiser run-off forecast by the SCS is 4.4 million acre-feet or less for the April through September period, then on the date the Corps of Engineers releases Idaho Power Company from any requirement of maintaining storage space in Brownlee Reservoir, or April 1 , 6 whichever comes first, the Project minimum flow requirement becomes 5, 000 cfs . 5 . In years subsequent to 1982 , Licensee will attempt to operate Project No . 1971 in such a manner as to reduce adverse effec�s on anadromous fish spawning, rearing and out-migration below the Project, consistent with the provisions of its license for Project No . 1971 and its obligations as a public utility. 6 . Licensee and Petitioners shall meet at least annually to exchange information and discuss possible Project operations to reduce adverse effects on anadromous fish below the Project. All parties to the proceedings in FERC Docket No . E-9579 shall be invited to attend and participate . 7 . Licensee will notify Petitioners as soon as possible concerning a 'condition which has or is likely to result in a deviation from the schedule pursuant to one of the stated exceptions . Notice shall be given to a person to be designated by the Idaho Department of Fish and Game. -13- r 8 . The implementation of the above plan of operation is contingent upon Licensee ' s receiving authority from the Com- mission to permit operation of the project pursuant to paragraph 1 above, relating to the maximum ramp rate of 1 . 7 feet per hour at Johnson' s Bar, which is different from the existing license . Licensee will apply to the Commission for a temporary operating variation to cover the months of November, 1979, 1980 and 1981 . Petitioners will support that application by Licensee before the Commission. VI . The parties will request the Commission to enter an order to the effect that: A. Licensee shall provide, operate and maintain fish traps , fish handling and fish transporting facilities , and fish hatchery facilities , as necessary, to provide an annual production of 1 , 000 , 000 fall, chinook smolts , 4, 000 , 000 spring chinook smolts , and 400 , 000 pounds of steelhead trout smolts , consistent with the provisions of the Settlement Agreement dated February 14, 1980 , executed by the fishery agencies an Licensee, which agreement is hereby approved. B. Final agreement has been reached among the fishery agencies and Licensee concerning numbers of salmon and steelhead to be produced by Licensee in mitigation of salmon and steelhead losses caused by or associated with the construction and operation of Project No . 1971 . C. The Licensee shall not commence construction of any facilities described herein until : ( 1 ) The Commission shall have reviewed functional drawings which shall be prepared by the Licensee in accordance with the Settlement Agreement respecting fishery resource mitigation entered into by Licensee and the fishery agencies of the States of Oregon, Washington, and Idaho, and the United States of America ' s National Marine Fisheries Service, dated February 14, 1980; and -14- I (2 ) Plans , specifications or construction drawings have been approved by the Idaho Department of Fish and Game, on behalf of Petitioners . D. Any previous orders of the Commission, or its predecessor, the Federal Power Commission, in any way in conflict herewith be rescinded. E. The Commission' s approval of this settlement shall not constitute approval of a precedent regarding any principle or issue in this proceeding. VII . The parties agree to submit a stipulation embodying Paragraph VI hereof and this Agreement to the presiding Administrative Law Judge in Docket No. E-9579 , and to provide testimony and exhibits in support thereof if required by order of the presiding Administrative Law Judge, and to support this Agreement before any court or agency in any proceeding, state or federal . Further, the parties agree to cooperate with and assist each other in efforts to secure licenses, permits and approvals from any government agency or entity which are or may become necessary for implementation or continued performance of the provisions of this agreement. IDAHO POWER COMPANY Licensee rwc � By: Ae—s3dent _ aw�E'S ATTE!S secretary . -15- STA'I'U OF I DAHO t;y and through the Fish and Game Commission and the Department of Fish and Game By: Ghalrman, Idaho Fish and Game commission Director, /Ldaho Department of - Fish and Game STATE OF OREGON E3y and through the Fish and Wild- life commission and the Department of Fish and Wildlife chairman, Oregon Fishe and W' dlife commission By:_ D, 1 Ctot-, ()I-?gon Depa-'tment of Fish and Wildlife ., ,. r STATE OF' WAaHINGTON By and thi•otlgh the Department + of Game and the Department of Fisaeries i 1iy j!,; .j ric t.on De art- . i•i �.�• ��i , � P nu:nL of Game By : irec or gt Il epart- ment of. r ' . heries ' -1G- UNITED STATES DEPARTMENT OF COMMERCE By and through the National Marine Fisheries Service By: ' -17-