19901210Exhibits.pdf

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niED UBEFORE THE IDAHO PUBLIC UTILITIES C~W~siSN
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EXHIBITS
IPCONos. 1 - 3 & 6
Staff Nos. 101 - 103
ICIP Nos. 201 - 202
November 27. 1990 Boise, Idaho
7-1EORICKCOURT REPORTING
537 W. Bannock
Suite 205
P.O. Box 578
Boise, Idaho 83701
'"[phone] .J
. . . We offer .. BaronData
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BEFOR Tl
IDAHO PULI UTLITIES COMMSSION
CASE NO. 1P-E-98
DAH POWE CQ AN
EXHBIT1
."" .ii eXHIBIT
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Idaho Public Utilities Commission
Office of the SGCí(~ary
RECEIV~D
SEP 24 1990
Boise, Idaho
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U~ITED STATES OF AMERICA
FEDERAL E~ERGY REGULATORY COM~ISSION
Before Commissioners: Martha O. Hesse, Chai rman;
Charles G. Stalon, Charles A. Trabandt,
Elizabeth Anne Moler and Jerry J. Langdon.
Twin Falls Canal Company
~orth Side Canal Company, Ltd.
Project No~ 2899-003
ORDER ISSUING LICENSE
(Major Project)
(Issued December 15, 1988)
On July 27, 1984, the Twin Falls Canal Company and the North
Side Canal Company, Ltd. (CC) filed a joint application for
license under Part I of the Federal Power Act (FPA) to construct,
operate, and maintain the Milner Hydroelectric Project No. 2899,
to be located at the existing Milner Dam and Twin Falls Main
Canal on the Snake River in Twin Falls, Cassia, Jerome, and
Minidoka Counties, Idaho. Parts of the project would occuPy
lands of the United States managed by the Bureau of Land
Management (BLM) of the Department of the Interior. The project
would consist of the Milner Dam and Reservoir, modifications to6,500 feet of the Twin Falls Main Canal to increase its capaci ty,
a control structure on the canal that would divert the additional
flow into a forebay, a penstock, a powerhouse located on the
irrigation canal 1.6 miles downstream of, the dam and containing a
single generating unit rated at 43,650 kilowatts, and a 1.4-mile-
long transmission .line.
Notice of the application has been published. The Idaho
Department of Fish and Game (IDFG) and the Idaho Department of
Wa ter Resources (IDWR) became intervenors in the proceeding. The
motions to inter~ene and comments filed by agencies and
individuals have be~n fully considered in determining whether to
issue this license. The issues raised by the intervenors are
discussed below.
I. Dam Safety and National Environmental Policy Act Compliance
The Commission currently is' in the process of preparing an
environmental impact statement (EIS) assessing, inter al ia, thepotential, cumulati ve impacts of the Mi lner Project No. 2899 and
three other proposed hydroelectric projects on the environmental
resources of the Snake River Basin. A draft EIS (DEIS) was
EXIBr1
CASE NO. IPC-€PACKW.lfl
PAGE 2 Of 82
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Project ~o. 2899-003 -2-
issued in ~ovember 198;. 1 Due to new circumstances and new
information received after the DElS was issued, a Notice of
Intent to Prepare a Supplement to the DEIS and to hold publ ic
meetings was issued on July 15, 1988; public meetings were held
in Twin Falls, Idaho, on Augu~t 19, 1988. At these meetings, CC
informed the Commission that there was a serious concern for the
structural integri ty of the 85-year-old Mi lner Dam and that
failure of the dam during the irrigation season could resul t in
near total crop fai lure on the 440,000 acres served by the
dam. 2
Following a meeting wi th CC and an inspection of Milner Dam,
the Commission's Division of Dam Safety and Inspections concluded
that there is a high risk of failure at the Milner Dam in the
event of a seismic event (earthquake). A complete dam failure
could lead to partial or total crop failure, since such a failure
would prevent diversion of ~ater into the irrigation canal.
CC intends to use the revenues from the sale of electric
power to be generated by the project to obtain' the funds
necessary to strengthen Milner Dam and upgrade its spillway. CC
states that i absent these revenues i funding repair of the dam
would result in severe economic hardship to many of the ; 1500 CC
shareholders who depend on irrigation waters from Milner Dam for
their livelihood. According to CCI having the shareholders bear
the total cost of repairs could cause some shareholders to lose
their farms and .would cause significant adverse impacts to a
local economy that is already suffering the effects of the
general economic problems of the farming industry.
The final EIS (FEIS) for the four projects on the Snake
River is not expeçted to be completed until late summer or early
fall of 1989. Thus, waiting for completion of the FEIS before
action on the license application for Project No. 2899 could
cause a delay of up to two years in starting the repair of Milner
Dam i during which time there would be a risk of dam failure. If
a license for the Milner Project is issued at this time, the
necessary financing and other arrangements could be made so as to
complete the dam repairs in one year or less.
1
Draft Environmental Impact Statement for the Twin Falls
(FERC No. 18), Milner (FERC No. 2899), Auger Falls (FERC No.
4;9;), and Star Falls (FERC No. 5;9;) Hydroelectric Projects
on the Mainstem Snake River, Idaho, Federal Energy
Regulatory Commission, Washington, D.C., November 198i.
2
See the attached Safety and Des ign Assessment (S&DA) for a
more detailed description of the dam safety concerns
regarding this project.
EXIBI 1CA NO IPC~PACKW.lfI
PAGE30l62
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Project ~o. 2899-003 -3-
Council on Environmental Quality (CEQ) regulations
implementing the procedural provisions of the National
Environmental Policy Act (~EPA) state that, where emergency
c i rcums tances make it necessary to take an action wi th
significant environmental impacts wi thout following CEQ
regulations (e.g., without first preparing an FEIS), the agency
taking the action should consult with CEQ regarding alternativearrangements. Such arrangements are to be limi ted to actions
necessary to control the immediate impacts of the emergency. 3
Pursuant to CEQ' s regulations, the Commission consul ted wi th CEQ
and requested concurrence wi th a plan to proceed wi th the
licensing of the Milner Project prior to completion of the FEIS
on the four projects on the Snake River. 4 Consistent wi th the
emergency provisions CEQ's regulations, the CEQ approved the
Commission's plan to license the hydroelectric facility at the
Mi Iner Dam prior to completion of the FEIS. 5
I I. Comprehensive Water Block
Commission staff has proposed development of a Comprehensive
Water Block (CWB) for the four projects in the Snake River Basin
included in the DEIS. As described in more detail in the Scoping
Document Supplement (Supplement) prepared for this proceeding in
October 1988, 6 the objective of the CWB is to provide target
flows at the projects when water is available in excess of
irrigation needs. The CWB represents the combined amount of
water needed to provide target flows for protection and
enhancement of environmental resources associated with the four
projects addressed in the DEIS. Under the CWB proposal, each of
the four projects, if licensed and constructed, would provide a
sub-block to the CWB; the size of the individual sub-blocks would
be di fferent for each project, due to the fact target flows wouldbe based on what ls needed to mi tiga te impacts at each speci fic
project. The size of the CWB would also vary from year to year
depending on the amount of flow in the river and the availability
o£~water in excess of irriiation needs.
3See 40 C.F.R. 1506.11 (1988).
. 4
Letter from Martha O. Hesse, Chairman, Federal Energy
Regulatory Commission, October 25, 1988).
. 5
Letter from A. Alan Hill, Chairman, CEQ, October 27, 1988.
6
Information regarding the Supplement was published in the
Federal Register on October 15, 1988. See 53 Fed. Reg.
42,997. Scoping meetings on the Supplement were held in
Boise and Twin Falls, Idaho, on November 2, 1988.
EXIBl1
CASE NO. IPC-EPACKW.lfIDAf"J: A tv A?
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Project ~o. 2899-003 -4-
The C~B proposal would require the licensees for the four
projects to lease water for the C~B from the Upper Snake ~a ter
Supply Bank (~ater Bank). The State of Idaho established the~a ter Bank as a convenient means to allow and account for the
rental of water by those irrigators in need of additional ~ater
from those who have excess water. Irrigators ~ho estimate that
their water storage rights would be in excess of their require-
ments in any year may place a portion of their storage right inthe ~ater Bank, to be leased by others, wi th irrigators receiving
first priority. Any water that is not leased in any year is lost
if all of the upstream storage is refilled in the following year.
ID~R, by letter dated September 30, 1988, stated that it
appears that structured reliance on the Water Bank through the
cWB mechanism can be successful in meeting prescribed mi tigative
flows on the mainstem of the Snake River. Furthermore,
Commission staff discussions wi th iDWR staff regarding the
operation of the Water Bank revealed that: (i) water has been
available for lease from the Water Bank in all years since its
creation; (2) Idaho Power Company has leased water for power
generation from the Water Bank in every year since its creation;(3) future water availabili ty 1 ikely will increase due to
increased irrigation efficiencies; (4) it is highly probable that
water will be available in the Water Bank in excess of irrigation
demand in the future, except in very bad water years; and (5) the
cost of water from the bank is currently very reasonable, and is
expected to remain so in the foreseeable future.
Under the CWB proposal, each licensee would be responsible
for providing project-speci fic target flows. Target flows to be
set for the projects would recognize the physical limitations of
the river system so that they would not interfere with irrigation
operations and would. not flood low-lying areas. Flows to be
released for projèct-specific target flows would be accounted for
when the water is released from the upstream American Falls
Reservoir and measured below Milner Dam. Thus, the CWB would be
an accounting mechanism for licensees to equitably share theresponsibili ty for mi tigati ve flows, since water which is
released from American Falls Reservoir would flow through all of
the four proposed projects.
. As discussed below, we believe the CWB proposal is anappropriate means to provide mi tigati ve flows while recognizing
the need to protect irrigation needs in the area. Accordingly,
Article 401 of the license requires CC to meet the target flows
specified by Article 407 of the license by renting water from theWater Bank when it is available. .
EXBI 1CA NOIPC~PACK. IPD""" .. ni 82
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Project ~o. 2899-003 -5-
I I I. Envi ronmental Impacts
A. Erosion, Sedimentation, and Slope Stability
Rehabilitation of Milnel Dam ~ould involve excavation of
rock materials, construction of access roads leading from the
excavations to the dam, associated staging areas, and a cofferdam
to dewater a small area in the reservoir when reconstructing the
spillway. These acti vi ties would cause minor erosion,
sedimenta tion, localized movement of loose rock materials, and
temporary increases in suspended sediment in Milner Reservoir
during placement and removal of cofferdams. In order to ensure
that impacts on soils and geologic resources are minimized,
Article 402 requires CC to include measures to minimize erosion
and sedimentation and to control slope stabili ty when submi tting
final design specifications for rehabili tation of Milner Dam.
During project construction, localized erosion,
sedimentation, and temporary increases in turbidi ty and suspended
sediments would occur until disturbed land surfaces are
stabilized. Blasting for the powerhouse and tailrace excavation
and construction of the access road could cause localized
rockfall and mass movement of loose materials, and placement and
removal of cofferdams would temporarily increase suspendedsediments and turbidi ty wi thin the Snake River.
Wi th implementation of a detailed, site-specific erosion,
sediment, and slope stabili ty control plan that incorporates CC' s
proposed mi tigation and the mi tigation measures recommended in
the DEIS, the effects on soil and geologic resources would beminor. 7 Article 402 requires CC to prepare a detailed, si te-
specific plan to çontrol erosion, sedimentation, and slope
stabili ty that includes control measures proposed by CC and
recommended in the DEIS.
B. Water Quality
1. Water Quality Certification
In a letter dated January 27, 1984, CC requested water
qual i ty certi fication pursuant to Section 401 (A) ( 1) of the Clean
~ater Act from the Idaho Department of Heal th and Welfare (IDH~).
IDHW granted water quali ty certification for the Milner Project
on September 30, 1985. Since IDHW did not act on the
certification request within one year from the date it received
the request, water quali ty certification was deemed waived by
..,
See Section 4.1.1.1 of the DEIS.
EXIBI 1
CASE NO. 1P-€PAKW.IPC...,.~e.rvA.,
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Project No. 2899-003 -6-
Order No. 464. 8 However, since we believe the three conditions
contained in the water quality certificate, which address erosion
control, spoil disposal, and storage of fuels and chemicals are
necessary, we are including them as part of Article 402 of thelicense.
2. Milner Reservoir and the Snake River belo~ Milner
Dam
The water quality in the Upper Snake River Basin isgenerally good, and is categorized as Class A by IDH~. ~ater
uses to be protected include domestic and industrial water
supply, irrigation, livestock watering, and salmonid fish
spa~ning and rearing.
In the 1960's, Milner Reservoir had poor water quality
condi tions resulting from municipal and industrial point sourcedi scharges. During periods of reduced discharges, low dissolved
oxygen concentrations (DO) in Milner Reservoir resulted in major
fish kills. Substantial reductions in these point sourcedi scharges in -the 1970' s, however, have contributed to better
water qual i ty condi tions in the reservoir.
Temperature and DO sampling conducted by CC' s consultant in
June to September 1983 and in August to December 198; indicate
that Milner Reservoir does not thermally or chemically stratify
and that DO and temperature levels in the river below Milner Dam
are similar to those in Milner Reservoir. These levels met the
state water quality standards at all depths sampled in Milner
Reservoir and in the Snake River below Milner Dam.
The Environmental Protection Agency (EPA) reports that in
past years the surface waters of Milner Reservoir contained high
concentrations of heavy metals. Since 1979, EPA reports that
concentrations of zinc, cadmium, and copper in Milner Reservoir
and in the Snake River below Milner Dam have ranged from ° to 50
micrograms per liter (ug/l), from .2 to 2 ug/l, and from 1 to 8
ug/ i, respectively. However, these concentrations are belo~
levels reported by EPA that adversely affect freshwater aquatic
organisms. 9
8
52 Fed. Reg .5446 (February 23, 198;), FERC Stats. and Regs.
Ill, 30,370 (effective May 11, 1987); reh'. denied, 52
Fed. Reg. 13,234 (April 22, 198;),39 FERC 61,021 (Order
No. 464-A), petitions for reconsideration dismissed, 41 FERC
61,206 (1987) (Order No. 464-B).
9
See generaiiySection 4.2.1 of the DEIS.
EXBI 1CA NO. IPC-E-9PACKW. IP
PAGE 7 Of 82
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Project ~o. 2899-003 ..-, -
(A) Project Construction
Construction activities in Hi lner Reservoir and in the SnakeRi ver below Milner Dam would disturb sediments and other
unconsolidated deposi ts that likely contain heavy metals or other
toxic substances. Improper removal and disposal of sediments or
unconsolidated deposi ts could disperse heavy metals or other
toxic substances into the water column and would adversely affect
the aqua tic resources downstream. Al though the entire project
area need not be tested, Article 403 requires CC to test any
sediment or unconsolidated materials within the Snake River and
Milner Reservoir that would be dredged or excavated in
conjunction wi th project construction for the presence of any
heavy metals or other toxic substances, so that any contamina ted
materials would be identified, safely removed, and disposed of
with minimal adverse effects on water quality and aquatic
organisms.
(B) Project Operation
The propdsed powerhouse would have the capacity to use flows
of from 900 to 4,000 cubic-feet-per-second (cfs). Typically, the
flows that pass Milner Dam in the summer are low, not generally
exceeding 500 cfs, and the proposed powerhouse would not be
expected to operate from approximately mid-June through mid-September.
Operation of the proposed project would not affect the water
quality in Milner Reservoir; however, CC's proposed minimum flow
of 58 cfs in summer during the irrigation season would likely
resul t in substantial adverse impacts on water temperature and DOwi thin the 1. 6-mile-long bypassed reach. The DO and temperature
of the water rele~sed from Milner Dam during summer would likely
change as it flows downstream through the bypassed reach. The
magni tude of these changes would depend on a number of factors,
wi th the major controlling factor being the rate of streamdi scharge through the bypassed reach.
A reduction in the volume of water flowing through thebypassed reach would reduce water veloci ty and depth and increase
the travel time. 'Consequently, the effect of solar radiation
would be intensified and water temperature would increase insummer. Much slower veloci ties in the bypassed reach could also
contribute to the growth of the already abundant aquatic plants.
Increased plant respiration and decomposition would cause DOreductions.
Based on the cross-sectional and longi tudinal profiles of
the ri ver channel below Milner Dam and the available data
relating discharge to DO and water temperature, a flow of 200 to
300 cfs would likely have minimal impact on water t~mperature and
EXlBf1
CASE NO. 1f'-&PACKW.IPCru.""~D ""D~
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Proj~ct No. 2899-003 -8-
DO in the bypassed reach. Flows wi thin this range would likely
provide sufficient water veloci ty and depth, and in turn reduce
the tr8vel time through the bypassed reach, thus minimizing the
effect of solar radiation on water temperature. A target flow
established within this range would likely provide water qualit~.condi tions that are sui table for maintaining a put-and-grow trout
fishery. 10 The target flows required by Articles 40i and 415
during project operation for the maintenance of the fish and
recreational resources, respectively, would minimize the impacts
of project operation on water temperature, DO, and sedimentation
in the bypassed reach.
The DEIS recommended that CC implement a water quali ty
moni toring plan that should include provisions for discharging
sufficient water to the bypassed reach to minimize the effects of
the proposed project on the water quality of the Snake River
during project operation. Water quali ty impacts would be most
cri tical during low water years and during summer months that
coincide wi th low flows, high nutrient levels, and elevated water
tempera tures. -
Cc should implement a water quali ty moni toring plan alongthe bypassed reach. Therefore, Article 404 of the license
requires CC to moni tor the water quali ty of the Snake Ri ver to
determine if water temperatures and DO necessary for the survival
of a trout fishery wi thin the bypassed reach are being maintainedby the target flow released from Milner Dam. If the resul ts of
the moni toring required by Articles 404 and 409 show that levels
of DO and temperature in the bypassed reach are not sufficient
for maintaining a put-and-grow trout fishery, Article 409
requires CC to implement other fishery mitigation.
C. Fishery Resources
.:a"1. Existing Environment
(A) Milner Reservoir
Milner reservoir supports both warmwater and coldwater
fisheries. The warmwater ~pecies include smallmouth bass,
largemouth bass, yellow perch, channel catfish, brown bullhead,
and black crappie. The coldwater species are rainbow trout,
cutthroat trout, brown trout, and mountain whitefish. Also,
numerous nongame species inhabi t the reservoir. The coldwater
species occur primarily at the headwaters of the reservoir. IDFG
stocks catchable rainbow trout in the headwaters of Milner
Reservoir near Burley, Idaho.
10
This fishery resource is discussed in Part II C 4, infra.
EXIBI 1
CASE NO.II'~PACKW.lfI
I"A roJ: D rt A~
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Project No. 2899-003 -9-
Milner reservoir has a sandy substrate and is devoid of
three dimensional structure such as rocks or boulders. The sandy
substrate probably limi ts the production of aquatic invertebrates
typically fed upon by fish. Further, the lack of structure
limits warmwater fish production because structure is used by
warmwater fish for spawning and for cover. 11
The Idaho Fisheries Management Plan 12
warmwater fish such as smallmouth bass, and
catfish will be stocked in the reservoir to
the warmwater fishing in Milner Reservoir.
Management Plan states that the management
Reservoir include improving warmwater fish
states that
channel and blue
meet the demand for
The Fisheries
direction for Milner
habi tat.
(B) Snake River Bypassed Reach
Game fish use below Milner Dam is seasonal and depends on
flow levels. Rainbow trout, cutthroat trout, brown trout,
rainbow-cutthroat trout hybrids, mountain whi tefish, channel
catfish, largemouth and smallmouth bass, and yellow perch have
been collected in the Snake River below Milner Dam. Nongame fish
such as Utah dace, redside shiners, and mottled sculpins
dominated the catch during the low flow period. 13
Water diversions for irrigation limits trout use of the
proposed bypassed reach primarily to the non-irrigation season.
Water div~rsions from April through October for irrigation
deliveries significantly reduce the amount of water flowing
downstream of Milner Dam. These flow reductions during the
irrigation season t along wi th the likely changes to water
quality, increased water temperature and decreased DO
concentration, decreases the sui tabili ty of the downstream area
for trout.
The Fisheries Management Plan for the Snake River below
Milner Dam calls for a "yield trout fishery" with an approximate
catch rate of 0.5 fish per hour. According to the Fisheries
Management Plan, rainbow trout consisting of wild and hatchery
fish would support the yield fishery.
11
See Section 3.3.2.1.1 of the DEIS.
12
Idaho Department of Fish and Game, 1986, Fisheries
Management Plan 1986 - 1990, Boise, Idaho, 2;4 pp.
13
See Section 3.3.2.1.2 of the DEIS.
EXIBI 1
CASE NO IPC.£PACKW.lfI
DA~C 1n ("A?
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Project ~o. 2899-003 -10"
2. Impacts
(A) Project Construct ion
Constructing the Milner Project and upgrading the dam ~ould
cause short-term increases in suspended and dissolved solids
which would ultimately be deposited in do~nstream areas. The
siltation could negatively affect mountain whitefish spawning in
the bypassed reach, but would have actual Ii ttle effect, due to
the fact that so few fish occur or spawn in the bypassed reach.
Sil tation from constru' tion activi ties would have Ii ttle effecton other aqua tic resources, because the sil ta tion would befl ushed out during the next high flow period. Further,
implementing the erosion control and sedimentation plan required
by Article 402 would limi t sources of sediment. The potential
for toxic substances affecting the downstream aquatic resources
would be low because of the sediment testing and sediment removal
requirements of Article 403.
(B) Project Operation
Operating the Milner Project would increase the time period
for diverting water from the reservoir to tpe Twin Falls Main
Canal. Typically, CC now diverts water dur~ng the irrigationseason from April through October. Wi th the project operating,
CC would di vert water all year and would re~uce the frequency of
spi llage over Milner Dam. Fish passing ove~ Milner Dam with the
high spillage flows is probably the primaryi mechanism by whichtrout populate the bypassed reach. Project. operation would
substantially increase the number of fish diverted to the canal,
where they would enter the project intake ~nd would be killed or
injured by the turbines or would no longer iberecrui ted to thebypassed reach or. downstream areas.
CC proposes to mitigate for adverse p~oject impacts by
enhancing the fish habi tat in Milner Reser~oir instead of
installing a fish screen to mi tigate the t4rbine-induced fish
losses. The DEIS egreed wi th CC' s reservolr enhancementproposal, but e~pressed reservations about ¡the probabi Ii ty for
success. 14 In its 'motion to intervene, IJlFG-stated that
enhancing the habitat in Milner Reservoirti"~v)d partially
mi tigate for turbine-induced fish mortality.
Enhancing the warmwater fish habitat by providing structures
for holding and rearing habi tat, .or increa$ing spawning areas and
stocking warmwater fish in Milner Reservoir as described in the
Fishery Management Plan, would adequately fi tigate turbine-
induced fish losses. Therefore, CC should i finance the
14
See Section 4.2.2.1.2 of the DEIS.
EXIBI 1
CASE NO.IPC~PAKW.lfl
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Project ~o. 2899-003 -11-
development of the Mi lner Reservoir warmwate
described in the Fisheries Management Plan.should fund stocking of ~armwa ter fish spec i
in cooperation with the IDFG. Stocking warm
reservoir in cooperation with the IDFG and e
reservoir habitat ~ould be consistent ~ith t
Management Plan. Article 405 requires CC, a
with IDFG, to develop, implement, and financ
stocking program and a habi tat enhancement p
consistent wi th the Fisheries Management PIaReservoir to mi tiga te the adverse effects of
fishery resources.
fishery as
In addition, CC
s in the reservoir
ater fish in thehancing the
e Fisheries
ter consultation
a warm~ater fishan that is
for Milner
the project on the
CC should consul t wi th IDFG and develop a plan to moni tor
the effecti veness of the reservoir enhanceme t structures and the
fish stocking program. Specifically, CC sho ld determine if
addi tional warmwater fish stocking is necess ry to meet the
objecti ves of the Fisheries Management Plan or Milner Reservoir.
The monitoring would also assist in determin' ng the length of
time the structures would remain in place an provide fish
habitat. We conclude that a five-year monitoring program wouldprovide sufficient information to determine if the mi tigative
measures are adequate. The monitoring also allows for correcting
those that are not working. Therefore, Article 406 requires CC
to conduct a reservoir fish habitat and fis ery study for at
least five years to determine if the fish h bitat enhancement
structures have remained in place and are f nctioning as desired
and to determine if addi tional warmwater fi h need to be stocked.
3. Instream Flow
CC proposes to release 58 cfs during t e irrigation season
and 150 cfs durin¡ the non-irrigation seaso. However, CC did
not provide a biological rationale for thes flow proposals or
for the seasonal di fference in the flows. he OilS found that 58'
cfs would prevent fish movement in the bypa sed reach and would
degrade fish food production by increasing hannel sedimentation. 15
The proposed 58 cfs minimum flow would prov de slightly improved
instream flow condi tions, because it would revent the extreme
low flow events that occasionally occur.
. Operating the project during the non-i rigation season wi th
the proposed 150 cfs minimum flow would sig ificantly reduce the
amount of trout habi tat in the 1.6-mile-lon bypassed reach
according to conventional ìnstream flow met odologies, would
severely reduce trout recrui tment and use of the bypassed reach
during the non-irrigation season, and would reduce invertebrate
15
See Section 4.2.2.1.1.3.1 of the DEIS.
EXBI 1
CASE NO. IPC-EPACKW.IPC
Dllr-.. 1? Of 82
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Project ~o. 2899-003 -12-
production. 16 Proposed project operation ~ould reduce the
amount of trout habitat and eliminate spiii~ge over the dam much
of the time and, therefore, preclude trout .ovement over the dam
to the bypassed reach. Thus, the proposed ~on-irrigation season
minimum flow would conflict wi th the manage~ent direction of the
yield fishery, because trout recrui tment and sui table trouthabi ta t would not be maintained in the bypa$sed reach.
The DEIS recommended that CC maintain ~inimum flows of 58
cfs and 1,260 cfs in the irrigation and non~irrigation seasons,
respectively, to protect the downstream fis~ery resources. 1;
The DEIS also recommended a minimum flow of' 300 cfs in the
irrigation season to partially mitigate the cumulative adverse
impacts to the resident trout and other respurces. 18 Since the
DEIS i 300 cfs recommendation to mi tigate cu~ulati ve impactssuperceded the 58 cfs minimum flow for fishlery resource
protection, the DEIS concluded that minimu~ flows of 300 cfs in
the irrigation season and 1,260 cfs in the Inon-irrigation season
were needed. Flows derived by the Tennant IMethodology, 19 the
stream resource maintenance flow study, 20 'and the minimum flows
recommended in the DEIS to protect the fishery resources in the
bypassed reach during the non-irrigation season range from ;20
cfs to 2,190 cfs.
Release of the above flows for fishery
protection purposes
during the irrigation season would interfete wi th irrigation and
thus could have a severe impact on the far~-based economy of the
area. Furthermore, the release of the flo~s recommended for the
non-irrigation season would reduce generat~on and henoe the
revenues necessary to repair Milner Dam. We believe that the
16Id.
17
See Section 4.2.2.1.2 of the DEIS.
18
See Section 5.1.2 of the DEIS.19'
D.L. Tennant, "19;6, Instream flow regimes for fish,
wildlife, reoreation, and related en~ironmental resources,
Pages 359-3;3. In Orsborn, J. F., an~C. H. Allman, (ed.),
Proceedings of the Special ty Confere~ce on Instream Flow
Needs, Volume II, American Fisheries Society, Bethesda i
Nar)'land.
20T. Cochnauer, 19i6, Stream Flow Investiaation, Project F-9-
R-1, Job I, evaluation of applicabil~ty of water surface
profile predictive modeling in refer~nce to stream resourcemaintenance flow (SRMF) determinatio~s i Job I I i stream
resource maintenance flow determina~ions on the Snake River,
Idaho D~partment of Fish and Game, aoise, Idaho, 44 pp.
EXIBl1
CA NO. IPC-€
PACKW. If'
PAGE 13Of82
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Project So ~ 2899-003 -13-
n~ed to protect irrigation usage and provide! sufficient
generation outweigh the need to protect the fishery resources.
Accordingly, we will not require ee to relea.e the flowsreferenced above. However, we are requiring' ee, by Article 40i,
to release a target flow of 200 cfs.
The loss of trout habi tat in the non-irrigation season is
offset somewhat by eliminating the extreme lbw flows that have
occurred during the irrigation season, thus allowing trout to use
the bypassed reach more consistently. A stable flow of 200 cfs
would slightly enhance the fishery resources! by continuallymaintaining a limi ted amount of habi tat that! would occasionally
be eliminated by the low flow events. Ther~fore, 200 cfswould
probably maintain sufficient water quality ~o maintain a put-
and-grow trout fishery in the bypassed reacN. As just indicated,
Article 407 requires ee to maintain a target flow of 200 cfs
below Milner Dam. 21
The Snake River downstream of the propdsed powerhouse would
benefi t from the 200 cfs target flow. Rele.ses from Milner Dam
would prevent -the extreme low flow periods. In addition to the
releases from Milner Dam, the incentive to Qperate the powerhouse
would provide water to downstream areas that would not typicallyhave occurred during the irrigation season. i Therefore, the
fishery resources downstream of the bypasse4 reach would benefit
more than those in the bypassed reach.
4. Trout Fishery Enhancement
The primary source of trout to the byp.ssed reach is
recrui tment from upstream areas. As mentioned above, proposed
operation would reduce spill from Milner Da~ and eliminate much
of this recrui tment. .
In order to mi tigate for the decreasedl recrui tment to thedo~stream Snake River fishery and the lossi of trout habitat inthe Snake River in the non-irrigation seaso~, ee should insti tute
a put-and-grow trout fishery 22 in the 1.6-~ile-long bypassedreach of the Snake River. ee should consulit wi th IDFG to
determine the sizes 'and numbers of trout t~ stock and to
determine ~ne area or areas in which to stock the trout. ce
shouid stock the trout in areas that proviae easy and safe access
21
The 200 cfs target flow is not a mini~um flow, and ce doesnot have to release the flow unless witter is available.
22
The Idaho Fisheries Management Plan defines a put-and-grow
fishery as one where the fish are exptcted to surv i ve and
grow and contribute to the fishery fot a extended period of
time.
EXIBI 1
CASE NO IPC-€PAcKW.lfI....,.,.4.. ,.a.,
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Project No. 2899-003 -14-
for anglers. This would provide a high value recreational
fishery in this area.
Article 408 requires CC to develop and to implement a put-
and-grow trout fishery in the 1.G-mile-long bypassed reach of the
Snake River. ~e conclude that developing this trout fishery
would mitigate the lost trout habitat in the
Snake River
resul ting from reduced flows and would mi tigate the reduced fish
recruitment to the bypassed reach. Enhancing the trout fishery
in the bypass~d reach through hatchery supplementation would not
conflict wi th the management di rection for this section of the
Snake River as described in the Fisheries Management Plan.
There is the possibili ty that the stocked fish would move
downstream wi th the current where they would no longer be
available to the anglers or where they could perish due to
insufficient habitat or poor water quali ty. Therefore, CC should
conduct a study to determine if the trout move downstream and if
the trout are surviving long enough, depending on water
temperature and DO concentration, to remain available to anglers.
CC should fi le annual reports about the surv i val, growth,
and movement of the trout and how the water quality at 200 cfs
affects their survival, growth, and movement. If it is
determined that the trout stocked in the bypassed reach are not
survi ving, are not growing sufficiently, or are moving out
immediately, then CC should consider stocking trout in other
areas of the Snake River such as the head of Milner Reservoirnear Burley, Idaho. In conjunction wi th this study, the results
from the water quality monitoring required by Article 404,
particularly water temperature and DO, will provide valuable
information to determine if 200 cfs provides condi tions conducive
for establishing . year round trout fishery.
We conclude that a five-year moni toring program would
provide sufficient information to determine if the trout stocking
'program is successful. If the results indicate that the trout
stocking program is not successful, the monitoring allows for
changing the stocking rates, the size and species of trout
stocked, and the stocking location. Article 409 requires. CC to
conduct a five-ye~Ltrout monitoring study and to file annual
repórts on the results of each years studies.
C. Ramping Rate
Rapid alteration of streamflows during project startup would
strand fish in the bypassed reach when submerged areas quicklY
drain, because of rapid decreases in the amount of water
avai lable to maintain existing habi tat. To protect the fish and
other aquatic resources from rapid, project-induced flow
EXIBI 1
CASE NO. 1f-&
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Project No. 2899-003 -15-
reductions, the DElS recommended that ÇC limit the maximum rate
of change in the flow in the Snake River. 23
The ramping rate of on~ foot per hour recommended to protect
whi tewater boaters would also provide a measure of protection forfish and invertebrates inhabi ti.ng the bypassed reach. \oe bel ie..etha t a one foot per hour ramping rate would adequately protect
the fishery resources of the bypassed reach during project
startup. Article 410 requires CC to implement a ramping rate of
one foot per hour and to determine if this rate would adequately
prevent stranding of fish and would protect the recreationistsusing the bypassed reach and downstream areas based on a si te
specific study. CC should consider structural measures during
the des ign of the powerhouse (s) to facili tate implementing theramping rate.
D. Raptor Protection
Transmission lines, particularly those in open, relatively
treeless areas with few perching sites, may pose an electrocutionhazard to raptors and other large birds. 24 Collisions wi th the
lines may be an additional source of mortality. The U.S.
Department of the Interior recommends that the project
transmission line be designed and constructed to minimize these
sources of avian mortality. CC has agreed to use an appropriate
design to prevent electrocution of raptors. To ensure theprotection of raptors and other large birds in the project area,
Article 411 requires CC, after consultation with the fish and
wildlife agencies, to design and construct the transmission lineaccording to accepted guidelines for raptor protection.
E. Revegetation of Disturbed Upland Habitat
During construction of the proposed project, approximately
22 acres of upland shrub-grassland habitat would be
disturbed. 25 CC proposes to reseed the disturbed areas wi th amixture of grasses and na ti ve shrubs, but does not provide a
detailed revegetation plan. As discussed in the DEIS, CC should
develop and implement a detailed plan to revegetate disturbedupland areas, wi th the goal of establishing high quali ty wildli fe
habi tat. 26 The plan, requi red by Article 412, should be
developed in consultation with the appropriate agencies, and
should contain, at a minimum, a description of plant species to
23
See Section 4.2.2.1.2 of the DEIS.
24
See Section 4.3.1.1 of the DEIS.
25ld.
26
See generally Section 4.3 of the DEIS.
EXIBI 1
CASE NO. IPC-E-9PACKW.lfl
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Project ~o. 2899-003 -16-
be used, an implementation schedule, a description of planting
methods, fertilization and irrigation requirements, and a
moni toring program.
F. Wildlife Habitat Enhancement Structures~
To enhance the project area for wildlife, CC proposes to:
(1) construct two osprey nesting platforms in Milner reservoir;
(2) develop artificial burrows for use by burrowing owls; and (3)
construct an unspecified number of nesting structures for Canada
geese in the project vicini ty. cC does not, howev~r, provide
final designs, locations, and monitoring plans for these
enhancement measures. The proposed measures, if successfully
implemented, could enhance wildl i fe use of the project area.
Therefore, Article 413 requires CC to provide a detailed plan for
providing the proposed wildlife enhancement measures, including,
at a minimum: (1) the final design of the goose nesting
structures, osprey-nesting platforms, and burrowing owl burrows;
(2) the location of the enhancement features; (3) a schedule for
providing the enhancement features; and (4) a description of a
program to monitor and maintain the enhancement features.
G. Replacement of Riparian wetlands and Upland Habitat
Approximately 6.1 acres of riparian wetlands will be
eliminated by project development. 27 CC has identified four
sites totalling 18.2 acres along the project canal where wetlands
could be created. Of those 18.2 acres, CC proposes to create
10.2 acres to satisfy the wildlife agencies' recommended 1.0 to
1.5 loss to replacement ratio for riparian wetlands.
Construction would also result in the permanent loss of 26. 6
acres of upland shrub-grassland, including 2.0 acres of BLM's
isolated tract No f 23. The IDFG recommends that 26.6 acres of
upland habitat t off-site if necessary, be developed and donated
to IDFG as mitigation for upland losses. CC has agreed to
replace lost upland habi tat according to accepted IDFGguidelines.
Rather than develop another mitigative plan using upland
habi tat, possiblY at an off-site location, we believe that it
would be more beneficial to wildlife, as well as more practical,
to provide addi tional riparian habi tat in the immediate project
area. Sufficient mitigation for both upland .and wetland losseswould be provided by adding 5.3 acres of riparian wetland habi ta t
to the 18.2 acres of potential replacement habi ta t already
identified by CC. This total of 23.5 acres of riparian wetland
replacement habi tat would include 13.3 acres for replacing 26.6
acres of lost upland habitat. This 1.0 for 2.0 ratio seems
2;
See Section 4.3.1.1 of the DEIS.
EXIB 1
CA NO 1P-E
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Project ~o. 2899-003 -1 ;-
reasonable considering the much greater wildlife value of
riparian wetlands, the wetlands comparative scarcity in theproject area, and the high priori ty gi ven to the protection ofwetlands compared to upland habi ta t.
IDFG agrees wi th this approach for replacing upland habi tat
with riparian habitat 28 CC should have little difficultyproviding the addi tional 5.3 acres by ei ther enlarging the four
si tes already identified or by developing addi tional nearby si tes
along the canals or adjacent to Milner Reservoir. Article ~ 14
requi res CC to develop and maintain 23.5 acres of riparian
wetland habi tat to replace riparian wetlands and upland habi tats
lost to project development.
H. Socio-economic Cons idera tions
The operation of the 85-year-old Milner Dam is essential for
the diversion of Snake River flows to the three gravity canals
that provide water to irrigate approximately 440,000 acres of
agricultural land in south-central Idaho. 29 If Milner Dam were
to fail during the yearly irrigation season, from April 1 through
October 31, area farms that rely on the continuous delivery of
wa ter from the three canals would experience a major crop
failure, because they would not be able to develop alternative
irrigation systems in time to save their cultivated acreage.
Based on 1982 data collected by the Census of Agriculture,
irrigated and harvested cropland in Twin Falls and Jerome
Counties in Idaho produced agricultural sales of 5270 per acre.
Thus, the loss of irrigation water for 440, 000 acres would result
in a 5118,800,000 revenue loss for the area's farm sector. Food
processing establishments in south central Idaho, such as
Uni versal Frozen Foods, Ore- Ida Foods, and Amalgamated Sugar
Company, also would be adversely affected, since they would be
unlikely to looate al terna ti ve economio sources of potatoes,
beans, and sugar beets. Consequently, these oompanies would
decrease their production and looal employment. Moreover,
. employment cutbacks by the area's farms and food processingestablishments would oause subsequent reductions in spending at
area retail trade and service establishments, with a commensurate
decline in their sales, employment, and profi ts.
. I. Whi tewater for Boaters
1. Flows
28
Personal communication, Dale Turni pseed, IDFG, Jerome t
Idaho, November 28, 1988.
29
Twin Falls Canal Company and North Side Canal Company, Ltd.,
Response to DElS, March 30, 1988.
EX1CA NO. IPC-EPACKW.lfI
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Project ~o. 2899-003 -18-
In the 1.6-mile-long reach of the Snake River immediately
below Hi lner Dam, expert whi tewa ter boaters run continuous CI~ss
V rapids during high flows that occur in early spring and late
fall. In 1986, about 200 visitor days of whitewater boatingoccurred in the Milner reach. Much of this use occurs in April
and May when the weather is relatively warm and spring runoff is
at its peak. The vast majori ty of boating use consists of
kayaking; however, some rafting does occur. Boaters typically
put in at a bridge located 0.5 miles downstream of Milner Dam and
take out ei ther 1.1 miles below the bridge where the Class V
rapids end, or continue 7.0 miles downstream to a take-out point
above Star Falls. Most boaters, however, choose to take out at
the fi rst location, since the stretch of river below this point
is relatively calm, wi th only a few widely-spaced rapids.
Since the Milner reach has only become known to whitewater
boaters wi thin the past few years, the minimum flow needed to
maintain the unique Class V experience has not been firmly
established, although boaters generally prefer flows between
5,000 and 15,000 cfs. According to the BLM, at flows below 7,500
cfs, the reach is not runnable by rafts, but can be successfully
run at flows of 3,000 cfs, or perhaps below, in a kayak. 30 The
Class V experience is apparently completely changed at flows
below 3,000 cfs, because many rocks are exposed, creating a
whi tewater run that can be negotiated only by kayakers skilled at
technical maneuvering. 31
Because of the short length of the Milner reach, the
whi tewater experience found at certain flows at the Milner
Project can be found in greater amounts on other sections of the
Snake River and other Idaho rivers. For instance, the North Fork
of the Payette River, near Boise, Idaho, provides several miles
of continuous Class V rapids. In addition, the 14-mile Murtaugh
reach of the Snake River, between Star Falls and Twin Falls
Rearvoir, provides a day-long Class IV-to-V whitewater run which
has been compared favorably to the Colorado River. The Milner
reach does not become a unique whi tewater resource until very
high flows occur (generally 10,000 cfs or above). The large
volume otwater at these high flows, concentrated in the narrow
30
Personal communication, Jeff Jarvis, Outdoor Recreation
Planner, BLM, Boise, Idaho, December 1, 1988; letter from
Todd Graeff, Director, Idaho Department of Parks and
Recreation, Boise, Idaho, October 10, 1985~
31
Let ter from Delmar D. Vai I , State Director, BLM, Boi se,
Idaho, January 20, 1987; personal communication, Jeff
Jarvis, Outdoor Recreation Planner, BLM, Boise, Idaho,
December 1, 1988.
EXBI 1
CASE NO. 1P-EPAC.IPC
PAr.i 19 Of 82
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Project No. 2899-003 -19-
gorge below Milner Dam, creates Class V waves that arein terna tional ly known among expert kayakers.
The DEIS recommended that bypass flows between 5,000 and
15,000 cfs, when available, ~e released on as many as 10 weekend
days during May and June for ~hi tewater boaters. 32 Such flows
would provide opportuni ties for expert kayakers to run the 1.6-
mile-long Class V rapids below Milner Dam. Based on commentsrecei ved on the DEIS from the ID~R and CC, and information
gathered by the staff during a project site visit and public
meetings held in August 1988, we agree that providing these flows
at times when such flows are not made available by normal
regulation of the storage and release patterns governing flows at
Milner Dam would not be feasible.
Between April and October all water at Milner Dam
appropriated for use by CC is diverted for irrigation. Providing
flows between 5,000 and 15,000 cfs in May and June would require
the entire irrigation system for the North Side Canal Company and
Twin Falls Canal Company to be readjusted after each flow
release. This would adversely affect water delivery to crops in
the area. However, when flows exceed system requirements by the
magni tude that would allow customary boating use below Milner
Dam, such flows could be maintained when available to allow
boaters to continue using this unique resource.
Table 1 below shows the occurrence of various whitewater
flows both wi th 'and wi thout project operation based on iDWR 56-
year flow record for the Milner reach. Assuming that the minimum
flow needed to boat the Milner reach is approximately 2,000 cfs,
whitewater boating opportunities at Milner occur approximately 96
days per year during the boating season. However, project
operation would reduee these opportunities by 60 percent, leavingapproximately 38 days a year for whi tewater boating.
Table 1. Average percent of Occurrence of Flows Below
Milner Dam for March, April, May, June, October, and
November, with average number of days at flow or
grea ter.-i; ,..to
Flow
at least
6-monthpercentage
Number
of days
Withproject
6-month projectpercentage
Wi thproject
number
of da~.s
32
See Section 4.5.1.2 of the DEIS.
EXIBI 1
CASE NO. 1f'-EPACKW.IPC
PAGE 20 OfB2
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Project No.2899-003 -20-
(cfs)of occurrence per year of occurrence per year
15,000 2.9 5.3 0.5 0.9
14,000 4. ï 8.6 0.8 0.9
13,000 5. 1 9.3 1. 3 2.4
12,000 6.5 11.9 1. 9 3.5
11,000 8.4 15.4 2.9 5.3
10,000 9.5 1 ï .4 4. ;8.6
9,000 10.6 19.4 5.1 9.3
8,000 12.9 23.6 6.5 11.9
i,OOO 1 i. 0 31.1 8.4 15.4
6,000 21.0 38.4 9.5 1 i .4
5,000 24.0 43.9 10.6 19.4
4,000 33.6 61. 5 12.9 23.6
3,000 38.4 ;0.3 1 i .0 31.1
2,000 52.8 96.6 21.0 38.4
Al though 'project operation would have an adverse effect on
the total continuum of whi tewater boating opportuni ties offered
at Milner, from low flow technical kayaking to high flow Class V
boating, it is important to note the impacts that project
operation would have on the unique high flows (10,000 cfs and
above) . Flows of 10,000 cfs and above occur on the average about1 j .4 days. With project operation, the occurrence of these flows
would be reduced by almost half (49 percent), leaving about 8.6days for boating at high flQws. This represents a loss toboaters of approximately eight days (8.8 days).I
I
Since these rare high flows are what make the Milner reach
important to whitewater boaters, these flows should be preserved.This could be accomplished py requiring CC to. stop operating the
project on eight days when flows at 10,000 cfs or above are
available. To ensure that these flows are available
when boaters use the reach ,1 they should be released during April
and May for eight hours dur!ing dayl ight hours. Flows below
10,000 cfs, however, would pe reduced during project operation.To help mitigate these i~p~6t8, when flow conditions avai lablemake it impossible for C( meet their obligation of providing
eight days of flows of 10,000 cfs or more, they should release
flows between 4,000 and 10,000 cfs until their obligation is met.
This would reduce project impacts on mid-range flows and ensure
that whi tewater flows would be available during years when high
flows do not occur.
Article 415 requires CC, upon starting project operation,
and in consul tation wi th the appropriate agencies and whi tewa ter
boaters, to stop operating the project for eight hours on eight
days in April and May when flows of 10,000 cfs or above occur.
EXlBl1
CAE NO. IPC-EPACKW.IPC
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Project ~o. 2899-003 -21-
Article 415 also requires CC to release flo~s between 4,000 and
10,000 cfs, when available, to meet its eight-day obligation when
eight days of flows of 10,000 cfs or above do not occur during
April and Nay.
Ceasing project operation at the above-mentioned times would
resul t in a yearly loss to irrigators of $8,400 in revenues
genera ted by the project. To determine whether abetter
arrangement of flow could be provided to more closely match
whi tewater boater needs and to reduce the impact on project
generation, Article 418 requires CC to conduct a study in
consultation with the Idaho Whitewater Association (IWA), the
~ational Park Service (NPS), BLM, the U.S. Bureau of Reclamation
(BR), IDWR, and the Idaho Department of Parks and Recreation(IDPR). Since boaters may not spend an entire day on the river,
it is possible that higher whi tewater flows could be maintained
in the bypassed reach for less than eight hours according to
boaters needs as long as CC meet their obligation for providing
the equivalent of eight eight-hour days of project shutdown at
flows of 10,000 cfs or above.
To protect downstream recreationists from sudden increases
in water level and streamflow, water levels in the project
bypassed reach should not increase by more than one foot per hour
when providing releases for whitewater boating. In addition, a
warning system must be implemented in order to alert
recreationists of hazardous si tuation created by increases in
flow. A ramping rate and a warning system would allow fishermen
and other recreationists below the dam to have enough time to
leave the area before water levels and veloci ties become unsafe.
Article 410 requires CC to file for Commission approval a planfor implementing ramping rates that would ensure the prot.ection
of fish resources and downstream recreationists. Article 416
requires CC to file a plan for Commission approval to warn
recreationists of increases in water level and streamflow
downstream of the dam.
2. Communication Network for Whi tewater Boaters
In their March 30, 1988 respõnsc to the DEIS, CC proposed to
deveiop a communication network that would quickly inform
recreationists of anticipated flow condi tions below Milner Dam.
Under existing conditions, high flows occur rarel7 and are
unpredictable for boaters. A communication network would
partially mi tigate for the loss of whitewater boating days caused
by project operation by giving boaters more opportunity to plan
boating trips to coincide wi th desirable flows. Article 418
requi res CC, after consul ta tion wi th BR, IDWR, IDPR, BLM, ~PS,
and IWA, to file for Commission approval a plan to provide
a
communication network to inform whi tewater boaters of availablewh i lewaler flows.
EXBI 1
CASE NO. IPC-€
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Project No. 2899-003 -22-
J. Fishing Access to the Bypassed Reach
we believe that CC should study the feasibility of stocking
the project bypassed reach with trout to provide new
opportuni ties for fishing at the project si te. A program toinform the public of fishing opportuni ties at the project 6i te
would be needed since presently the Mi lner reach receives minimal
fishing use. Also, access to be provided at the powerhouse and
at the bridge below Milner Dam could attract addi tional fishing
use to the project bypassed reach. To ensure that anglers are
adequately informed of fishing opportuni ties in the bypassed
reach, Article 408 requires cC to file for Commission approval a
plan that includes notification of anglers of fishing
opportuni ties.
K. Recreation Facilities
CC ini tially proposed to construct the following recreational
facilities: (1) a parking area to accommodate 10 vehicles at the
powerrrouse; (2) kayaker access at the powerhouse; and (3) a boat
dock near the existing boat dock at the BLM's Bicentennial Si te
on Milner Reservoir. In their March 30, 1988 filing, however, CC
proposed for consideration additional facili ties. These include:
(1) an interpretive center with associated picnic facilities at
Qr near Milner Dam, or an alternate location; (2) an additional
water ski dock or docks in Milner Reservoir near Milner Dam; (3)
further development of public facili ties at the BLM Wildlife
Habitat Management area; or (4) other better suited public
facilities selected as a result of the consultation process.
Since the construction of the project would provide an
opportuni ty to enhance recreation near Milner Dam, some
addi tional facilities should be provided to allow access for
whitewater boaters and fishermen. Other facilities mentioned
above, however, may not be needed at this time.
Article 419 requires CC to file for Commission approval a
recreation plan prepared in consultation 'with the IDPR, BLM, l'PS,
and'IWA, that includes, but is not limited to: (1) provisions
for a kayaker put-in area at the bridge below Milner Dam and a
take-out area below the powerhouse wi th parking facili ties; (2)
tailwater fishing facilities; (3) design drawings of the proposed
facilities; (4) a construction schedule for the facilities; (5) a
plan for monitoring recreational use in the project area to
determine if addi tional recreational facili ties will be needed in
the future; and (6) documentation of agency consultation.
Article 419 also requires that CC, in designing these facilities,
consider providing the whi tewater take-out area below the final
Class V rapid below the powerhouse area and away from tailwater
EXIBl1
CASE NO. IPC-EPACKW.IPC
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Project ~o. 2899-003 -23-
fishing facilities. This would avoid boater interference with
fi~hermen and allow boaters to run an addi tional Class V rapid.
L. Visual Resource Mitigation
~iilner Dam and its associated proposed facili ties are
visible to visitors to the dam site interpretive area as well as
from water users on the river and reservoir. The proposed dam
and canal modifications would blend with the existing landscape.
The power generating facili ties would be located in an area
out of view of Milner Dam and in a visually natural settingwith in the canyon. The naturalness of the canyon' walls is a
great asset that should be maintained throughout the installation
and operation of the proposed project. The proposed access road
to the powerhouse si te would cross steep canyon side slopes and
its construction would entail earth and rock cuts and fills that
would create a linear element in the natural appearing landscape.
The proposed penstock would cross over the canyon rim and drop
nearly vertical to the powerhouse at the river's edge. This
large pipe, wIth its smooth surfaces, would reflect light and
contrast in color, texture, and line, with the existing natural
appearing landscape. The proposed powerhouse, substation,
transmiss ion line, gantry crane, and tai lrace would also contrast
wi th the natural appearing landscape because of their geometric
forms. In particular, the transmission line from the powerhouse
to the forebay would create a linear element contrasting wi th thecanyon walls.
CC should study the feasibili ty of placing the transmission
line ei ther underground or in a condui t attached to the penstock
from the powerhouse to the forebay area. Therefore, to ensurethat the proposed. faQili ties are designed to minimize visual
impacts, Article 420 requires CC to submit final construction
plans and specifications prior to the commencement of anyp~~ect-rela ted land-disturbing acti vi ties.
M. CuI tural Resources
Three historic sites listed or considered eli.iJ'ble for
inclusion in the National Register of Historic Pláç:e,s are located
within or near the impact areas of the project. Tbê listed site
is Mi lner Dam. The el igi ble sites are the South Side Main Canal
and Milner Townsi te. Six archeological si tes have also been
identified in the project vicini ty. Based on a review of the
archeolog ical report for the project, and a site visit to the
project area, the Idaho State Historic Preservation Officer
(SHPO) has stated that the si tes ei ther are not eligible for
inclusion in the National Register or lie outside the area of
EXIBl1
CASE NO. IPC-EPACKW.IPC
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Project No. 2899-003 -24-
potential impacts. 33 Project construction and rehabilitation
of the Dam would require modifications to the dam and the canal.
No construction or rehabilitation work would occur in the area of
the To\ons i te.
CC has filed a cultural resources management plan, prepared
in cooperation \oith the SHPO, to mitigate the project's effectson the dam and the canal and to ensure that the townsi te \oould
not be affected by construction or rehabili tation work. The plan
proposes to document in photographs, drawings, and in a report,
according to the standards of the Historic American Engineering
Record (HAER), the portions of the dam and the canal that would
be al tered by the project. The plan proposes to fence portions
of the townsite and to prohibit construction activities in the
vicinity of the townsite to ensure that no impacts to this site
would occur. 34
The SHPO reviewed the plan and stated the following: (1) the
plan minimizes impacts to the dam and the canal and ensures that
the townsite ,"ould not be impacted; (2) rehabilitation work would
not affect the original historical fabric of the dam; (3) this
work would not significantly affect the appearance of the dam;
and (4) the plan satisfies the historic preservation requirements
for consultation with the Advisory Council on Historic
Preservation, as required b~' the National Historic Preservation
Act. 35
The U. S. Department of the Interior (Interior) also reviewed
the cuI tural resources management plan and the oul tural resources
documentation contained in the application for license, and
generally concurs with the plan and the findings of the SHPO.
Interior recommends eertain revisions to the plan and the
cuI tural resources documentation to ensure that the plan is
implemented in a satisfactory manner and that the documentation
is complete. Specifically, Interior recommends these actions:
33
Letters from Dr. Thomas Green, State Archeologist, Idaho
State Historical Society, Boise, Idaho, May 17, 1984;
. John A. Rosholt, Attorney for Twin Falls Canal Company &¡¡ú
North Side Canal Company, Ltd., Nelson, ~osholt, Robertson,
Tolman at Tucker, Twin Falls, Idaho, February 11, 1986.
34
Letter from John A. Rosholt, Attorney for Twin Falls Canal
Company and North Side Canal Company, Ltd., Nelson, Roshol t,
Robertson, Tolman at Tucker, Twin Falls, Idaho, February 11,
1986.
35
Letter from Dr. Merle W. Wells, State Historic Preservation
Officer, Idaho State Historical Society, Boise, Idaho,
February 4, 1986.
EXBllCA NO. IPC-E
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Project ~o. 2899-003 -25-
(1) completing documentation of the dam, canal, and townsite in
accordance with ~ational Register eligibility criteria before
determining the specific HAER documentation or avoidance
procedures that should be implemented, to ensure that
documentation and procedures are directed at the significant
historical attributes of these sites; (2) surveying the to~nsiteto precisely determine the boundaries of the si te, to ensure that
the si te is not impacted; (3) avoidi ng the use of fencing at the
townsi te so as not to draw the attention of artifact collectors
or vandals; and (4) providing further documentation on one
archeological si te (10-TF-641) to clearly establish that the si te
is not eligible for inclusion in the National Register. 36
To ensure that the dam, canal, and towns i te are documentèdand protected in an adequate manner and that the cuI tural
resources documentation of si te lO-TF-461 is complete, cC shouldconsul t wi th the SHPO, and also the HAER in the case of the dam
and canal, to determine the speci fic procedures that should be
implemented, and should implement the plan wi th Interior's
recommended revisions before beginning land-disturbing or land-
clearing activities that would impact these sites. The
documentation should be filed in a report or in separate reports,
if the documentation or avoidance procedures are undertaken at
different times, and filed with the Commission for approval. The
reports must contain a letter from the SHPO accepting the
documentation and procedures for avoiding impacts. In the ca$e
of the dam and the canal, letters from the HAER accepting the
documentation must also be included. No rehabilitation work orother construction work at the dam or canal or wi thin the
vicini ty of the townsi te and the archeological si te may commence
until CC are notified by the Commission that the filing has been
approved. Article 421 requires implementation of the reviseqplan.
The project has the potential to impact archeological and
historic sites not previously identi fied at the project. Buried
si tes may be encountered during construction. Also, projectfaci 1 i ties may be relocated or added to the project at some
future date in areas not previously inventoried for si tes. Any
such archeological or historic si tes should be afforded
prot~ction in accordance with the National Historic Preservation
Act. Article 422 requires the implementation of cui tural
resources protection measures to avoid or minimize impacts to any
such si tes that may be impacted by the project. Article 421
36
Letters from Bruce Blanchard, Director, Environmental
Review, Department of the Interior, ~ashington, D.C.,
December Ii, 1985; and Helene Dunbar, Acting Chief,Interagency Archeological Serv ices, ~a t i ona1 Park Ser\' ice,
San Francisco, Cal i fornia, February 4, 1986.
EXHIBI 1
CA NO. IPC-E-9
PACKW.IPeOnA~r=4"'''R''
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Project No. 2899-003 -26-
requires CC to finalize and implement its cultural resources
management plan in a manner acceptable to the Advisory Council on
Historic Preservation.
N. Cumula ti ve Impacts
Cumulati ve impacts of the four proposed projects, includingthe Mi lner Project No. 2899, wi 11 be fully assessed in the
Supplement and FEIS to take into consideration any changes that
occur between the DEIS and the FEIS in configuration, operation,
and mitigative measures associated with the other three projects.
Standard Articles 15 and 1; of the license 37 reserve sufficient
authori ty for the Commission to order reasonable modifications of
the project structures and operations to take into account
recommendations made in accordance with the NEPA process.
iv. Recommendations of Federal and State Fish and WildlifeAgencies
Section 10 C j) of the FPA, as amended by the Electric
Consumers Protection Act of 1986 CECPA), Pub. L. No. 99-495,
requires the Commission to include license conditions, based on
recommendations of federal and state fish and wildlife agencies,
for the protection, mitigation, and enhancement of fi~h andwildl i fe. The concerns raised by the federal and state fish andwi ldli fe agencies have been fully addressed in the DEIS, and the
condi tions contained in this license are consistent wi th the
recommendations 'made by those agencies.
v. Comprehensive Plans
Section 10(a) (2) (A) of the FPA, as amended by ECPA, requires
the Commission to .consider the extent to which a project is
consistent with federal or state comprehènsive plans (where they
exist) for improving, developing, or conserving a waterway or
waterways affected by the project. The Commission's interpreta-
tion of ~comprehensive plan~ under Section 10(a)(2)(A) 38 was
revised Oil rehearing by order issued April 27, 1988. 39 On
rehearing, the Commission instructed the' Director, Office of
Hydropower Licensing, to request the state and federal agencies
to file plans they believe meet the revised guidelines.
3;See Ordering Paragraph CD) hereof.
38
Order No. 481, 52 Fed. Reg. 39,905 (October 26, 198;), III
FERC Stats. & Regs. 30, ;i3 (1987).
39Order No. 481-A, 43 FERC 61,120 (April 2i, 1988).
EXIBl1
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Project ~o. 2899-003 -2 i-
The Commission reviewed five plans that address various
aspects of waterway management in relation to the proposed
project. 40 ~i th one exception, the proposed project, as
conditioned herein, is consistent with those plans.
The Idaho State water Plan (IS~P) is a Section 10(a)(2)(A)
comprehensi ve plan. In its September 25, 1985 motion to
intervene in this proceeding, IDwR indicated that the ISwP
specifies that the use of water by hydroelectric projects must be
subordinated to future upstream depletionary uses and requested
that such a provision be included in any license issued for
Project ~o. 2899. IDwR did not, however, provide any information
regarding the timing and extent of those future depletionary uses
or how such uses would affect the operation of Project No. 2899.
As we explained in Horseshoe Bend Hydroelectric Company, 41
in determining whether, and under what conditions, a license
should issue, we are required by the comprehensive planning
provision of Section 10(a) (1) of the FPA, 16 U.S.C.803 (a) ( 1 ), to consider and balance all aspects of the publ ic
interest, including the need to protect environmental and
irrigation interests and the need for the power to be produced by
the project. In so doing, we prescribe condi tions that we
believe will provide the appropriate level of energy generation
and protection for the environment and irrigation and will not
issue a license if the conditions we deem necessary to protect
environmental and other resources would render a projectfinancially infeasible.
Inclusion in the license of the unsupported open-ended water
subordination clause requested by IDWR would in essence vest in
IDWR, rather than the Commission, ultimate control over the
operation and continued viabili ty of the project. In other
words, the subordination clause, which would reserve to IDWR the
right to permit unlimited diversion upstream of the project,
could nullify the balance struck by us under the comprehensiveplanning provisions of Section 10(a) (1) of the FPA in issuing the
license. Consequently, inclusion of the open-ended water
subordination clause in the license as requested by IDwR would
interfere with the exercise of our comprehensive planning
40
Idaho Statewide Comprehensive Outdoor Recreation Plan, 1983,
IDPR; Idaho State water Plan, 1986, IDWR; Idaho Fisheries
Management Plan, 1986, IDFG; and Northwest Conservation and
Electric Power Plan, 1986; and Columbia River Basin Fish and
~ildlife Program, 1987.
4142 FERC 61,072 (1988), appeal pending sub nom. Idaho
Power Company v. FERC, No. 88-10i8 (D.C. Cir. filed
Feb. 3, 1988).
EXHIBfT1CA NO. IPC....
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Project No. 2899-003 -28-
responsibilities under Section 10(a) (1) of the FPA and thus would
be inconsistent wi th the scheme of regulation established by the
FPA, which vests in the Commission the exclusive authority to
determine whether, and under what condi tions, a license should
issue. 42
In light of the above, we will not add the requested open-
ended subordination clause to the license for Project No. 2899.
However, as we explained in Horseshoe Bend, should ID~R in the
future determine that it would be desirable for CC to reduce
their use of water for generation to accomodate a specific future
upstream water use, ID~R can peti tion the Commission to have us
exercise our reserved authori ty under Standard Article 12 of the
license to require such a reduction. We will provide CC wi th
notice of the request and an opportunity to respond and will act
on the request after considering all supporting documents and
information submitted by IDWR and CC.
The proposed project is otherwise consistent with the ISWP.
The ISWP provides for a zero minimum flow below Milner Dam. The
i icense as condi tioned herein is consistent with the zero minimum
flow provision of the ISWP, since the license would not require
that minimum flows be provided below Milner Dam. Instead, it
requires CC to provide any addi tional water needed to meet the
environmentally-desirable target flows by leasing water that is
in excess of irrigation requirements from the Water Bank, but
only if available, and in accordance with the rules of the WaterBank operation. .
The Columbia River Basin Fish and Wildlife Program
(Program) J developed by the Northwest Power Planning Council(Council) to protect J mi tigate, and enhance fish and wildliferesources associated. wi th the development and operation of
hydroelectric projects wi thin the Columbia River Basin is a
Section lO(a)(2)(A) comprehensive plan. 43 Responsible federalaøecies are required to provide equitable treatment for fish and'wildli fe resources J consistent wi th the other purposes for which
hydropower is developed and to take into account to the fullest
extent practicable the Program.
The Program directs agencies to consult wi th federal and
state fish and wildlife agencies, appropriate Indian Tribes, and
the Council during the study, design, construction J and
operation
of any hydroelectric development in the Basin. At .the time
the
application for Project No. 2988. was filed, the Commission's
42
See
152
43
See
First Iowa Hydro-Electric Coop. v. FPC, 328 U.S.
(1946).
43 FERC 61,120 (1988).
EXBI 1CAse NOIPC-EPACKW.IPC
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Project No. 2899-003 -29-
regulations required applicants to ini tiate prefiling
consultation with the appropriate federal and state fish and
wildlife agencies and the Tribes and provided these groups with
postfiling opportunities to review and to comment on the
application. This consultation process has occurred.
The Program states that authorization of new hydroelectricprojects should inc i ude condi tions of development that wouldmi tigate the impacts of the project on fish and wi ldli feresources. The relevant federal and state fish and wi ldl i fe
agencies have reviewed and commented on the application. In
addi tion, this license provides for mi tiga ti ve measures to
protect and enhance fish and wildlife resources and is therefore
consistent with Section 1200 of the Program. Further, Article
423 of this license reserves to the Commission the authori ty 'to
require future alterations in project structures and operation in
order to take into account to the fullest extent practicable the
applicable provisions of the Program.
VI. Project Economics and Need for Power
Commission studies show that the proposed project, operating
under its proposed mi tigation requirements, would produce
approximately 144,300 MWh of energy annually at A levelized cost
of aboul 61.5 mills/kWh. When compared to the levelized cost ofal ternati ve energy in the region of about 85 mills/kWh, the
level i zed net annual benefits of the project power would be
approximately $3.4 million. CC' s levelized revenues under the
terms of their power sales contract are expected to be about
$452,000 annually, which would be a significant contribution to
their projected financing obligation for the Milner Damrehabilitation.
The project is financially feasible, because CC have
executed a contract for the sale of the project power which
obligates the power purchaser to pay the total costs plus two
mills/kWh for the project generation, to be escalated by 20
percen t every five years.
As discussed in the attached S&DA, a need for power could
exist in the region any time from the early 1990s to late 1990s,
and that the Milner Project could be useful in meeting a small
part of that need for power.
VII. Summary of Findings
The design of this project is consistent wi th the
engineering standards governing dam safety. The project will be
safe if constructed, operated, and maintained in accordancei.i th
the requirements of this license. Analysis of related issues i~
provided in the S&DA attached to this order.
EXIBI 1
CASE NO. IPC-EPACKW.IPC
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Project No. 2899-003 -30-
As discussed previously and in the attached S&DA, the 200crs target flow required by Article 40; would: (1) not
jeopardize the feasibility of the project development; (2)
provide flows below Milner Da~ without sacrificing irrigation
wa ter requirements; and (3) rêduce CC' s annual power revenues,
which will be used to help offset the cost of the Milner Dam
rehabilitation, by only $13,300 (less than four percent). Thus,
the requirement to lease water in excess of irrigation
requirements to meet mi tigation flow requirements is reasonable,
because water is projected to be avai lable for purchase from the
~ater Bank at a reasonable price that would not eliminate the
economic benefits of the project or jeopardize CC's ability to
secure financing for the project. Additionally, the target flow
may be necessary for the maintenance of a marginal cold-water
fishery in the river reach below Milner Dam.
Based on our independent analysis, we conclude that the
Milner Project No. 2899 as conditioned herein would not conflictwi th any planned or authorized development and would be best
adapted to comprehensive development of the waterway for the
beneficial public uses specified in Sections 4(e) and 10(a) (1) of
the FPA.
The Commission orders:
(A) This i icense is issued to the Twin Falls Canal Company
and the North Side Canal Company, Ltd. (licensees), for a period
of 50 years, effective the first day of the month in which this
order is issued, to construct, operate, and maintain the Milner
Hydroelectric Project No. 2899. This license is subject to the
terms and condi tions of the FPA, which is incorporated byreference as part. of- this license, and subject to the regulations
the Commission issues under the provisions of the FPA.
(B) The project consists of:
( 1) All lands, to the extent of the licensees' interes ts in
those lands, enclose~ by the project boundary shown by Exhibit G:
';i f;;
Exhi bi t G-FERC No.2899-Showing
General Map 1 13
Project Boundary Map 2 14
Project Boundary Nap 3 15
Project Boundary Map 4 16
EXIBI 1
CASE NOIPC~PACKW.lfI
nA,.~~.. rva.,
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Project No. 2899-003 -31-
Project Boundary Map 5 17
(2) Project works consisting of: (a) the existing MilnerDarn, constructed with a trapezoidal-shaped rockf ill sect i on at
elevation 4,138 feet, the north embankment with a crest length of
480 feet, the middle embankment wi th a crest length of 404 feet,
and the south embankment wi th a crest length of 462 feet,
proposed 15-foot-wide rockfill berms on the downstream slope of
the dam, eleven 12-foot-high, 30-foot-wide radial gates proposed
for the southern island, and an ungated emergency spillway on the
northern island; (b) the existing 1, 100-acre reservoir with a
gross storage capacity of 26,000 acre-feet at an elevation of
4,130.05 feet; (c) a canal control structure, consisting of
six
manually-operated gates, 12-feet-wide by 15-feet-high, and one
hydraulically operated bascule gate, 24-feet-Iong by 11-feet-
high; (d) new ~toplog slots, replacing the existing headworks;(e) a 6, SOO-foot-Iong, earth and riprap-lined excavated rock
canal, modified to increase the canal capacity from 3,200 cfs to
7,000 cfs; (f) an existing bridge on the Twin Falls Main Canal,
raised to an elevation of 4,137.5 feet and lengthened by 60 feet;
(g) a new concrete wasteway, providing a water passageway through
the right canal embankment of the Twin Falls Main Canal, hav ing a
39-foot-long, 10. 5-foot-high, hydraulically operated bascule
ga te; (h) a forebay, having a maximum capaci ty of 4,000 cfs; (i)
an intake structure at the end of the forebay, consisting ofsteel trashracks and a 14-foot-wide, 1 i-foot-high, cable-
opera ted, fixed-wheel gate; (j) a i i -foot-diameter, 385-foot-
long steel penstock; (k) an 89-foot-long, 56-foot-wide, 83-foot-
deep, semi-outdoor, reinforced concrete powerhouse, containing a
single generating ùnit with a rated capacity of 43.65 megawatts,
operating under a head of 151.6 feet; (1) a liO-foot-long
tailrace; (m) a 2,30Q-foot-long access road; (n) a 1.4-mile-
long, 138-kilovol t transmission line, tying into the existing
Milner substation; (0) 600 feet of river bottom excavation; and
(p) appurtenant facilities.
The project works generally described above are more
specifically shown .and described by those portions of Exhibits Aand F recommendc.t. ',,,1' approval in the S&DA.
(3) All of the structures, fixtures, equipment, or
facili ties used to operate or maintain the project and located
within the project boundary, all portable property that may be
employed in connection with the 'project and located wi thin or
outside the project boundary, and all riparian or other rights
that are necessary or appropriate in the operation or maintenance
of the project.
(e) The Exhibit G described above and those sections of
Exhibits A and F recommended for approval in the S&DA are
approved and made part of the license.
EXIBr1
CASE NO IPC-EPACKW.lfI
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Project ~o. 2899-003 -32-
(D) This license is subject to the articles set forth in
Form L-2 (October 1975), entitled "Terms and Conditions of
License for Unconstructed Major Project Affecting Lands of the
Cni ted States," except Article 20, and the following addi tionalarticles:
Article 201. The licensees shall pay the United States the
fo1 lowing annual charges, effecti ve the first day of the
month in which this license is issued.
(a) For the purpose of reimbursing the Uni ted States for
the cost of administration of Part I of the FPA, a reasonable
amount, as determined in accordance wi th the provisions of the
Commission's regulations in effect from time to time. The
authorized installed capaci ty for that purpose is 58,200horsepower.
(b) For the purpose of recompensing the United States for
the use, occupancy, and enjoyment of its lands, other than for
transmission line right-of-way, a reasonable amount, as
determined in accordance with the provisions of the Commission's
regula tions in effect from time to time.
(c) For the purpose of recompensing the United States
for
the use, occupancy, and enjoyment of its lands for transmission
line right-of-way, a reasonable amount, as determined inaccordance wi th .the provisions of the Commission's regulations in
effect from time to time.
Article 202. Pursuant to Section 10 (d) of the FPA, after
the first 20 years of operation of the project under license, a
specified reasonable- rate of return upon the net investment. in
the project shall be used for determining surplus earnings of the
project for the establishment and maintenance of amortization
reserves. One-hal f of the project surplus earnings, if any t
accumulated after the first 20 years of operations under the
license, in excess of the specified rate of return per annum on
the net investment, shall be set aside in a project amortization
reserve account at .the end of each fiscal year. To the extent
that there is a deficiency of project earnings below the
speiified rate of return per annum for any fiscal year after the
first 20 years of operation under the license, the amount of that
deficiency shall be deducted from the amount of any surplus
earnings subsequently accumulated, until absorbed. One-half of
the remaining surplus earnings, if any, cumulatively computed,
shall be set aside in the project amortization reserve account.
The aniounts established in the project amortization reserve
account shall be maintained until further order of the
Comnil ss i on.
EXIBI 1
CASE NO 1f'-E
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Project No. 2899-003 -33-
The annual speci f ied reasonable rate of return shal 1 be the
sum of the annual weighted costs of long-term debt, preferred
stock. and common equity, as defined belo~. The annual weighted
cost for each component of t~e reasonable rate of return is the
product of its capi tal ratio 'and cost rate. The annual capi tal
ratio for each component of the rate of return shall be
calculated based on an average of 13 monthly balances of amounts
properly includable in the licensees' long-term debt and
proprietary capi tal accounts as i isted in the Commission's
Cni form System of Accounts. The cost rates for long-term ¿ebt
and preferred stock shall be their respective weighted average
costs for the year, and the cost of common equi ty shall be the
interest rate on lO-year government bonds (reported as the
Treasury Department's lO-year constant maturi ty series) computed
on the monthly average for the year in question plus four
percentage points (400 basis points).
Article 203. The licensees shall clear and keep clear to
an adequate width all lands along open condui ts and shall dispose
of all temporáry structures, unused timber, brush, refuse, or
other material unnecessary for the purposes of the project which
resul t from maintenance, operation, or alteration of the project
works. In addition, all trees along the periphery of project
reservoirs that may die during operations of the project shall be
removed. All clearing of lands and disposal of unnecessary
rna terial shall be done with due diligence to the satisfaction of
the authorized representative of the Commission and in accordance
wi th appropriate federal, state, and local statutes and
regula tions.
Article 301. The licensees shall begin construction of theproject works wi thin. two years from the issuance date of thelicense and shall complete construction of the project wi thinfour years from the issuance date of the license.
-:a"'~
Article 302. To ensure completion' of construction of the
dam safety modifications during the 1989 construction season, the
licensees shall file a plan and schedule for the design and
construction of the' dam safety modifications wi thin 30 days fromthe issuance date of the license .':'The plan shall includespeci f ic i terns for acti vi ties that are necessary before beginningconstruction acti vi ties.
Article 303. Wi thin 90 days after completion of
construction, the licensees shall file for the Commission's
approval, revised Exhibits At F, and G, to describe and show the
project as-built, including all facilities determined by the
Commission to be necessary and convenient for transmi tting ell of
the project power to the interconnected system.
EXIBI 1
CASE NO. IPC-€
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Project No. 2899-003 -34-
Article 304. Before the start of construction, the
licensees shall review and approve the design of contractor-
designed cofferdams and deep excavations and shall ensure that
construction of the cofferdams and deep excavations is consistent
wi th the approved design. At least 30 days before startingconstruction of the cofferdam, the licensees shall submi t to the
Commission's Regional Director and to the Director, Division
of
Dam Safety and Inspections, one copy of the approved~offerdam
construction drawings and specifications and a copy of thelet ter (s) of approval.
Article 305. The licensees shall retain a board of two ormore quali f ied, independent, engineering consul tants to review
the design, specifications, and construction of the project torsafety and adequacy. The names and qualifications of the board
members shall be submi tted for approval to the Director, Division
of Dam Safety and Inspections, wi th a copy to the Commission's
Regional Director. Among other things, the board shall assess
the following: the geology of the project site and surroundings,
the design, specifications, and construction of the reinforcement
berms, canal embankments, spillway, powerhouse, electrical and
mechanical equipment, and emergency power supply;
instrumentation; and construction procedures and progress.
Before each meeting, allowing sufficient time for review, the
licensees shall furnish to the board, wi th a copy to the Regional
Director and two copies to the Director, Division of Dam Safety
and Inspections" the following: documentation showing details
and analyses of design and construction features to be discussed;
significant events in design and construction that have occurred
since the last board of consultants' meeting; drawings; questions
to be asked; a list of items for discussion; an agenda; and a
statement showing. the specific level of review to be performed by
the board. Wi thin 30 days after each board of consultants
meeting, the licensees shall submit to the Commission copies of
the board's report, including the board's recommendations and the
licensee's plans for addressing the recommendatións.
Article 306. At least 60 days before the start ofconstruction of each major component of thet,project, such as the
dam rehabilitation, spillway reconstructibi~' all necessary
transmission facilities, powerhouse, and water conveyance
structures, the licensees shall submit for that component, one
copy to the Commission's Regional Director and two copies to the
Director, Division of Dam Safety and Inspections, of the final
design report, contract drawings and specifications. The
Director, Division of Dam Safety and Inspections t may require
changes in the plans and specifications to assure a safe and
adequa te project.
Article 307. The licensees shall develop procedures for the
repair of the earthfill sections of Milner Dam in the event there
EXBI 1
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Project So. 2899-003 -35-
is excessive leakage. The licensees shall include procedures for
the follo~ing items: inspection; reservoir drawdown; cofferdam
cons truction; earth embankment repair methods; and other
pertinent items. The repair procedure shall be reviewed and
approved by the board of consultants required in Arti~le305.
~i thin one year of issuance of the license, the licensees shall
submi t one copy to the Commission's Regional Director and two
copies to the Director, Division of Dam Safety and Inspections,
of a report detailing the procedures. The Director, Division of
Dam Safety and Inspections, may require changes in the procedures
to assure a safe and adequate project.
Article 308. Wi thin one year of issuance of this license,
the licensees shall submit a report evaluating the feasibility of
constructing a power plant at Milner Dam to utilize the power
potential of the flows released to the bypass reach of the river
below the dam and therefore not usable by the proposed powerplant to be located approximately 1.6 miles downstream. If the
feasibility study shows that developing a power plant at the dam
would be económically beneficial, the licensees shall submi t a
schedule and plans for developing a power plant at the dam in
accordance wi th Article 301.
Article 401. The licensees shall acquire at the earliest
possible date each year, by rental on an annual basis from the
Upper Snake Water Supply Bank, stored water, to the, extent that
it is available in excess of irriiation demand, to be released as
necessary to meet the target flows specified in Article 407. The
licensees may, and are encouraged to, formulate an agreement with
any and all of the licensees for projects which, in the future,
are licensed to be constructed and operated on the Snake River
below American Falls' Dam and which have similar requirements to
meet recommended flows from short-term water acquisition.
Article 402. The licensees, after consultation wi th the
Soil Conservation Service, the Bureau of Land Management, and the
Idaho Department of Fish and Game, and at least 90 days before
beginning any project-related land-clearing, land-disturbing, orspoi I-producing acti vi ties, except for activities s,peci f ically
required for safety modifications to Milner Dam ,-ihê.Jl prepare
and file for Commission approval a plan to contr l'~rosion, slope
stability, and to minimize the quantity of sedim nt resultingfrom project construction and operation. The Co ission reserves
the authority to require changes to the plan.
The plan shall be based on actual-site geol
groundwater conditions and final project desiin,
include the following: (1) a description of the
condi tions; (2) cofferdams, perimeter control meto di vert runoff around disturbed land surfaces
and filter runoff, provisions for energy dissipa
gical, soil, andand shall
ctual-si te
sures, measures
nd to collectriprap,
EXIBI 1
CA NO. IPC-EPACKW. IPC
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Project So. 2899-003 -36-
measures to stabilize rock cuts, and permanent drainage for
acc~ss roads; (3) detailed descriptions, functional designdrai.ings, and specific topographic locations of all control
m~asures; (4) speci fic details of the revegetation plan,
including species composition, planting or seeding rates,ferti 1 izer, and mulch; (5) provi sions to dispose of spoil
materials above the high water mark and store fuels and chemicals
used in construction away from the river and reservoir; (6) a
speci fie implementation schedule and detai Is of moni toring and
maintenance programs for project construction and operation; and
(i) a schedule for periodic review of the plan and for making any
necessary revisions to the plan.
The licensees shall include in the filing documentation of
consul tation wi th the agencies, copies of agency comments or
recommendations on the plan, and specific descriptions of how all
of the agency comments and recommendations are accommodated by
the plan. The licensees shall allow a reasonable time frame, in
no case less than 30 days, for agencies to comment and make
recommendations prior to filing the plan.
No project-related land-disturbing, land-clearing, or spoi l-
producing activities shall begin until the licensees are notified
that the plan complies wi th the requirements of this article,except for acti v i ties speci f ical ly required for safetymodifications to Milner Dam. The licensees shall submit with the
plans and specifications required by Article 306 for safety
modifications to Milner dam, measures to minimize erosion,sedimentation, and control slope stabili ty.
Article 403. The licensees, after consultation with the
Env ironmental Protection Agency, the Idaho Department of Health
and Welfare, the u.s. Fish and Wildlife Service, and the Idaho
Department of Fish and Game, and at least 90 days before
commencing any project related land-clearing, land-disturbing, or
spoil-producing acti vi ties wi thin the Snake Ri ver and Milner
reservoir, shall file for Commission approval, a monitoring plan
to conduct tests for heavy metals and other toxic substances in
any sediments or other unconsolidated deposits in the Snake River
and in Milner reservoir that would be removed or otherwise
distùr ed by dredging, constructing, or operating project
facili ies and to safely remove and dispose of any sediment and
uncons lidated deposits containing heavy metals or toxic
subst ces. The plan also should include an implementation
sched Ie for the moni toring and comments of the consulted
agenci s pn the moni toring plan and implementation schedule. The
filin shall include documentation of agency consultation and any
agenc. comments and recommendations on the plan. The Commission
reser\ es the right to requi re changes to the plan. The i icensees
shall not commence any lanù-clearing or land-disturbing
EXIBI 1
CA NO. IPC-EPAKW.lfII:A~":7rvA?
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Projec ~o. 2899-003 -37-
activi ies within the Snake River and Milner reservoir until the
Commis ion approves the plan.
AEnviro
and ~eDepartbeginn
a watedissolfrom i
powerhdescriperioddata,consulshall
DO necbypassby Art
consulreservshall
the pI n.
ticle 404. The licensees, after consultation with the
mental Protection Agency, the Idaho Department of Heal th
fare, the u.S. Fish and Wildlife Service, and the Idaho
ent of Fish and Game, and at least 90 days before
ng project operation, shall file for Commission approval,
quality monitoring plan that would characterize levels of
ed oxygen (DO) and water temperature in the bypassed reach
mediately below Milner dam to immediately above the
use discharge during project operation. The plan shall
e in detail the methods and shall identify the time
and locations for collecting water temperature and DO
nd shall include a schedule for providing the data to theed agencies and to the Commission. Further, the plan
nclude a provision to determine if water temperature and
ssary for the ~urvival of a trout fishery within the
d reach are being maintained by the target flow required
cle 401. The filing shall include documentation of agency
ation and agency comments on the plan. The Commission
s the right to require changes to the plan. The licensees
ot begin project operation until the Commission approves
ticle 405. The licensees, after consultation wi th the
epartment of Fi sh and Game, shall develop, implement, and
a warmwater fish stocking and habitat enhancement plan
ent wi th the Idaho Fisheries Management Plan 1986-1990 forMilne reservoir. The plan shall include the species of
warmw ter fish, numbers and sizes to be stocked, a description of
speci ic enhancement- structures, and a map showing the proposed
locat' ons of these structures in the reservoir. The licensees
shall file the plan wi th the Commission for approval at least 90days efore beginning commercial operation. The licensees shall
give he Idaho Department of Fish and Game at least 30 days to
comme t on the stocking and habitat enhancement program plan.
The f'ling shall include documentation of agency consultation and
any a ency comments' and recommendations. The Commission reserves
the r'ght to require modifications to the plan. The licensees
shal'l not commence commercial operation until the Commissionappro es the plan.
Idahoplan
r-Ji Inedesi rstockFlshemonit
rticle 406. The licensees i after consultation with the
Department of Fish and Game, shall develop a monitoring
o determine if the habitat enhancement structures placed in
reservoir have remained in place and are funotioning as
d and to determine if additional warmwater fish needlo be
d in Milner reservoir, required by Article 405, to meet th~
ies Management Plan goal. The licensees shall conduct the
ring plan for at le~st five years. The monitoring plan
EXI81
CA NO. 11'-€
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Projec ~o. 2899-003 -38-
shall . nclude a schedule for filing the results of the moni toring
and th comments of the Idaho Department of Fish and Game on the
resul t and shall include recommendations for incorporating
addi ti nal enhancement measures or stocking addi tional ~arm~a ter
fish i needed. The licensees shall file the plan with the
Commis ion for approval at least 90 days before beginning
commer ial operation. The filing shall include documentation of
agency consultation and any agency comments and recommendations.
The Co mission reserves the right to require modifications to the
plan. The licensees shall not commence commercial operation
until he Commission approves the plan.
A
a targMilner
tempor
the co
agreem
and Gaduringthrougaccordneeds.
ticle 40;. The licensees shall discharge from Milner Dam
t flow of 200 cubic feet per second as measured at the
gage located in the bypass reach. The target flow may be
rily reduced if requi red by operating emergencies beyond
trol of the licensees or for short periods upon mutual
nt between the licensees and the Idaho Department of Fish
e. Further, the target flow may be reduced if necessary
any periods where sufficient water is not available
lease from the Upper Snake Water Supply Bank in
nce with Article 401, or from water surplus to irrigation
A ticle 408. The licensees, after consul tation with theIdaho epartment of Fish and Game, shall develop a plan to stock
trout . n the 1.6-mile-long bypassed reach of the Snake River.The pl n must include the following: (1) stocking location (s) ;
(2) th number, species, and size of trout to be stocked each
year; (3) the estimated annual cost of implementing the program;
(4) a ommunication network to inform anglers of the stocking
dates nd locatioos;.and (5) the comments of the Idaho Department
of Fis and Game on the program. The licensees shall file the
plan ith the Commission for approval at least 90 days prior to
came ing commercial operation. The Commission reserves the
right to require modifications to the plan. The licensees shall
not c mmence commercial operation until the Commission approves
the p
rticle 409. The licensees, after consul tation with the
Idaho Department of Fish and Game, shall file a study plan for
Commi sion approval, at least 90 days prior to commencing
comme cial operations, to determine if the put-and-grow trout
fishe y in the bypassed reach, required by Article 408, is
succe sful. The plan shall include provisions for filing annual
repor s by December 31 of each year on the put-and-grow troutstock ng program. The annual report shall iticlude information on
the g owth , movement, and survival of the trout planted in
the
bypas ed reach, we. ter temperature and DO data collected pursuan t
to Ar icle 404, and an evaluation of the effects of water
tempe 'ature and DO on the stocking program and the comments of
EXIBI 1
CASE NO. IPC-€
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Projec ~o. 2899-003 -39-
the ld ho Department of Fi sh and Game on the results. The
licens es shall give the Idaho Department of Fish and Game at
l~ast o days to comment on the results of the stocking program
prior 0 filing the annual report. The licensees shall conduct
th~ mo itoring program for at least five years and file a final
compre ensive report on the success of the stocking program and
any re ommendations for changing the stocking program, including
at am' nimum stocking new locations or changing the stocking
rate. The Commission reserves the right to require modifications
to the trout program based on the moni toring results. The
licens es shall not begin commercial operation until the
Commis ion approves the plan.
Iyear s
needed
schedu
the co
recommrequir, stocki
A
changeless frecrea
the Id
Parks
the pr
foot pprovidbypassrecrealicens
recommapprov
Agency
rampirireserv
rampin
Atransm
"SuggeStateThe IiServic
Land ~j
implenienergi
tide qua
the results of the annual monitoring or after the five-
udy period show that changes to the stocking program are
the licensees also shall file for Commission approval a
e for implementing the changes to the program along wi th
ments of the Idaho Department of Fish and Game on the
nded changes. The Commission reserves the right to
modi frcations to the recommendations for changing the
g program.
ticle 410. The licensees shall limit the maximum rate of
in river elevation (ramping rate) to one foot per hour or
r the protection of aquatic resources and downstream
ionists. Further, the licensees, after consultation wi th
ho Department of Fish and Game and the Idaho Department of
nd Recreation, shall conduct a ramping rate study after
ject is operational. The study shall determine if the one
r hour rate of change in the Snake River's elevation
s adequate protection for the aquatic resources in the
d reach during project startup and to protect downstream
ionists when increasing and decreasing flows. The
es shall file the results of the study along with any
ndations for changing the ramping rate for Commission
1 wi thin one year after the project is operational.
comments on the study and any proposed changes to the
rate shall be included wi th the filing. The Commission
s the right to require modifications to the proposedrate.
ticle 411. The licensees shall design and construct the
ssion line in accordance wi th guidelines set forth in
ted Practices for Raptor Protection on Power Lines--the .
f the Art in 1981," by Raptor Research Foundation, Inc.
ensees after consultation with the U.S. Fiah and Wildlife
, the Idaho Department of Fish and Game, and the Bureau of
nagement in adopting these guidelines shall develop and
nt a design that will provide adequate separation of
ed conductors, groundwires, and other metal hardware,
e insulati on, and any other measures necessary to pro~ec t
EXHIBI 1
CASE NO IPC-€ø.orKW_ IfI
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Projec ~o. 2899-003
rapt-or
comple
I icensdesign
A
U.S. F
Game,ServicdistuI'specifshalldistur
The pIplantvalue
method
moni toplanti
moni to
(6) an
as soothe fibe increquirland-crequir
appro\'
-40-
from electrocution hazards. ~i thin 90 days after
ion of construction of the transmission line, the
es shall file as-buil t dra~ings of the transmission
~ith the Commission.
line
ticle 412. The licensees, after consultation ~ith the
sh and ~ildlife Service, the Idaho Department of Fish and
he Bureau of Land Management, and the Soil Conservation
, and at least 90 days prior to commencing any land-ing, land-clearing, or spoil-producing acti vi ties not
cally required ~or safety modifications to Milner Dam,
ile for Commission approval a plan to revegetate alled areas ~ith native plant species beneficial to wildlife.n shall include at a minimum: (1) a description of the
pecies to be used, an indication of each species habitat
nd food value, and planting densities; (2) planting
; (3) fertilization and irrigation requirements; (4) a
ing program to evaluate the effectiveness of the
gs; (5) a description of procedures to be followed if
ing reveals that the revegetation is not successful; and
implementation schedule that provides for the revegetationas practicable after completion at a particular si te and
ing of periodic monitoring reports. Agency comments shall
uded on the filing. The Commission reserves the right to
changes to the plan. The licensees shall not begin any
earing or land-disturbing activities not specifically
d for safety modifications to Milner Dam until the plan is
d by the Commission.
A ticle 413. The licensees, after consultation wi th the
U.S. F'sh and Wildlife Service, the Idaho Department of Fish andGame, nd the Bureau. of Land Management, and at least 90 days
before beginning any project-related land-clearing or land-
distur ing activities not specifically required for safety
modifi ations to Milner Dam, shall £ile for Commission approval a
plan f r constructing, maintaining, and monitoring osprey nesting
platfo ms, Canada goose-nesting structures, and artificial
burro for burrowing owls (wildlife enhancement features) in the
proje t area. The 'plan shall include at a minimum: (1) the final
desig for the wildlife enhancement features; (2) the number and
locati n of the wildlife enhancement features; (3) a schedule for
provi ing the wildlife enhancement features; (4) and a program
for m intenance and moni toring. Agency comments on the adequacy
of th plan shall be included in the filing. The Commission
reser es the right to require changes to the plan. The licensees
shall not commence any land-clearing or land-disturbing
activ'ties not specifically required for safety modifications to
Hilne Dam, until the plan is approved by the Commission.
rticle 414. The 1 icensees, after consul tation wi th the
U.S. ish and Wildlife Service, the Idaho Department of Fish and
EXlBl1
CASE NO.IPC~PACKW.IPC
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Projec ~o. 2899-003 -41-
Game, he Bureau of Land Management, and the Environmental
Protec ion Agency, and at least 90 days before beginning anyprojec related land-disturbing or land-clearing activities not
specif ~ally required for safety modifications to Milner Dam,
shall ile for Commission approval a plan for developing at least23.5 a res of riparian wetland habi tat to mi tigate for the loss
of 6.8 acres of riparian wetlands and 26.6 acres of upland
habita. The plan shall include, but shall not be limited to:( 1) rna s showing the location of all replacement habi ta t, site
bounda ies, size of each site, and physical and habitat features;
(2) a escription of planting methods, fertilization and
irriga ion requirements, and a planting schedule j (3) a
descri tion of the soil and substrate condi tions at thereplac ment si tes j (4) a moni toring program that includes goals
and cr teria for successful establishment of wetland vegetation,
sampli g procedures, and reporting requirements; (5) procedures
to imp ement if moni toring reveals that establishment of
vegeta ion is not successful; (6) an implementation schedule thatprovid s for habi ta t replacement as soon as practicable; and (i)
a desc iption .of the program for the long-term ownership,
manage ent, and maintenance of the replacement habitat. Agency
commen s shall be included in the filing. The Commission
reserv s the righ l to requi re changes to the plan. The licensees
shallot commence any land-clearing or land-disturbing
activities not specifically required for safety modifications to
Milne Dam until the plan is approved by the Commission.
rticle 415. The licensees, for a total period of eight
days or eight daylight hours each day (64 dayliiht hours)
betwe n April 1 and May 31, shall not operate the main
power ouse, to be located 1.6 miles downstream of Milner dam,
when . nflow to Milner reservoir, less irrigation wi thdrawals fromMilne Reservoir, is 10, 000 cubic feet per second (cfs) or more.When rojections of available flows indicate that the flows in
April and May will not reach 10,000 cfs, the licensees shall
shut own the main powerhouse for eight dayliiht hours per day
for u to eight days, when inflow to Milner reservoir, less
irrig tion withdrawals from Milner reser~oir is between 4,000 and
~~J 00 cfs. The licensees do not have to shut down the projecti''h th Aprii-toiay period if the flows do not exceed 4, 000 cfs in
the ~ riod. The timing of the 64-daylight-hour project shutdown
to me t the above obligation may be modified by the Commission,
~ased on the results of the whitewater boating study required by
Artic e 418.
~t:cle .416. The licensees i after consultation wi th the
of Land Management, the National Park Service, the Idaho
Depar men t of Parks and Recreation, and the Idaho Whi tewa ter
ASsoc' a tion i and 90 days before starting project operation,
shall file for Commission approval, a plan to warn downstream
~ecre tionists of ihcreases in flo~ downstream of the dam for'
EXIB 1
CASE NO IPC-EPAKW.lfI
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Projec ~o. 2899-003 -42-
whi tew ter boating. The plan, at a minimum shall include
pr~vi~'ons for a warning system (e.g., lights, alarms, warning
si~n~) to alert downstream recreationists of increases in water
level nd streamflow. Documentation of agency consultation shall
be inc uded in the fil ing. The Commission reserves the right to
r~quir changes to the plan.
A ticle 417. The licensees, after consultation with the
Bureau of Reclamation, Bureau of Land Management, the National
Park S rvice, the Idaho Department of water Resources, the Idaho
Depart ent of Parks and Recreation, and the Idaho ~hitewater
Associ tion, and 90 days before starting project operation, shall
file f r Commission approval, a plan for a communication net~ork
to inf rm whitewater boaters of available whitewater flows. The
plan s all include documentation of agency consultation. The
Commis ion reserves the right to require changes to the plan.
A ticle 418. The licensees, after consultation with the
Bureau of Land Management, the National Park Service, the Bureau
of Rec amatiori, the Idaho Department of Parks and Recreation, the
Idaho epartment of Water Resources, and the Idaho whitewater
Associ tion, shall conduct a study to determine whether flows
requir d by Article 415 could be modified to more closely match
whi tew ter boater needs and reduce the effects of whi tewa ter
releas s on project economics. ~i thin six months from the
issuan e date of this license, the licensees shall file for
Commis ion approval a plan for conducting the whi tewater boating
study. The licensees shall conduct the study as approved by the
Commis ion and, wi thin 90 days before the start of project
operat'on, the licensee shall file with the Commission, resultsof the study. Study results must include: ( 1) an analys i s of
the ra g~ of whi tewater flows necessary to maintain the Class Vwhi tew t r experience preferred by boaters running the t-li lner
reach; () the time of day and week when boaters put in and take
out 0 the Milner reach; (3) the average number of runs boaters
'make i a gi yen day; (4) a proposed schedule for releasing flows
for w itewater boating that describes the range of flows to be
provi ed, the duration of the flows, and time of day and week
these flows will be provided; (5) a discussion of recommendations
p~ovi ed .by the consul ted agencies and entities; and (6)
d¡cCUlD ntation of consultation with the above-named entities. The
C'ommi sion reserves the right to require changes to the plan.
Burea
Depar
Assocland-
(:exce~ppro
(¡) p
rticle 419. The licensees, after consultation wi th the
of Land Management, the National Park Service, the Idaho
ment of Parks and Recreation, and the Idaho Whitewater
ation, and 90 days before starting any project-relatedlearing, land-disturbing, or spoi l-producing acti vi ties
t rehabilitation of Milner Dam), shall file for Commission
al a recreation plan that includes, but is not limited to:ov i s ions for a wh i tewa ter boa ter put-in area at the bridge
EXIBlT1CA NO. 1P-EPACK.IPCOAt"CA": nfA?
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Prpjec No. 2899-003
below
wi!th p
ar'ea b
type a
sc!hedu
moni to
for ad
documeshallwhitew
pdwerh
where
The Co
Astartaotivi
Cdmmisfollowareas
-43-
ilher Dam and a take-out area below the project powerhouse
rking facilities; (2) provisions for a tailwater fishing
low the powerhouse; (3) final design drawings showing the
d location of the proposed facilities; (4) a construction
e for proposed recreational facilities; (5) a plan for
ing recreational use in the project area to determine the
itional recreational facilities in the future; and (6)
tation of agency consultation. In the plan, the licensees
Iso consider the feasibility of (1) providing the
ter take-out area below the final Class V rapid below the
use area and (2) locating the take-out area in a_ locationt does not interfere with tailwater fishing facili ties.
mission reserves the right to require changes to the plan.
ticle 420. The licensees, at least 90 days before the
f any land-clearing, land-disturbing, or spoil-producing
ies for each segment of the project, shall file for
ion approval, ei ther separately or in combination, the
ng plans to blend all project features and project related
f land -disturbance with the surrounding landscape:
1 detai led site-grading and revegetation design plans foreách s iI, gravel, or rock borrow site, and spoil disposal site j
2 a design for eliminating the visual impact of the
transm ssion line from the powerhouse to the forebay area;
3vegetadesiJlneach t
4
p~anneconstrcOltrpensto
detailed design drawings which describe the planned
ion clearing, the specific tower or pole locations and
and the specifications for the materials to be used in
ansmission line facility;
.
des igns, alignments, profiles, construction limits,
vegetation clearing, proposed surfacing, and the
ction specifications for all access roads, parking lots ,
ction laydown areas, canals, and surface or buried
k routes, including the required rights-of-way; and
detailed design drawings which describe the planned
ctural features, colors, surface textures, site grading,
dscape plantings for each structure.
e licensee shall include with the filin. documentation of
ation with Bureau of Land Manaiement (BLM) and copies of
ments and recommendations.. The Commission .ay require
to the plans. No land-clearing, land-disturbing, orroducinJl acti vi ties shall be.in until the licensees are
d that the above plans comply with the requirements ofticle.
-'.... .EXI81
CA NO. IPC-8PACKW,IPC. . -t..___- " ...
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A ticle 421. The licensees, after consultation wi th the
Idaho tate Historic Preservation Officer (SHPO), the AdvisorvCounci on Historic Preservation (Council), and the Historic.
Americ n Engineer~ng ~ecord ~~AER) of the Department of the
Interi r, shall finali ze and 'implement the cultural resources
manage ent plan as filed by letter dated February 11, 1986, and
shall nclude the revisions recommended by the ~ational Park
Servic by letter dated February 4, 1986. ~ithin one year from
the da e of this license, the licensees shall file for Commission
approv 1 a report containing the HAER documentation of Ni Iner Dam
and th South Side Canal, the procedures for avoiding impacts to
Milner Townsi te, and the documentation of archeological si te 10-TF-461. The documentation and avoidance procedures at these
si tes ay be filed in separate reports as the items are
comple ed. The reports must contain letters from the SHPO, the
Counci , and in the case of the dam and the canal, also from theHAER, ccepting the documentation. No rehabilitation work or
land- . sturbing or land-clearing work may begin at the historic
or arc eological si tes addressed in the report until the
licens es are -notified that the filing or filings have been
approv d. The licensees shall make funds available in a
reaso ble amount for implementation of the plan. If the
I icen the SHPO, the Counci I, and the HAER cannot agree on
the a unt of money to be spent for implementation of the plan,the C mission reserves the right to require the licensees to
condu t the necessary work at the licensees' own expense.
rticle 422. The licensees, before starting any land-clear' ng or land-disturbing acti vi ties wi thin the project
ries, other than those specifically authorized in this
e, shall consult with the Idaho State Historic Preservation
r (SHPO), shall conduct a cultural resources survey of the
hat will be impacted, and shall file for Commission
al a cultural resources management plan, prepared by a
ied cultural resources specialist. If the licensees
er any previously unidentified archeological or historic
during the course of construction or developing projector other facil i ties at the project, the licensees shall11 land-clearing and land-disturbing acti vi ties in the
ty of the si tes, ~-hà.-ii consult wi th the SHPO, and shall
or Commission approval a ne'- cuI tural resources management
prepared by a qualified cultural resources specialist.
boundlicenOfficarea
approqualidiscosites
worksstopvicinrile'plan,
dE'scrlisteHislo
each
mi ligconsu
condu
i ther management plan shall include the following: (1) a
ption of each discovered si te, indicating whether it is
or eligible to be listed on the National Register of
1c Places i (2) a description of the potential effect
on
iscovered si te; (3) proposed measures for avoiding or
ting effects i (4) documentation of the nature and extent
tation; (5) a schedule for mi t igating effects and
ting additional studies, and (6) a copy of a letter from
of
EXlsriCA NO. tPC-EPAKW, tfl
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the SHP
to the
Thdisturb
in this
site di
Commissfulfill
-45-
accepting the plan.Ian.The Commission may require changes
licensees shall not begin land-clearing or land-
ng activities, other than those specifically authorized
license, or resume such activities in the vicinity of a
covered during construction, until informed by the
on that the requirements of this article have been
d.
icle 423. The Commission, upon its own motion or upon
the mmendation of federal or state fish and wildlife agencies
or affe ted Indian Tribes, reserves the authori ty to orderal tera t' ons of project structures and operations to take into
account to the fullest extent practicable at each stage of the
decisio -making process the Columbia River Basin Fish and
~ildlif Program developed and amended in accordance with the
Pacific Northwest Electric Power Planning and Conservation Act.
Ar icle (24. (a) In accordance with the provisions of this
article, the licensees shall have the authori ty to grant
permiss' on for certain types of use and occupancy of project
lands a d waters and to convey certain interests in project lands
and wat rs for certain types of use and occupancy, wi thout prior
Commiss' on approval. The licensees may exercise the authori ty
only if the proposed use and occupancy is consistent wi th thepurpose of protecting and enhancing the scenic, recreational,
and oth r environmental values of the project. For thosepurpose , the licensees also shall have continuing responsibili ty
to supe vise and control the use and occupancies for which they
grants ermission and to monitor the use of and to ensure
complia ce wi th the covenants of the instrument of conveyance for
any int rests that they convey under this article. If a
permit d use and occupancy violates any condition of this
~rticl or any other condi tion imposed by the licensees for the
protec ion and enhancement of the project's scenic, recreational,
or oth r environmental values or if a covenant of a conveyance
made u er the authority of this article is violated, the
licens s shall take any lawful ae'l:d.on necessary to correct the
violat' n. For a permi tted use o~~ccupancy, that action
includ s, if necessary, cancelling the permission to use and
occupy the project lands and waters and requirini the removal ofany no complying structures and facili ties.
(water
Commis
commerfacili
time adwell i
) The types of use and occupancy of project lands and
or which the licensees may grant permission without prior
ion approval are these: (1) landscape plantings; (2) non-
ial piers, landings, boat docks, or similar structures and
ies that can accommodate no more than 10 watercraft at a
d where the facility is intended to serve single-famil~
gs; and (3) embankments, bulkheads, retaining walls, or
EXIBIT 1
CASE NOIPC~
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Projec ~o. 2899-003 -46-
5 imi la 5 tructures for eros ion control to protect the exi sting
shore 1 ' ne. To the extent feasible and desirable to protect andenhanc the project's scenic, recreational, and otherenv i ro mental values, the licensees shall require multiple use
and oc upancy of facilities for access to project lands orwaters The licensees also shall ensure to the satisfaction of
the Co mission's authorized representative that the use and
occupa cies for which they grant permission are maintained in
good r pair and comply wi th applicable state and local heal th andsafety requi rements. Before granting permission for cons truction
of bul heads or retaining walls, the licensees shall do the
follow ng: ( 1) inspect the si te of the proposed construction,
(2) co sider whether the planting of vegetation or the use of
riprap would be adequate to control erosion at the site, and (3)
determ ne that the proposed cons truction is needed and would not
change the basic contour of the reservoir shoreline. To
implem nt this paragraph (b), the licensees, among other things,
may es ablish a program for issuing permits for the specified
types f use and occupancy of project lands and waters that maybe sub' ect to -the payment of a reasonable fee to cover the
licens es' costs of administering the permit program. The
Commis ion reserves the right to require the licensees to file a
descri tion of their standards, guidelines, and procedures for
implem nting this paragraph (b) and to require modification of
those tandards, guidel ines, or procedures.
) The licensees may convey easements or rights-of-wayacross or leases of project lands for these purposes: ( 1 )
replac ment, expansion, realignment, or maintenance of bridges
and ro ds for which all necessary state and federal approvals
have en obtained; (2) storm drains and water mains; (3) sewers
that not discharge into project waters; (4) minor accessroads; (5) telephone, gas, and electric utili ty distribution
1 ines; (6) nonproject overhead electric transmission lines thatdo no require erection of support structures wi thin the project
bound ry; (;) submarine, overhead, or underground major te lephonedi str' bution cables or major electric distrlbution lines (69-kV
or Ie s); and (8) water intake or pumpingf,-cili ties that d9 not
extra t more than 1 million gallons per day¡ from a project
res~r oir. No later than January 31 of eách year, the licensees
shall file three copies of a report that br~eflY describes for
each onveyance made under this paragraph (p) during the prior
calen ar )'ear the type of interest conveyed¡, the location of the
lands subject to the conveyance, and the na~ure of the use for
which the interest was conveyed.
dl The licensees may convey fee titl~ to, easements orright -ot-way across, or leases of project llands for the
folIo 'ing: ( 1) construction of new bridge~ or roads for which
all n cessary state and federal approvals ~ave been obtained; (2)sewer or effluent lines that discharge int~ project waters, for'
EXIBI 1
CASE NO.IPC-8
PACKW. IPC
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Project No. 2899-003 -4 i-
which 11 necessary federal and state water quality certification
or per its have been obtained; (3) other pipelines that crossprojec lands or waters but do not discharge I into project waters;
(4) no project overhead elec~ric transmission lines requiring
erecti n of support structurês wi thin the project boundary for
which 11 necessary federal and state approv~ls have been
obtain d; (5) private or public marinas that I can accommodate nomore t an 10 watercraft at a time and are located at leas t one-half m'le from any other private or public m.rina; (6)
recrea ional development consistent with an ~pproved exhibitR oran app oved report on recreational resources I of an exhibi t E; and
(7) ot er uses, if these conditions exist: (i) the amount of
land c nveyed for a particular use is 5 acres or less; (ii) all
of the land conveyed is located at least 75 feet, measured
horizo tally, from the edge of the project r~servoir at normalmaximu surface elevation; and (iii) no more! than 50 total acres
of pro ect lands for each project development are conveyed under
this cause (d) (7) in any calendar year. At! least 45 days before
convey ng any interest in project lands unde~ this paragraph (d),
the Ii ensees'shall submit a letter to the D~rector, Office of
H3"drop wer Licensing, stating the licensees i: intent to convey the
intere t and briefly describing the type of ~nterest and the
locati n of the lands to be conveyed (a mark~d exhibi t G or K mapmay be used), the nature of the proposed use!, the identi ty of any
federa or state agency official consul ted, .nd any federal or
state pprovals required for the proposed us~. Unless the
Direct r, wi thin 45 days from the filing datle, requires the
licens e to file an application for prior aplproval, the licenseesmay co vey the intended interest at the end ¡of that period.
( ) The ~ollowing additional conditions apply to any
intend d conveyance under paragraph (c) or (Id) of this article:
( ) Before conveying the interest, th~ licensees shallconsul wi th appropriate federal and state ~ish and wildlife or
recrea ional agencies and wi th the State Historic PreservationOffice .
( ) Before conveying the interest, the licensees shall
determ. ne that the proposed use of' the land~ to be conveyed is
not in onsistent with any approved exhibit R or an approvedreport on recreational resources of an exhi ~i t E or if theprojec does not have an approved exhibit R I or an approved report
on rec eational resources, that the lands to be conveyed do nothave creational value.
runni
use 0nuisarecre
(3) The instrument of conveyance shall include covenantsg wi th the land adequate to ensure th~ following: ( i) thethe lands conveyed shall not endanger heal th, crea te ace, or otherwise be incompatible wi th I overall project
tional use; and (i i) the gran tee shal¡ take all reasonable
EX8I1
CASE NO. IPC~PACKW.lfI
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Proje t ~o. 2899-003 -48-
preca t ions to ensure that the cons truct ion ¡ operation, and
maint nance of structures or facili ties on the conveyed lands
occur in a manner that protects the scenic, ¡recreational, and
envir nmental values of the project. '
(4 )licenviolaprote
and 0
this
The punderdrawiland.
the pnecesmaintenvirpresecircuartic
whenother
The Commission reserves the right ito require the
to take reasonable remedial actiom to correct any
ion of the terms and condi tions of this article for the
tion and enhancement of the project's ¡scenic, recreational,her environmental values.
The conveyance of an interest in project lands under
rticle does not in itself change the project boundaries.
oject boundaries may be changed to exçlude land conveyed
this article only upon approval of reyised Exhibi t G or K
gs (project boundary maps) reflecting! exclusion of that
Lands conveyed under this article shall be excluded from
oject only on a determination that the lands are not
ary for project purposes, such as operation and
nance, flowage, recreation, public access, protection of
nmental resources, and shoreline cont~ol, including the
vation of shoreline aesthetic values. Absent extraordinary
stances, proposals to exclude lands cpnveyed under this
e from the project shall be consolidated for consideration
evised exhibi t G or K drawings are filled for approval forpurposes.
g) The authori ty granted to the licensees under this
artic e shall not apply to any part of the public lands andreser ations of the United States included ~i thin th~ project
bound rYe
filin
o'1Ier
of se
Commi
licen
in wh( 1) t( 2) tlands
E) The licensees shall serve copies ¡of any Commission
required by this order on any entit~ specified in this
to be consulted on matters related to that filing. Proof
vice on these entities must accompany the filing with thesion.
F) Wi thin 60' days of the issuance o~ this order, th~
ees shall submi t the following infor_ation for each county
ch federal lands, utilized by the project, are included:e number of nontransmission line acres of U. S. lands; ande number of transmission line right-of-way acres of U. s.
(G) This order is final unless an application for rehearingis f i ed wi thin 30 days from the date of its issuance, asprovi ed in Section 313 of the FPA. The riling of an applicationfor r hearing does not operate as a stay of the effec live da le 0 f
its i suance or of any other date specified in this order, except
as s cifically ordered by the Commission. i The iicensee~ i
EXIBl1
CA NO. IPC-€PAKW.IPC
D.at: AQ ni A?
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Projec ~o. 2899-003
failuraccept
-49-
file an application for rehearing shall consti tute
of this license.
By the Commission. Commissioner Moler concurred wi th a separatestatement attached.( S E L)
Lois D. Cashell,Secretanr.
EXIBI 1
CASE NO IPC-EPACKW,IPC
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Project No. 2899-003 -1- '
SAFETY A~D DESIGS ASSESSMEN~
MILNER HYDROELECTRIC PROJEC~
FERC NO. 2899-001, 1D
Project Design
Mi ner Dam is located at a site on the Snake River where the
river d vides into three channels, separated by two islands.Before he dam was buil t, the north channel ciarried the main rio"'.
of the iver, the south channel carried wate~ only during extreme
flood e ents, and the middle channel was dry,i except during
periods of high water. Milner reservoir pro~ides water to three
canals, the Twin Falls, North S ide Main, and IMi lner Gooding
Canals, and to three pumping stations, MilneI1 Low Lift, A and B
Irrigat . on, and North Side Pumping Company. ¡Cumulatively, the
canals nd the pumping plants serve approxim~tely 500,000 acres.
Co struction of Milner Dam started in 1~03 and was completed
in 1905. The ~am has three embankments (north, middle, and
south); each embankment is constructed with ~ trapezoidal shaped
rockfil section wi th a vertical wood cutoff iwaii in the center
of each embankment. The rockfill sections consist primarily of
angular boulder and cobble-size blocks of ol~vine basal t rock.
The cut ff walls were damaged during construqtion, and when the
builder first tried to fill the reservoir, the dam leaked; on the
upstre side of the embankments, nonplastic i sandy silt was
sluice into the rockfill to stop the leakage. Each embankment
was bui 1 t with a horizontal-to-vertical downetream slope of 1.5
to 1 (1.5: 1) and an upstream slope of 4: i . The north embankment
has a est length of 280 feet and a crest e1evation of 4,138
feet; 44 the middle embankment has a crest l.ngth of 404 feet
and a rest elevation of 4,138 feet; and the ¡ south embankment has
a cres length of 462 feet and a crest elevation of 4,138 feet.
esently, flows are released from the .am by a gated
y located on the southern island. The spillway is ae structure, 487 feet long, wi th a crest elevation of
4,122. feet and with 99 wood slide gates, e~ch 4 feet wide by 12
feet h' gh, which are individually lifted by a hydraulic
mechan'sm. An ungated emergency spillway with a concrete-core
cutoff wall is located on the north island; the emergency
spillw y is 290 feet long and has a crest elevation of 4,134
feet. The dam has no operable low-level outlet or reservoirdrain. .
4 All elevations are relative to mean ea level.
EXBI 1
CASE NO 1f-E
PACKW, IPC
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Projec ~o. 2899-003 -2-
F ows from Milner Lake to Twin Falls Ma~n Canal are
contro led by a concrete structure wi th seven manually operated
radial gates. The headworks is located on the south abutment.
T
downst
of eac
the ex
\oould
e applicants propose to construct roc~fill berms on the
earn slopes of the three existing darn ~mbankments. The top
berm would be 15 feet wide and 10 feet below the crest of
sting embankments, and the downstream! slope of each berme 3.75:1. '
T e applicants would replace the existing gated spillwaywith a new spillway that would have 11 radiail gates, each 12 feet
high a d 30 feet wide. One gate would have ~ hinged gate flap at
its cr st to provide for passing floating debris. The crest
elevat on would remain at 4122.5 feet. The ~pillway outletchanne which would be lined wi th concrete tlo prevent erosion,would ave a capaci ty of 58,000 cubic feet per second (cfs) at a
reserv ir elevation of 4,133.5 feet. .
T e Twin ~alls Main Canal has a maximu. design hydraulic
capaci y of 3,200 cfs. The applicants propqse to do the
follow'ng: increase the canal capacity; modify the headworks;
build wasteway; and build a new control structure. The
applic nts would increase the canal's capac~ty to 7,000 cfs,
raise he right embankment of,the canal nean Milner Dam to
elevat' on 4,137.5 feet to provide four feet iof freeboard and
widen he crest 'to 20 feet. The applicants iwould modify the
existi g canal headworks structure to install stoplogs for
dewat ing the canal and forebay area when needed. The
appli nts would build a wasteway for sluicing ice from the canal
and f r removing flows in the canal if there is a powerplant load
rejec ion. The concrete wasteway would control flows wi th one
hydra lically operated bascule gate designeQ to pass the maximum
power ouse flow of 4,000 cfs and would retufn flows to the Snake
Ri ver. To control irrigation releases to t~e canal, the
appli ants would build a new control structure, approximately
1 ,600 feet downstream from the wasteway.' The concrete structure
would have six manually operated radial gates, each 12-foot-wide
by 15 foot-high and one hydraul ically operated bascule gate, 24-feet- long by I1-feet-high. .
he applicants would build a forebay tb convey flows from
the c nal to the project intake and a concr~te intake structure
to co vey flows to the penstock.' A cable-operated, fixed-wheel
gate, 14-foot-wide by 17-foot-high, would p~rmit closing the
penst ck for emergency shut down or maintenlance of the penstock
and t rbine. The penstock would be a 17-f~ot-diameter steelpipe , approximately 385 feet long.
he powerhouse would be a semi -outdoo~, reinforced-concrete
struc ure, approximately 89-feet-long by 5~-feet-wide, housing
EXBIT i
CASE NO.IPC~PACKW.IPC
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Prüjec No. 2899-003
3-3-
one ge erating unit, rated at 43.65 megawatts (MW). The
püwerh use would be located near the bottom bf the Snake RiverCanyon The genera tor would be connected to' a Kaplan turbine,
ra ted t 59,650 horsepower under a net head pf 151.6 feet and a
di scha ge of 4,000 cfs. Flows from the powerhouse would be
return d to the Snake River through a 170-fobt-long tailrace
channe. The tailrace would have a 46-foot-wide base wi th side
s lope s 0 f O. 2 5 : 1 .
Projec Safety
T e hazard potential of a dam is the potential for loss ofhuman i fe or property damage that would resiul t from failure ofthe da .
SRiver
canyon
hydroeplant.operat
downst
canyon
Dam.
downst
arting at Nilner Dam, the Snake Rivet flows into the Snake
orge, a narrow, practically inaccessilble, steep-walled
Development downstream of Milner D~m, includes four
ectric projects, two golf courses anq a sewage treatment
The four hydroelectric projects do qot have full time
rs, and the sewage treatment plant i$ located 25 miles
eam of the dam. The poor access and ¡ruggedness of the
limit recreational use of the Snake River below Milner
ai lure of the project, therefore, would result in minimal
eam impacts.
. lner Dam .was inspected by the Portla~d Regional Office onOctobe 13, 1988. The inspector determined I that even though it
poses nly a minimal threat to downstreamllfe and property,
failu of Milner Dam would have the potentlal to cause
catas ophic damage to the economy of the atea, "the Magic Valley
of Id ho". Approximately 500,000 acres of tarm land is dependent
upon . rrigation water diverted at Milner Dam, and the economy of
the M gic Valley depends on the agricultural production of the
500,0 0 acres of farmland.
signi
it sahalfcondi
ecause the Regional Office rates Miln~r Dam as having a
icant hazard potential, the dam shoul~ be modified to make
e against failure under earthquake lo~ding and under one-
robable maximum flood (PMF) loading (58,000 cfs)ions.
ach of the three dam embankments, di.cussed earlier,
consl ts of a large, trapezoidal' rockfi 11 ~ection with a zone of
hydra lic-fill earth material, placed dire~tly against the
upstr am face, as the water barrier. Each lembankment has a
verti al wooden core in the center of the tockfill section. The
woode i cores were damaged during construct~on and are assumed to
be an ineffective barrier to seepage. Because there is no filter
betwe n the rockfill and the upstream eart~en barrier, the
upstr am hydraulic-fill material, when disturbed, can be washed
EXIBI 1CA NO. IPC-E
PACKW, IfI
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Project ~o. 2899-003
4-4-
through the rockfill (piping leak o~ piping failure).
lng studies performed by the consul t~nt for the applicant
t the upstream hydraulic-fill materi~l is comprised ofse to loose nonplastic sandy silts atid silty sands that
eptible to liquefaction (complete lo~s of strength) under
loading condi tions. The slumping of Ithe upstream fill
en a path for water from the reservo~r to pass through
hen barrier and to enter the rockfillJ in the embankments.
, by the applicants' consul tant, of (lows through the
sections of the embankments, shows that a large leak
lease enough water to destablize the !downstream slopes of
fill zones. If this happens, progre~sive raveling of theam face could breech an embankment. '
A ording to the applicants' records, s~nce 1905, Milner Dam
has ex rienced 10 piping leaks, the first oqcurring in 1905 wi th
the initial filling of the reservoir and the ,last in March 1983.
All of the piping leaks were repaired soon a~ter they occurredwi th li ttle disruption to irrigation service ~ To reduce the
needed time ta begin leak repairs, the applicants currently
stockpile earthen repair material on both banks of the river.
T stabilize the slopes if an earthquake causes a piping
failur , the applicants' consultant proposes i to construct a
rockfi 1 berm on the downstream slope of eacn embankment. The
berms ould increase the downstream slope of I the embankment from1.5: 1 0 3.75: 1;, the major portion of the betms would consist of
rock a eraging 24 inches in size, while the lower portion would
be fac d with rock averaging 48 inches in si~e or larger. This
repair approach would still require the appl~cants to maintain
stockp'les of material to repair any leaks which could develop inthe ea thfill section. '
S nce the license would authorize major' modifications of a
daïi"wi h a significant hazard potential, thei staff recommends the
inclus on of special license Article 305 req~iring the licensees
to ret in a board of consultants to review the design and
constr ction of the project for safety and a~equacy.
B cause the water diverted by Milner Dain is cri tical to the
wellbe ng of the Magic Valley, the staff recpmmends the inclusion
of spe ial license Article 307, requiring th~ licensees, inconsul ation wi th the board of consul tants, Ito develop a detailed
manual of procedures for repairing Milner Daim if there isexcess ve leakage. .
B sed on an inspection of the project .nd on discussions
wi th t e applicants, the staff finds the pr~ject to be
satisr ctorily maintained. The staff found ,minor seepage areas
on the north, middle, and south embankments.1 These areas w i1 i
contin e to be monitored in the future. Th~ staff had trouble
EXBI'
CA NO. Ifl-EPACKW, IPC
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Projec
inspecvegetadirectvegela
inspec
Treplacspill\.
510\. ,
The 11the ti
The ne
(IDF)one-haacceptdownst
Tconstrpracti
Primar
Water
of fr
Dam 'i
the p
about
Envir
Auger
lie-en
flow
iI'I'ig
Resou
So. 2899-003
5-5-
,
ing the toe of the dam because it is covered wi th
ion. The Director of the Portland Regional Office will
the licensees, if a license i s issue~, to remove the
ion that interferes wi th the Commissipn' s dam safety
ion programs.
improve \.inter operations, the applipants propose to
the existing spillway. The 99 \.oode~ gates of the
y now have to be raised individually. The process is
ecause the applicants have only two ~oisting mechanisms.
new gates would greatly improve oper~tion and would reduce
e needed to adjust the spilla~e unde~ flood conditions.
spillway would be designed to pass ~n inflow design floodf 58,000 cfs; the IDF represents a s¡pillwa)' capaci t;r of
f of the PMF. An IDF that is less t~an the full PMFis
ble because the failure of Milner Da. would not threaten
eam life.
e proposed project would be safe and ¡adequate if
cted and/or rehabilated according to !sound engineering
e, and the requirements of a license ~
Transmission Facili ties
e primary transmission line segment would include the 1.4-
ng 138-kilovo1 t (kV) transmission line connecting the
generator to the interconnected transmission system at
ner substation 138-kV bus and its support facili ties.
Planning
stated earlier, the applicants proP9se to use the
g Twin Falls main irrigation canal to convey water left
om irrigation requirements to the proposed power
ies, 1.6 miles downstream of the exi$ting Milner Dam. Any
sed for generation in the proposed powerhouse thus would
the 1.6 mi les of i' i vel' channel below i Mi lner Dam.
"
e ~ proposed powerhouse would have the i capaci ty to use flows
.900 to 4,000 cfs. T)'pically, the flows that pass Milner
the summer are low, not generally exbeeding 500 cfs, and
oposed powerhouse would not be expect~d to operate from
mid-June through mid-September.
he staff, on page 5-3 of its Snake River Draft
nmental Impact Statement (DEIS) for tpe Twin Falls, Nilner,
Falls, and Star Falls projects, recom~ended that any
e issued for the Milner Project requi~e a minimum bypass
n the 1.6 mile reach below Mi lner Dam!. The public,
tors, the applicant, and the Idaho De¡partmenl of ~a ter
ces (ID\o'R) appr.i sed the 5 lafr tha L re!qui riiig the 1 icenseei:
EXIBl1
CASE NO.IPC~PACKW.IPCDA~c;c;nfA?
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Projec So. 2899-003
6-6-
to mai tain minimum flows below Milner Dam would be inconsistent
with s ate requirements. All of the reservolr storage available
above ~ ilner Dam is committed and the minimu. flow specified by
Idaho tate ~ater Plan (~ater Plan) for the tiver immediately
below ~ ilner Dam is zero cfs. Because the applicants, the
Sorths'de and Twin Falls Canal Companies, are only service
compan' es, ~hich distribute the irrigation water to their
shareh lders, who hold the water rights, req~iring them to
mainta' n a minimum flow below Milner Dam other than zero would
requi r that they release water that Idaho w. ter law has
approp iated to others.
A
of req
to renrights
the prand/orthan t
Water
would
order
T
(\o'a terenviroestabl
accoun
addi tiwho es
of thestoragirrigaleasedrefill
I
ID\.R c
wi thstwater,
throúg
in mee
Snake
T
Alan Rstaff'
avai lacreatifuture
Compan
ter issuing the DEIS, the staff evalu. ted the feasibi 1 i ty
iring any licensees of the proposed S~ake River projects
or lease water on a short-term basis! from upstream water
holders in order to provide flows in the bypass reaches of
jects. Such flows could reduce impacts of the projectsimprove conditions by providing flowsl that are greater
ose that now exist. The staff uses t~e term Comprehens ive
lock (CWB) to refer to the volume of ~ater that a licensee
ave to rent to supplement the available river flow in
o meet the recommended target flows.
e staff identified the Upper Snake \.ater Supply Bank
Bank) as a possible source for acquir~ng flows formental mi tigation and enhancement purposes. The stateshed the ,Water Bank as a convenient m~ans to allow and
for the rental of water by those irr~gators in need of
nal water from those ~ho have excess ~ater. Irrigators
imate that their water storage rightsi would be in excess
r requirements in any year may place ~ portion of their
right in theWater Bank, to be leasep by others, with
ors receiving first priority. Any wa~erthat is not
in any year is lost if all of the ups~ream storage is
d in the following year.
a letter filed with the Commission ~n September 30, 1988~
mmentedon the staff's proposal, sta~ing: "Notnding the appl icant' s increased costs! in obtaining the
it appearst,~hat structured reliance on the Water Bank
the Comprehensive Water Block mechanism can be successfuling prescribed mi tigati ve' flows on the mainstem of thei ver."
e staff discussed the opera tion of the Water Bank wi th
bertson, Supervisor, Hydrology Sectidn, IDWR. It is the
understanding from those discussions that water has been
Ie for lease from the Water Bank in all years since its
n and that, because of increased irr~gation efficiencies,wa ter avai labi 1 i ty likely wi 1 1 increase. Idaho Power
(IPC) has leased water for power generation from the
EXIBI 1
CASE NO. IPC-8
PACKW.IPC
7
Projec No. 2899-003 -, -
\\ater ank in every year since its creation.: It is highlyprobab e that in the future, ~ater will be a~ailable in the \\ater
Bank i excess of i rrigat ion demand, except ~n very bad ~a Leryeals.
Irentalyear f
enhancwaterviolat
purpos
Tlicensprovidstaff,develo
recommreconndevelo
powerh
downst
magni tProjecplant
of spe
the fe
foundplananalyasses
is the staff's opinion that the short-term leasing or
of water that is in excess of the irr~gation demand eachi' purposes such as environmental mi tigation and
ment, would be in the public interest:, would not commi t
torage to a non-agricul tural use, andi therefore ~ould not
the intent for which the water Bank ~as created or the
s for which the upstream storage proj.cts were authorized.
e staff evaluated numerous scenarios ifor requiring in any
issued that mitigation and enhancem~nt flows should be
d in the bypass reach below Milner Dam. In addition, the
recognizing that it might be economi~ally beneficial to
the hydropower potential of the tar~et flows that may be
nded to be released, at Milner Dam, p~rformedissancë-level economic analyses of the benefi ts ofing a powerhouse at Milner Dam, in aadition to. theuse proposed by the applicants to be ilocated 1.6 miles
eam. The preliminary studies showed ¡that depending on the
de of target flows specified in a li~ense for the Milner
, it may be economically beneficial to construct a power
t the dam. The staff, therefore, recommends the inclusion
ial license Article 308, requiring tae licensees to study
sibility of constructing such a powe~ plant, and if it is
o be feasible and economically beneficial, to submit a
r constructing the power plant. The ¡staff's economic
s are discussed in the Economic Evaluation section of thisent.
ection 10(a)(2)(A) of the Federal Power Act (FPA) requires
the C mmission to consider the extent to which a project is
consi tent with federal or state comprehenslve plans for
impro\ ing, developing, or conserv ing a waterway or waterways
affec ed by the project. .
staff reviewed,.he Northwest Power' Planning Council's
North est Conservation and Electric Power Plan (Power Plan) to
deter ine if the project is consistent with: the Power Plan. The
Counc' l' s Power Plan envisions meeting the growing regional
energ requirements in the most economical ~anner wi th
envir nmentally acceptable resources. The Power Plan considers
any e vironmentally acceptable resource tha~ is less expensi ve
than o~l-fueled steam electric generation ~s an acceptable
resou ce for development before the developinent of coal-fueledpower plants (the Council's planned marginail resource).
EXHIBI 1
CASE NO IF'-tPACKW,IPC
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Project ~o. 2899-003
8-8-
Th staff developed Ii fe-cyc Ie cos t s of ~nergy from the
Counci 1 s planned generic coal plant, assumed! to be needed in the
year 20 2, for determining if proposed hydroe~ectric projects
are, co sistent in the long term with the Pow~r Plan, as required
under S ction 10(a)(2)(A) of the FPA. The s~aff assumed that new
coal pi nt generating resources would be req~ired within the
region y the year 2002, based on the need f~r additionalgenerat' ng resources projected for the inves~or-owned uti 1 ities
in the acific Northwest Region, as discussed in the Need for
Power s ction of this assessment.
Th staff found that the life-cycle lev~lized cost of the
project is less, as of its projecte~ on-line date, than
the Ie lized life-cycle cost of the least cdst or marginal longterm al ternati ve, included in the Power Plan.! Therefore, the
projec as proposed is not inconsistent wi th ¡the Council's Power
Plan, d is economically beneficial wi thin the long-term
objecti ves of the Power Plan.
T e staff reviewed the Water Plan and fqund that the
propos d project, both including and excluding the staff's targetflow r commendations, would be consistent wi th the Water Plan,
which equires a minimum flow below Milner dam of zero cfs. The
staff' recommendation for including target flow condi tions in
any Ii ense issued is consistent with the Water Plan. The staff
is not recommending that minimum flows be pr~videù below Milner
dam, b t rather that the licensees should prQvide any additionalwater eeded to -meet the target flows by lea$ing water that is in
excess of irrigation requirements from the W~ter Bank, but only
if ava' lable, and in accordance with the rulès of the Water Bankoperat
T
Idahoand th
Manageproposirriga
e staff reviewed the Idaho Fi sheries ~anagement Plan, the
utdoor Recreation Plan, the Idaho Wat~r Quali ty Stándards,
Department of the Interior's Monument Proposed ResourceentPlan and found that the plans do hot affect the
d project's development or operation wi th respect to
ion, flood control, or nav iga tion.
A
Upperthat'tconfli
review of the Commission' 8 Planning S~atus Report for
nake River Basin and the Hydroelectri~ Site Data Base
ere are no proposed or existing proj~cts that wouldt with the proposed proj ec t .
the
show
Econom c Evaluation
A proposed project is economically beneficial 80 long as its
leveli ed cost is less than the long-term i~velized cost of
altern tive energy to any utility in the region that can beserved by the project.
EXIBI 1
CA NO. 1P-€-9PACKW, IPC
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Projec
Talternmills
energ;)
needed
consumThe st
be reqprojecinvestdiscus
Tdevelo
termsproducmills/produc
paymen
over 5descri
Tappliccondi triverlocate
Table
.:; "
No. 2899-003
9-9-
e s taf f calculates the 50-year proj ected level i zed
ti ve energy cos t in the reg i on in 199 Z to be about 85er kilowatthour (k~h). This is the iévelized unit cost of
from coal-fueled stea~ electric plant$ assumed to be
in the .);ear 2002, and 'the value of displaced fuel
tion in existing coal-fueled steam pl~nts until that time.
ff assumed that new coal plant generating resources would
ired wi thin the region by the year 2002, based upon the
ed need for addi tional generating res9urces, by the
r-owned utilities in the Pacific Nortnwest Region, as
ed in the Need for Power section of this assessment.
e appl icants entered into a contract ~i th IPC for the
ment of power facilities at the Milnet site. ~nder the
f the contract, ¡PC would receive the! total project power
ion and would pay the total project c~sts plus two
wh (escalating 25 percent every 5 yeats) for all energy
d. The applicants would use the escalating energy
, which is equivalent to 3.13 mills/kwh when levelized
years ~ to help offset the costs of r~pairing the dam, as
ed in the Dam Safety section of this ~sses$ment.
e staff evaluated the economics of the 44-M~ project the
nt proposes to construct under variou$ target flow
ons, assumed to be required in the bypass reach of the
etween Mi Iner Dam and the proposed po~erhouse, to be
1.6 miles downstream, as shown in Table 1.
Summary of the generation, leveliz~d net annual
benefi ts, rate of return on investiment (ROI), and
levelized annual revenue to the li~ensee for the
projectt as proposed to be constr~cted by the licensee
and to be operated under various ~i tigation/enhancementbypass-flow scenarios.
Average Levelized Levelized
B pass generation annual annual
f ows (GWh)benefi ts ROI revenues
58 crs year round 154 $4,233,000 18.6"$482 J 400
58 cfs summer,
150 winter 151 $3,995,000 18.2"$4;3,400
200 c round 147 53,665,000 17 . 6"$460,100
300 year round 143 $3,305,000 1 j .0%544 í ,400
300 c
EXIBI 1
CASE NO. IPC-EPACKW.IPC
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i20 cfs winter 134
Project ~o. 2899-003
10-10-
$2,522,000 15.6%$419,400
Th staff performed reconnaissance level feasibility studies
evalua ling the economic benefi ls of installing small uni ts at the
base of Nilner Darn to utilize the flows that would be released atthe da. The potential power faci 1 i ties to be located a t ~ii lner
Darn we sized as shown in Table 2.
Ì',
EX 1
CA NO 1F-EPAKW.IPC
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Project ~o. 2899-003
11-11-
Table 2 !"ii lner Dam hydraulic capaci ty for various environmental
mi tiga lion/enhancement bypass flo,"s.
Bypass flo,"Unit hydraulic capaci t;y
58 cfs year round 50-150 cfs uni t
58 cr summer,150 crs winter 50-150 crs unit
200 cfs year round 200-600 cfs uni t
300 cfs year round 300-900 cfs unit
300 cfs summer,720 cfs winter 300-900 crs unit
Th staff evaluated the economic benefi ts of developing
capaci t. at Milner Dam to utilize the bypass flows as sho,"n inTable 3.
Table 3. Summary of the generation, levelized net annualbenefi ts, ROI, and levelized annual revenue to the
licensee for generating capaci ty installed at Milner
Dam, for various mitigation/enhancement bypass flows.
Average Levelized Levelized
Bypa s generation annual annual
flow , (GWh)Capacity benefits ROI revenues
58 3.8 1 MW ( $46,200)9.5S $11,700
58-150 4.4 1 MW $5,000 11.2S $13,iOO
200 11. 3 3 MW $304,000 16.4%~35, 400
300 13.5 4 MW $304,000 15.2%$42,200
300-;2 cfs 16.2 4 MW $525,500 18.2S S50,iOO
S
the adbenefiregionthat tcapaci
nce the reconnaissance-level feasibili ty studies sho," tha t
ition of capacity at Milner Dam may be economically
ial compared to the alternative cost of energy in theany license issued should include Article 308, requi ring
e licensees study the feasibility of installing generating
y at the dam, and, if the installation is feasible,
EXIBI 1
CA NO. IPC-E
PACK\, IPC
PAGE 61 0182
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Projec ~o. 2899-003
12-12-
requir ng the licensees to submit a plan for developing the
cl:pl:ci y.
T e staff evaluated the~economic benefits of developing the
combin tion of the propòsed project powerhouse, and a power plant
at the dam as shown in Table 4.
Table Summary of levelized annual Qenefits of combined
development of a powerhouse at Hilner Damas well as
the power plant proposed to be developed downstream,
for various mitigation/enhancement bypass flows.
Levelized Levelized
Byp ss Combined Gen.annual annualfloscapaci ty (GWh)benefi ts revenues
58 cfs 44 MW 1/154 $4,233,000 $482,400
58-15 cfs 45 MW 155 $4,238,000 $487,400
200 cfs 47 MW 158 $3,969,000 $494,500
300 cfs 48 MW 156 $3,609,000 5497,700
48 MW 150 53,048,000 5469,500
staff evaluated the amounts and levelized costs of water
applicants would need to lease from the ~ater Bank to
rècommended mitigation/enhancement bypass flows as shown
5.
1/ is scenario is the same as the proposed scenario wi th a
wnstream powerhouse only, since installing a unit at the
m would not be economically beneficial under this bypass
ow.
in Ta
e current cost of water from the Water Bank is $2.50 per
acre- oot per year. In its studies, the staff used a cost of
$4.32 per acre-foot, which is the levelized cost of water over 50
years, assuming that the cost of water would escalate at 5
perce t annually.
Table 5~ Amounts and levelized costs of the CWB needed to be
leased from the Water Bank to meet variousmi tigation/enhancement bypass flows.
EXHIBr1CA NO. IPC-E-9PACKW.lfI
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Project ~o. 2899-003
13-13-
ypass Storage required Levelized
lows (acre-feet)average annual cost
-8 cfs 3,586'$15,500
58 -150 cfs 3,586 $15,500
200 cfs 11,246 $48,600
300 cfs 22,729 $98,200
3 cfs 22,729 $98,200
T e staff evaluated the net annual benefits of the project
includ' ng the 'projected cost the CWB water for various
mi tiga ion/enhancement bypass flows, as shown in Table 6.
Table Summary of the levelized net annual benefits of the
project, and combined project (including a power plant
at the dam) for various mi tigation/enhancement bypass
flow requirements including the levelized annual cost
of the CWB.
Proposed Combinedprojectproject
Bypass lev.annual lev.annual
flows benefi ts benefits
58 cfs year round $4,217,500 $4',217,500
58 crs summer,
150 cfs winter $3,979,500 $4,222,500
200 crs year round $3,616,400 $3,920,400
300 cfs year round $3,206,800 $3,510,800
300 cfs summer,
720 cfs winter $2,423,800 $2,949,800
I order to preserve the high-flow-condi tion kayaking
opport ni ties that occur in the April-May period in the bypass
EXHlBl1CA NO, IPC-EPACKW,IPC
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Project No. 2899-003
14-14-
reach 0 the river below Milner Dam, the environmental staff
recomme ds requiring the main powerhouse to be shut down duringdayligh hours in the April-May period, for the equivalent of
eight f II-load hours of operation (4000 cfs) for eight days, in
accorda ce with proposed license Article 413. A shutdown of the
main po er plant during the spring would reduce the projectgenerat' on by 42, 000 k~h for each hour of shutdown. The total
reducti n in project generation for the equi valent of 64 hours of
full-Io d shut down is 2,688,000 k~h. At the regional levelized
energy alue of 85 mills/kWh, the shutdown would reduce the
project benefits by approximately $228,000 annually. Theshutdow would reduce the project generation and therefore the
that the licensees would receive under the powercontract wi th IPC. The levelized value of the lost
to the licensees over the license period would be
approxi a tely $8,400 annually.
net annual benefi ts of the project including the
d cost of the spring bypass flow for kayaking under and
other'various mi tigation/enhancement bypass flows, and
nues to be received by the licensees are shown in.., .
Table i. Summary of the licensees' levelized annual revenues,and the level i zed net annual benefits of the project as
proposed, and the combined project (including a powerplant -at the dam) for various water quality and fisherymi tigation/enhancement bypass flow requirements,
including the levelized annual cost of the CWB, and the
cost of plant shutdown for kayaking miti~ation.
.
Proposed Proposed Combined Combined
~:a"'~project project project project
By ass lev.annual licensee lev.annual licensee
fl ws benefits revenues benefi ts revenues
58 cfs year round $3,989,500 $474, 000 $3,989,500 $474,000
58 cfs summer,
150 cf winter $3,751,500 5465,000 $3,994,500 $4;9,000
200 cf year round $3,388,400 $451,700 $3,692,400 $486,100
300 cf )"ear round $2,978,800 $'l39,000 $3,282,800 $489,300
300 cf summer,
ï20 cf winter $2,195,800 $411,000 $2,721,800 5461,100
EXIBIT'
CASE NO. IPC-E
PACKW, IPC
PAGE 64 Of 62
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Project ~o. 2899-003
15-15-
T
develo
the prinstalunder
e benefi ts and revenues for the combined project
ent scenario, as shown in on Table ï., is the same as for
posed project, wi th a downstream powerhouse only, because
ing a unit at the dam would not be economically beneficial58-cfs bypass flow.
T e levelized net annual benefits and revenues of the
projec to the licensees and IPC under the purchase power
contra t between the two with the mi tigation/enhancement
provis'ons discussed herein are summarized in Table 8 (withoutthe ge era t ing uni tat the dam) and Table 9 (wi th the generating
uni t a the dam).
Table Summary of levelized net annual benefits and revenues
to the licensees and IPC wi th mi tigation/enhancement
provisions without a generating uni t at the dam.
Total roject Benefi ts
or Rev nues as proposed Project
ToLicensees
To
IPC
58 cfs Summer ~
150 cf Winter $3,979,500 $473,400 $3,506,100
Benefi ts or
s for Proposals
Flow 330,000 13,300 316,700
\\ater Bank Purchase 33,100 0 33,100
8-day Kayaking Flows 228,000 8,400 219,600
Total Mi tigation Costs 591,100 21,700 569,400
Total Project Benefi ts
or Re enues as f-ti tigated $3,388,400 $451,700 $2,936,700
EXBI.,CASE NOlP~PACKW, IPC
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Projec ~o. 2899-003
16-16-
Summary of levelized net annual benefi ts and revenues
to the licensees and IPC ~i th mi tigation/enhancement
provisions ~ith a generating unit at the dam.
Table
Total roject Benefi ts
or Rev nues as proposed Project To
Licensees
To
IPC
58 cfs Summer l
150 cf Winter $3,979,500 $473,400 $3,506,100
Loss 0 Benefi ts or
Revenu s for Proposals
200 cf Bypass Flow 26,000 (21,100)4 i , 100
Water ank Purchase 33,100 0 33,100
8-day 'ayakingFlows 228,000 8,400 219,600
Total i tigation Costs 287 l 100 (12,700)299,900
Total roject Benefits
or Rev nues as Hi tigated $3,692,400 $486,100 $3,206,300
all ,cathe le
econointo
propo
cause the economic studies for the proposed project, for
es evaluated, show that the project power costs less than
elized alternative regional cost of power, the project is
ically beneficial. Because the applicants have entered
contract to sell all of the project power to IPC l the
ed project is financially feasible.
he applicants stated that the primary purpose of proposing
this roject is to provide revenues to aid in paying for the dam
rehab'lilalion, previously discussed in the Project Safely
secti n of this assessment. In 1984, the cost of rehabilitating
Milne Dam was projected to be approximately $7 million. The
staff estimates the minimum long-term annual carrying charges of
EXIBI 1
CASE NO, 1P-lPACKW.IPC
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Project No. 2899-003
1 ;
-1 Î-
financi g the work to be approximately $íOO, 000. The annual
revenu s that the applicant would receive from IPC under the
power urchase contract are projected to range from about
S411,0 0 to about S489,000 for the various bypass-flow scenarios
evalua ed, so that the applicants would be required to provide
from a out $200,000 up to about $300,000 of the annual debt
servic from irrigation revenues.
Need f r power
Tdraftregion
2000 wrespec
cooperincludcould
are codistri
Updatederici
not ocpercen
load g
e Northwest Power Planning Council's (~PPC) August 1988
pdate of its 1986 Northwest Power Plan (Update) shows
1 resource derici ts in the NPPC area in about 1992 and
th medium-high and medium-low load growth scenarios,
ively. A medium load growth scenario, developedti vely wi th the Bonneville Power Administration (BPA) and
d in the Update but not in the Update resource portfolios,roduce def ici ts about 1996. All three of these forecastssidered to be equally probable in the probabili ty
ution af load uncertainty assumed for development of the
power plan. The high load projection could produce
s by 1991, and under the low load scenario deficits wouldur before 2010. The probabili ty distribution assumes a ;6
probabili ty that load will equal or exceed the medium-lowowth scenario.
e 1988 projections of the Pacific Northwest Utili ties
Confe ence Committee (PNUCC) project that regional resource
defic'ts would occur in about 1994-1995 under medium load growth
as sum tions.
could
NPPC
PNUCC
mediu
purchli ttlcoord
the, p
to pehighe
an unsigniareareso
ownecoul
and
as e
PPC, BPA, AND PNUCC all acknowledge that resource defici ts
occur on the investor-owned utility (iOU) systems in the
rea before occurring in the NPPC area as a whole. The
shows iou defici ts occurring as early as 1992-1993 under
load growth assumptions and currently planned power
ses from BPA. The NPPC Update states that there has been
evidence to date that the NPPC area is moving toward
nated resour~e development (the primary theme upon which
an is formulated). Public utilities in the area are saidcei ve the BPA future as being uncertain and to seek adegree of independence from BPA. This same perception of
ertain future has di scouraged lOU's from placing any
icant amounts of load on the BPA system. Many of NPPC' s
igh load growth areas are served by iOU' 8 that have fewer
c~s to meet their power requirements than the publiclysystems. The absence of area wide coordinated planning
cause resource defici ts on the iou systems as early a~ 1989
need for additional generating resources on the iOC systems
rly as 1993, under a medium-high load scenario.
EXHIBIT'
CASE NO. IPC~..
PACKWOO,lfI
PAGE 61 Of 82
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Projec ~o. 2899-003
18-18-
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B
the i\P
h~'dro
ui:e fulalso i
adhereprolec
propos
requi l'
sed on these predictions, a need for power could exist inC area an;y time from t.he eai.l~' 1990's to late 1990's, and
esources coming on-line in the early 1990's could be
in meeting a small part of that need for power. ~PPC has
enlified 630 average MW of new hydro power potential ihat
to development constraints imposed by the federal stream
ion program and the SPPC protected areas program. The
d project could provide a small portion of this hydro
men t .
Al tern lives to the Proposed Project
B cause the applicants are not electric utilities, theava i la Ie options are to construct or not construct the project.
If the license is not issued, the project would not be
constr cled~ and the power that would have been developed from a
renewa Ie resource would be lost and eventually would have to be
provid d using nonrenewable fuels.
the lícense, is not issued, the applicants will not
power generation revenues, and would therefore have to
the total costs for the Milner Dam rehabili tation from
i on revenues.
e following sections of Exhibit A and Exhibi t F drawings,
filed uly 2ï, 1988, conform to the Commission's rules and
regul tions and should be approved and made a part of thelicen
Exhib't A - Sectign III Turbine and Generator, Section iv
Electrical Transmission, and Section V AccessoryEquipment.
Exhib't F -
Exhib t FERC No.Title
F- i 2899-1 Key and General Plansand Canal Sections
F-2 2899-2 Canal and Forebay
Embankment Sections
F-3 2899-3 Headworks and Was teway
Plans, Sections &
Detai s
F-4 2899-4 Control Struct.ure
Plan and Sections
EXHIBIT 1
CASE NO. IPC-€
PACKW, IPCO
D.6n.i: AA () R?
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Project t\o.2899-003
F-5 2899-5
F-6 2899-6
Sections
F-Î 2899-7
F-8 2899-8
F-10 2899-10
F-ll 2899-11
F-12 2899-12
.::"
19-19-
Intake Structure
Plan and Section
Powerhouse and Vicinity
Plan, Profile and Sections
Powerhouse Plans
Powerhouse Sections
Milner Dam RehabilitationPlan
New Spillway
Plan and Section
Dam Embankment Sections
EXIBI 1
CASE NO. IPC-€
PACKWOO. IPC
PAGE 69 Of 82
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Form L-2
(Revised October, :975)
FEDERA ENERGY 'REGULATUKX ~VMMi~~iUN
TERMS AND CONDITIONS OF LICENSE FOR
UNCONSTRUCTED ~~JOR PROJECT
AFFECTING LADS OF THE UNITED STATES
Article 1. The entire project, as described in this
order of the Commission, shall be subject to all of theprovisions, terms, and conditions of the license.
Article 2. No substantial change shall be made in
the maps, plans, specifications, and statements describedanci ciesignateci aa exhibits and approved by the Commission
in its order as a part of the license until such change
shall have been approved by the Commission: Provided,
however, That if the Licensee or the Commission deems
it necessary or desirable that said approved exhibits,
or any of them, be changed, there shall be submitted
to the Commission for approval a revised, or additional
exhibit or exhibits covering the proposed changes which,
upon approval by the Commssion, shall become a part of
the license and shall supersede, in whole or in part, such
exhibit or exhibits theretofore made a part of the license
as may be specified by the Commssion.~.
Article 3. The project works shall be constructed
in substantial conformity with the approved exhibits
referred to in Article 2 herein or' aa changed in accord-
ance with the provisions of said article. Except when
emergency shall require for the protection of navigation,
life, health, or property, there shall not be made without
prior approval of the Commission any substantial alteration
or addition not in conformity with the approved plans to any
dam or other project works under the license or any sub-
stantial use of project lands and waters not authorized
herein; and any emergency alteration, addition, or us.
so made shall thereafter be subject to such modification
and change as the Commission may direct. Minor changes in proje~~
works, or in uses of project lands and waters, or divergence
from such approved exhibits mA~ b. made if such changes will
not result in a decrease in erfl~iency, in a material increase in
cost, in an adverse environmental impact, or in impairment of
the general scheme of development; but any of ~uch minor change 5
made without the prior approval of the Commission ,which in its
judgment have produced or will produce any of such results,
shall be subject to such alteration as the Commission maydirect.
EXHIBIT 1
CASE NO. IPC-EPACKW, IPC
DA~C.7n rt A?
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Upon the completion of the proj ect, or a t such other
time as the Commission ~ay direct i the ~icensee shall sUbmit
to the Commission for approval revised exhibits insofar as
necessary to show any di verger-ce from or variations in the
project area and project boundary as finally located Or in
the project works as actually cons tructed when compared wi th
the area and boundary shown and the works described in the
license or in the exhibits approved by the Commission, together
with a statement in writing setting forth the reasons which
in the opinion of the Licensee necessitated or justified
variation in or divergence from the approved exhibits. Such
revised exhibi ts shall, if and when approved by the CO~isSion i
be made a part of the license under the provisions of Article
2 hereof.
Article 4. The construction, operation, and main-
tenance of the project and any work incidental to addi-
tions or alterations shall be Subject to the inspection
and supervision of the Regional Engineer, of the
Commission, in the reqion wherein the project is located,
or of such other officer or agent as the COmmssion 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 program of inspection by the Licensee that will
provide for an adequate and qualified inspection force
for construction of the project and for any Subsequent
alterations to the project. Construction of the project
works or any feature or alteration thereof shall not be
initiated until the program of inspection for the project
Works or any Such feature thereot has been approved by
said repreSentative. The Licensee shall also furnish
to said rClresentative such further informtion ai he may
require concernin9 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 thereof as said representative
may reasonably specify, and shall notify him promptly
'in writing of any suspension of work tor a period of
more than one week, and of its resumption and completion.
The Licensee shall, allow said representative and other
officers or employees of the United States, showing proper
credentials, free and unrestricted accesJ~~(:)" through, and
across the project lands and project works in the performance
of their official duties. The Licensee shall comply with
such rules and regulations of general or special applicability
as the Commission may prescribe from time to time for the
protection of life, health, or property.
EXHIBI 1CASE NO.IP~
PACKW, "'CO
PAGE 71 Of 62
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Article 5. The Licensee, wi thin five years from the date
of issuance of the license, shall acquire title in fee or the
right to use in perpetuity all lands, other than lands of the
Cnited States, necessary or appropriate for the construction,
maintenance, and operation of the project. The Licensee or itssuccessors and assigns shall, during the period of the license,
retain the possession of all project property covered by the
license aa issued or .a later amended, includini the project
area, the proj ect works, and all franchises, easements, water
rights, and rights of occupancy and use; and none of such
properties shall be voluntarily sold, leased, transferred,
abandoned, or otherwise disposed of without the prior written
approval of the Commission, except that the Licensee may lease
or otherwise dispose of interests in project lands or property
without specific written approval of the Commssion pursuant
to the then current regulations of the Commission. The
provisions of this article are not intended to prevent the
abandonment or the retirement from service of structures,
equipment, or other project work. in connection with replace-
ments thereof when they become obsolete, inadequate, or
inefficient for further service due to wear and tear; and
mortgage Or trust deeds or judicial sales made thereunder,
or tax sales, shall not be deemed voluntary transfers within
the meaning of this article.
Article 6. In the event the project i. taken over
by the United States upon the termination of the license
as provided in Section 14 of the Federal Power Act, or is
transferred to a new licensee or to a non-power licensee
under the provisions of Section LS of said Act, the Licensee,
its successors and a.signs shall be responsible for, and shall
make good any defect of title to, or of right pf occupancy
and use in, any of such project property that i is necessary
or appropriate or valuable and serviceable in the maintenanceand operation of the project, and shall pay a discharge, or
shall assum responsibility for payment and discharge of, all
liens or encumrances upon the project or project property
created by the Licensee or created or incurre after the
issuance of the license: Provided, That the rovisions ofthis article are not intended to require the icensee, for ":n...',,
the purpose of transferring the project to th United States
or to a new licensee, to acquire any differen title to, or
right of occupancy and use in, any of such pr ject property
than was necessary to acquire for its own pur~of'l!~ as the
Licen'see.
EXIBI 1
CASE NO. IPC-E
PACKWOO, IPe
PAGE 72 Of 82
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Article 7. The actual legitimate original cost of
the project, and of any addition thereto or bet ter~ent
thereof, shall be determined by the Corr~ission. in accordance
wi th the Federal Power Act and the Corr~ission' s Rules andRegulations thereunder.
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Article e. The Licensee shall instal and thereafter
maintain gages and stream-gaging stations or the purpose
of determining the stage and flow of the s re~ or streamson which the pro j ect is located, the amount of water heldin and withdrawn from storaqe, and the eff~cti\1e head on
the turbines: shall provide for the requir d readinq of
such qaqes and for the adequte ratinq of uch station
i :
and shall install and maintain standard me era adequate for
the determination of the amount of electri enerqy qeneratedby the project works. . The numer, charact r ,and locationof c;aqes , meters, or other-'measurinq devic . ,and the
method of operation thereof, shall at all imes be satis-
factory to the Commission or its authorize representative.
The Commission reserves the riqht, after n tiçe and oppor-tuni ty for hear inq, to require such al tera ions in thenumer, character, and location of qaqes, eters, or
other meaiuring devices, and the method 0 o~ration thereof,
ai are necessary to secure adequate dete inationi. The
installation of gages, the rating of said stream or streams,
and the determination of the flow thereof, ih.ll be under the
supervision of, or in cooperation with, t e Oistrict Engineer
of the United State. Geological Survey ha ingi charge Qf
stream-gaging operations in the region of the project, and
the Licens.. shall advance to the united tates Geological
Survey the amount of funds estimated to b n.cessary for such
supervision, or cooperation for such peri dsas may be mutuallyagreed upon. Th. Licensee shall keep ace rate and sufficient
records of the foregoing determinations t the satisfaction
of the Commission, and shall make return f such records
annually at such time and in such form as the Commissionmay prescribe. I .
Article 9. The Licensee shall, after notice and
opportunity for hearing, install additio al çapacity or make
other change. in the project as directed by the Commission,
to the extent that it is economically so d and in the
public interest to do so.
EXIBI'CAE NO. IPC~
PACKW, IfI
PAGE 73 Of 82
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Article 10. The Lic:n:e: shall, after notlee .ndopportunity for hearing, coor¿inate the operation o'f the
project, electrically and hydraulically, with such bther
projects or power systems and in such manner as the
Co~mission may direct in the interest of power and other
beneficial public uses of water resources, and on such
conditions concerning the equitable sharing of benefits
by the Licensee as the Commission may order.
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Article 11. Whenever the Licensee is directlybenefited by the construction work of another licensee,
a permittee, or the United States on a storage reservoir
or other headwater improvement, the Licensee shall reimburse
the owner of the headwater improvement for such part of the
annual charges for interest, maintenance, and depreciation
thereof as the Commission shall determine to be equitable,
and shall pay to the United States the cost of makinq such
determination as fixed by the Commission. For benefits
provided by a storage reservoir or other headwater improve-
ment of the United States, the Licensee shall pay to the
Commission the amounts for which it is billed from time
to time for such headwater benefits and for the cost of
making the determinations pursuant to the then current
regulations of the Commssion under the Federal Power Act.
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Article 12. 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 Comm..ion may prescribe for the protection of life,
heal th, and property, and in the interest of the fullest
practieable eonservation and utilization of such waters
for power purposes and for other benefieial publie uses,
including recreational purse., and the Licensee shall
release water from the projeet reservoir at such rate in
eubic feet per seeond, or sueh volume in acre-feet per
specified period of time, as the Commssion may preseribe
for. ~~e purposes hereinbefore mentioned.
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..Artiele 13. On the application of any pérson~
association, corporation, Federal ageney, State or
munieipality, the Licensee shall permit sueh reasonable
use of its reservoir or other projeet properties, ineluding
works" lands and water rights, or parts thereof, as may
be ordered by the Commission, after notiee and opportunity
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EXIBI'
CASE NO. IPe-E
PACKWOO, IPeO
PAGE 74 Of 82
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Article 16. Whenever the United States shall desire,
in connection with the project, to construct fish and
wildlife facilities or to improve the existing fish and
wildlife facilities at its own exoense, the Licensee shall
permit the United States or its dèsignated agency to use,
free of cost, such of the Licensee's lands and interests in
lands, reservoirs, waterways and project works as may be
reasonably required to com~ete such facilities or such
improvements thereof. In addi tion, after notice and
opportuni ty for hearing, the Licensee shall modify the
project operation as may be reasonably prescribed by the
Commission in order to permit the maintenance and operation
of the fish and wildlife facilities eonstructed or improved
by the United States under the provisions of this article.
Th1sarticle shall not be interpreted to place any obligation
on the United States to construct or improve fish and wild-
life facilities or to relieve the Licensee of any obligation
under this license.
Article 17. The Licensee shall construct, maintain,
and operate, or shall arrange for the construction, main-
tenance, and operation of such reasonable recreational
facilities, including modifications thereto, such as
access roads, wharves, launching ramps, beaches, picnic
and camping areas, sanitary facilities, and' utilities,
giving consideration to the needs of the physically
handicapped, and shall comply with such reasonable modi-
fications of the project, as may be prescribed here-
after by the Commission durinq the term of this license
upon it. ow motion or upon the recommendation of the
Secretary of the Interior or other interested Federal
or State agencies, after notice and opportunity for hearing.
Article 18. So far a. i. consistent with proper
operation of the project, the Licensee shall allow
the public free access, to a reasonable extent, to
project waters and adjacent proje,ct lands owned by the
Licensee for the purpose of full public utilization of
such land. and waters for navigation and for outdoor
recreational purposes, including fishing and hunting:
Provided, That the Licensee may reserve from public
access such portions of the project waters, adjacent
lands, and projeet facilities as may be necessary for
the ,protection of life, health, and property.
EXIBI 1
CASE NO. IPC-EPACKW, IPC
PAr.F 7fi Of II?
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Article 19. In the constr~ction, maintenance, or
operation of the project, the :icensee shall be responsible
for, and shall take reasonable measures to prevent, soil
erosion on lands adjacent to ~treams or other waters,
stream sedimer.tation, and any form of water or air pollution.
The Commission, upon request or upon its own motion, may
order the Licensee to take such measures as the Commission
finds to be necessary for these purposes, after notice
and opportunity for hearing.
Article 20. The Licensee shall consult with the
appropr~ate State and Federal agencies and, within one
year of the date of issuance of this license, shall sub-
mit for Commission approval a plan for clearing the reser-
voir area. Further, the Licensee shall clear and keep clear
to an adequate width lands along open conduits and shall
dispose of all temporary structures, unused timber, brush,
refuse, or other material unnecessary for the purposes of the
project which results from the clearing of lands or from the
maintenance or alteration of the project works. In addition,
all trees along the periphery of project reservoirs which may
die~during operations of the project shall be removed. upon
approval of the clearing plan all clearing of the lands and
disposal of the unnecessary material shall be done with due
diligence and to the satisfaction of the authorized represen-
tative of the Commisiion and in accordance with appropriate
Federal, State, and loeal statutes and regulations.
Artiele 21. Timber on lands of the United States cut,
used, or destroyed in the construction and maintenanee of
the projeet works, Or in the clearing of said landi, shall
be paid for, and the resulting slash and debris disposed
of, in aeeordanee with the requirements of the agency ofthe United States having jurisdiction over said lands.
Payment for merchantable timber ihall be at current stump-
age rates, and payment for young growth timber below
merchantable size shall be at current damage appraisalval ues. However, the ageney of the United States having
jurisdiction may sell or dispose of the merchantable
timber to others than the Lieensee: Provided, That timber
so sold or disposed of shall be eut ana removed from the
area prior to, or without undue interferenee with, elearing
operations of the Lieensee and in eoordination with the
Licensee' s project construction sehedules. Sueh sale or
disposal to others shall not relieve the Lieensee of
responsibility for the clearing and disposal of all51ashand debris from project lands.
EXHIBI 1
CASE NO. Ifl-€PACKW,IPC
PAGEnOf62
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Article 22. The Licensee shall do everything rea-
sonably wi thin its power, and shall require its employees,
con tractors, and employees of contractors to do every-
thing reasonably within their power, both independently
and upon the request of officers of the agency concerned,
to prevent, to make advance preparations for suppression of,
and to suppress fires on the lands to be occupied or usedunder the license. The Licensee shall be liable for and shal i
pay the costs incurred by the United States in suppressing
fires caused from the construction, operation, or main-
tenance of the project works or of the works appurtenantor accessory thereto under the license. _,,;., _.'
Article 23. The Licensee shall interpose no ob-
jection to, and shall in no way prevent, the use by the
agency of the ~ni ted States having jurisdic~loD over the
lands of the United States affected, or by persons or
corporatio,ns occupying lands of the United States under
permit, of water for fire suppression from any stream,
conduit, or body of water, natural or artificial, used
by the Licensee in the operation of the project works
covered by the license, or the use by said parties of
water for sanitary and domestic purposes from any
stream, conduit, or body of water, natural or artificial,
used by the Licensee in the operation of the projectworks covered by the 1 icense .
Article 24. The Licensee shall be liable for injury to,
or destruction of, any building., bridges, road., trails,
lands, or other property of the United States, occasioned
by the construction, maintenance, or operation of the
project works or of the works appurtenant or accessory
thereto under the licen.e. Arrangements to meet such
liability, either by compensation for such injury or
destruction, or by reconstruction or repair of damaged
property, or otherwise, shall be made with the appropriate
department or agency of the United State..
Article 2S. The Licensee shall allow any agency of
the United States"without charge, to construct or permit
to be constructed on, through, and across those project
'~lands which are lands of the United States such conduits,
chutes, ditches, railroads, roads, trails, telephone and
power lines, and other routes or means of transportation
and communication as are not inconsistent with the enjoyment
EXI8I1
CASE NO.IPC~
PACKW,IPeO
PAGE 78 Of 82
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of said lands by the Licensee for the purposes of the license.
This license shall not be construed as conferring upon
the Licensee any right of use, occupancy, or enjoyment
of the lands of the United States other than for the
construction, operation, and maintenance of the project
as stated in the license.
Article 26. In the construction and maintenance of
the project, tRe location and standards of roads and
trails on lands of the United States and other uses
of lands of the United States, including the location
and CO~dition of quarries, borrow pits, and spoil dis-
posal ~reas, shall be subject to the approval of the
department or agency of the United States having supervisionover t~e lands involved.
~ticle 27. The Licensee shall make provision, or
shaii-oear the reasonable coat, .a determined by the
agency I of the United States affeeted, of making provisionfor avoiding inductive interference between any project
transmlssion line or other projeet faeility eonstructed,
operatld, or maintained under the license, and any radio
installation, telephone line, or other communication
facility installed or constructed before or after con-
structlon of such project transmission line or other
project facility and owned, operated, or used by such
agency lof the United States in administering the lanès
unde~ lts jurisdiction.
Atticle 28. The Licensee shall make use of the Commission's
guidel~nes ana other recognized guidelines for treatment of
transmission line rights-of-way, and shall elear such portions
of tra~smi,sion line rights-of-way across lands of the UnitedStates :ias are designated by the officer of the United States
in cha~ge of the lands: shall keep the areas so designated
clear af new growth, all refuse, and inflammable material
to thelsatisfaetion of such officer: shall trim all branches
of tre.s in eontact with or liable to eontact the trans-
,mlssio~ lin..'.".hall cut and remove all dead or leaning
-trees Which might fall in contact with the transmissionlines: 1and shall take such other precautions against
fire a. may be required by such officer. No fires for
the b~ning of waste material shall be set except withthe p~,:'or written consent of the officer of the United
States iin charge of the lands as to time and place.
EXIBr1CA NO. 1P-€PAKW.IPC
PAGE 79 Of 82
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Arti le 29. The Licensee shall cooperate with the
Unite St tes 1n the disposal by the United States, under
the Act 0' July 31, 1947, 61 Stat. 681, as amended (30 U.S.C.
sec. 601, iet .e~.), of mineral and vegetative materials fror.lands ofñë Uni.ted States occupied by the project or any
part ther of: Provided, That such disposal has been
authorize by the Commission and that it does not
unreasona ,ly interfere with the occupancy of such lands
by the Liensee for the purposes of the license: Provided
further, ~at in the event of disagreement, any quest10n of
unreasona ile interference shall be determined by the
Commission! after notice and opportunity for hearinq.
Articie 30. If the Licensee shall cause or suffer
essentia roject property to be removed or destroyed
or to beco e unfit for use, without adequate replacement,
or shall a andon or discontinue good faith operation of
the projec or refuse or neglect to comply with the
terms of t e license and the lawful orders of the
Co~mission mailed to the record address of the Licensee
or its age t, the Commssion will deem it to be the
intent of he Licensee to surrender the license. The
Commission, after notice and opportunity for hearing,
may requir the Licensee to remove any or all structures,
equipment nd power lines within the project boundary
and to tak any such other action necessary to restore
the projec waters, lands, and facilities remaininq
within the project boundary to a condition satisfactory
to the Uni ed States agency having jurisdiction over
its lands r the Commission's authorized representative,
as appropr ate, or' to provide for the continued operation
and mainte ance of nonpower facilities and fulfill such
other obli ations under the license as the Commission
may prescr be. In addition, the Commission in its
discretion after notice and opportunity for h..ring,
may also a ree to the surrender of the license when theCommission for the reasons recited herein, deems it to
be the int nt of the Licensee to surrender the license.
Artiesuccessorswhich the
the United
of maintaiabsolutely
unless the
to the the
license un
. 31. The right of the Licensee and of its
an assigns to use or occupy water. over
,nited States has jurisdiction, Or lands of
States under the license, for the purpose
ing the project works or otherwise, shall
cease at the end of the license period,
Licensee has obtained a new license pursuant
existing laws and regulations, or an annual
er the terms and conditions of this license.
EXIBI 1
CASE NO IPC-EPACKW.lfI
PAGE 80 Of 62
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Article 32. The terms and condi tiona expressly
et forth in the license shall not be construed as
mpairing any terms and conditions of the Federal Power
ct which are not expressly set forth herein.
EXIBI 1
CA NO. IPC-EPACII. IfI
PAGE 81 Of 82
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Twin Fall Canal Company
North Sid Canal Company, Ltd.
Project No. 2899-003
(Issued December 15, 1985)
MOLER, Co issioner, concurring:
I su ;port the Commission's expedited action issuing the
license i . this proceeding. I do so principally because of theneed to a it quickly so that the applicants will be able to obtain
the funds Inecessary to strengthen the dam.
I am iaware that there are important water law issues
embodied iin this case. The order is consistent with the
Commissio i' sprior actions interpreting its statutory respon-
sibilitiesi under Section 10(a) (1) of the FPA 1/, however, it
represents; the first time I have particip.ted in a caseinvolving ~his particular matter of statutory interpretation.
Ordinaril I would have asked to delay this case until I had alengthier ¡opportunity to review the legal issues presented. Inthis case,! however, the public safety issue argues against adelay.
I woulld note that the United states Court of Appeals for
the Ninth ~ircuit is 'eurrently considering a case involving the
Commissionl' s interpretation of, Section 10 (a) (1). V
i awa!it the results of that litigation with interest. I do
not want y participation in this case to indicate that I have
come to a definitive legal conclusion on the matter.
~ Jd~" Ù\s& A~"izabeth Anne Moler 9
Commissioner
1/ s.,,:. ., Horseshoe Bend Hydroelectric Company, 42 FERC , 61,071
1/
EXBI ,
CA NO ll-€PAKW, lfl
PAGE 82 Of 62
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BEFOR Tl
IDAH PULI UTITIES COMSION
CASE NO.IPC-E-908
IDAH POWE COlAN
EXIT 2
.... IXMII.
Idaho Public Utilities Commission
Office of the Secretary
RECEIVED
SEP 24 1990
Boise, ldaho
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CO'r'l
AGREEMENT REGARDING THE OWNERSHIP, CONSTRUCTION,
OPERATION AND MAINTENANCE
OF
~HE MILNER HYDROELECTRIC PROJECT (FERC NO. 2899)
BY AND BETWEEN
THE TWIN FALLS CANAL COMPANY,
NORTHSIDE CANAL COMPANY, LIMITED
AND
IDAHO POWER COMPANY
EXIBI 2CA NO 1f-EPACKWN,lP
PAGE 1 OF 70
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TABLE OF CONTENTS
Subject Page
Recitals.......1
ARTICLE I
DEFINITIONS
Defi nit ions. . . . . . . .. ... .. . .. .. . . . ......... . . . .. . . . . .. . . .... ....
Additional Genetation Faeil ities...............................
4
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6
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,Agreem.e.nt.. . . . . . l . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Agreement .No. 1 ¡ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Ameri can Fa 11 s Reservoi r Di strict No.2.......................
Annual Mitigati~n Expense Budget...............................
Annual MitigatiGn Expenses.....................................
Authori zed Representat i ves. . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . .
Bypass Flows... f . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Canal Cempan i es~ . . . . . . . . . . . . ~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Cana 1 Company A~nua 1 Mi t i gat i on Expenses.......................
Canal Company C*pital ized
Mitigation Cast Advances....................................
Cana 1 Company Construction Advances............................
Capital ized Construction Advance Interest......................
Capi ta 1 i zed Con$truct i on Debt Interest.........................
Capital ized Mitigation Cost Budget.............................
Capital ized Mitigation Costs...................................
Commerci a 1 Oper4 t ion. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commission..... ~.................. .'............................
Const ructi on Buqget............................................
Canst ruct ; on Contractor........................................
Construct; on De~t..............................................
Const ruct i on Management Agreement..............................
Construct ; onMa~ager. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Costs Q~Constr~ct ion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Deb~ Servi ~e Ch4rge............................................
Design Engineer~...............................................
Equ; pment Supp 1 ter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Estimated Campl etion Date......................................
February 7, 198~ Agreement.....................................
Guaranty. . . . . . . J . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I ncent i ve Raya 1 ty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Incentive Royalty Calculation Period...........................
lender. . . . . .'. . . J . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .i
Leased Hi t i gat; on Water........................................
Leased Mi t i gat i qn Water Costs..................................
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L i cens.e. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
License year..................................................
Milner Dam............................................. .'.......
Milner Dam Rehabilitation Project.............................
Hi 1 ner Gage....................................................
Ne.t Benef; ts. . . . .0. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
North Side Canal Company......................................
Original T.erm.................................................Parties...................................................... .
Post Project Comp 1 et i on Date Interest.........................
Power Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Power Pl ant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Pre- Li cense Advances..........................................
Proj ect . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . .
Proj ect Camp let i on Date.......................................
Prudent Ut i 1 i ty Pract ices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Renewal Term..................................................
Royal ty.. .. .... . . ... . . . . .. .. . . . . .. .... .. . . . . . . . .. ... . ...... ...
Short Term Borrow; ng Cost.....................................
Target Flows..................................................
Technical Service Agreement...................................
lota 1 Flows....................................................
Twi n Fa 11 s Canal Company......................................
Uncontrol1 abl e Forces.........................................
Water Perm; t. . . . . . . . . . . . . .-. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE II
REPRESENTATIONS
2.1
2.2
2.3
2.4
2.5
General Representations.......................................
Representat ions of the Power Company..........................
Representat ions of the Canal Compan i es. . . . . . . . . . . . . . . . . . . . . . . .
Representat ions of the North Si de Canal Company...............
Representations of the Twin Falls Canal Company....... ........
ARTICLE III
LICENSE
3.1
3.2
3.3
3.4
3.5
3.6
License.......................................................
Comp 1 i ance wi th the license...................................
Pre- License Advances..........................................
License Responsibilities............................... ........
Renewal of Li cense. . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .
Failure to Renew License......................................
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11
11
11
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12
.12
12
12
12
13
14
15
16
17
19
19
20
20
21
22
EXIBI 2
CASE NO. 11'-E~,IP
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4.1
4.2
4.3
4.4
4.5
4.6
4.7
4.8
4.9
4.10
4.11
4.12
4.13
4.14
5.1
5.2
5.3
5.4
5.5
5.6
5.7
5J~
r: -;",.. "15.10
5.11
ARTICLE iv
THE PROJECT'
Ownershi p of the Project...................................... 22
Ownership of Milner Dam....................................... 22
Construction and Ownership of Power Plant..................... 23
Acqui sit i on of the Project; Estimated Project Comp 1 et ion
Date; Project Completion Date............................... 24
Mi 1 ner Dam Rehabi 1 i tat i on Project; Construction
Budget; Canal Company Construction Advances................. 25
Capital ized Mitigation Costs;
Capitalized Mitigation Cost Budget.......................... 26
Annual Mitigation Expenses; Annual Mitigation
Expense Budget.............................................. 27
Royalty and Incentive Royalty................................. 27
Leased Mitigation Water......... .-............................. 28
Additional Generation Facil ities.............................. 28
Opt i on of Canal Compan i es - Deregul atedSal e of Energy............................................ ~ . 29
Termi nat i on of Deregul ated Sale of Energy..................... 29
Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ,. . . . . . 30
Liabilities of Canal Companies in Event
Proj ect Comp 1 et ion Date does not Occur;
Cana 1 Company Option........................................ 30
ARTICLE V
PAYMENT OBLIGATIONS
Royalty....................................................... 31
Cana 1 Company Opt i on to Defer
COlIencementof Royalty..................................... 32
I ncent i ve Royal ty. . . . . . . . . .-. . . . . . . . . . . . . . . . . ,. . . . . . . . . . . . . . . . . . 32
Pre- L 1 cense Advances.......................................... 34
Canal Company Construction Advances; Capital ized
Construct i on Advance Interest............................... 34
Canal Company Capitalized Mitigation Cost
Advances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Canal Company Annual Mitigation Expenses...................... 35
Leased Mitigation Water Costs................................. 36
Construct i on Debt; Guaranty................................... 36
~uarantee by Company of Debt
Servi ce Charge.............................................. 38
Use of Proceeds of Royalty and Incentive Royalty
to pay certain Canal Company Ob 1 i gat ions. . . . . . . . . . . . . . . . . . . . 38
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6.1
6.2
6.3
6.4
7.1
7.2
7.3
7.4
7.5
8. i
8.2
9. i
9.2
9.3
ARTICLE VI
AUTHORIZED REPRESENTATIVES
Authori zed Representat i ves. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Respons i bi 1 it i es of Authori zed Representatives................ 39
Procedures of Authori zed Representatives...................... 42
Di spute Resolution............................................ 43
ARTICLE VII
SPECIAL COVENANTS
Construction Records Required to be Maintained................ 43
Books and Records Related to Annual Mitigation
Expenses and Leased Mi t i gat i on Water Costs.................. 44
Comp 1 i ance wi th Laws, Ru1 es and Regu1 at ions. . . . . . . . . . . . . . . . . . . 45
Corporate Exi stence of Power Company;
Mergers and Conso1 i dat ions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Approval s. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 46
ARTICLE VI II
ASSIGNMENT
Condition of Assignments by Power Company..................... 47
Assignments or Dissolution by Canal Companies................. 47
ARTICLE IX
EVENTS OF DEFAULT AND REMED I ES
Events of Defaul t Defi ned; Uncontro 11 able Forces.............. 48
Remedies for Defaults......................................... 50
No Additional Waiver Implied by One Waiver... ... .............. 52
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EXIBl2CA NOIP~PACKW, IPCPASOf70
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10.1
10.2
10.3
11.1
11.2
11.3
12.1
12.2
12.3
12.4
12.5
12.6
12.7
12.8
12.9
ARTICLE X
LIABILITIES AND DAMAGES
L i abi.' ; ti.es.. ... . . ... . . ... . .. .. . .. .. . . .. . .. . ... .... ......... . . .
Damage to the Hi 1 ner Dam.. _ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
No Ownership Interest by Virtue of
Art i c 1 e V Payments..........................................
ARTICLE XI
TERM
Original Term.................................................
Renewa 1 Term. a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Payments duri ng Renewal Terms.................................
ARTICLE XII
MISCELLANEOUS
Arb; trat; on. . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
App 1 ; cab 1 e Laws...............................................
Notices and Computation of Time...............................
Add; tiona 1 Documents . . . . . . . . . . . . . . . . . . . . . . . . . .-. . . . . . . . . . . . . . . .
Ent ire Agreement..............................................
Supp 1 ements and Amndments....................................
Severabi 1 i ty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .
Execut ion in Counterparts.....................................
Capt ions and Head; ngs . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . .. . . . ..
52
52
53
53
54
54
54
55
55
56
56
56
57
57
57
Signatures... ............................................................. 57
Schedule I
Schedule II
Exhibit I '
Pre-l icense Advance pursuant to
Section 3.4 hereof....................................
Sampl e cal cul at i on of Royalty pursuant
to Sect 1 on 5. i hereof.................................
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Summary of Terms-Milner Dam Rehabil itation
Project Long-Term Debt Offeri ng. . . . . . . . . . . . . . . . . . . . . . .
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62
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CASE NO IPC.£PACK', "'C
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AGREEMENT REGARDING THE OWNERSHIP, CONSTRUCTION,
OPERATION AND MAINTENANCE
OF
THE MILNER HYDROELECTRIC PROJECT (FERC NO. 2899)
BY AND BETWEEN
THE TWIN FALLS CANAL COMPANY,
NORTH SIDE CANAL COMPANY, LIMITED
AND
IDAHO POWER COMPANY
THIS AGREEMENT, entered into this 22~day of January, 1990, between the
Twin Falls Canal Company, a corporation domiciled in and authorized to do business
in the State of Idaho, wi th its pri nc i pal offi ce therei n located in Twi n Fall s,
Idaho, the North Side Canal Company, Limited, a Corporation domiciled in and
authorized to do business in the State of Idaho, with its principal office therein
located in Jerome, Idaho, and the Idaho Power Company, a corporation domiciled in
and authorized to do business in the State of Idaho, with its principal office
there in located in Bo i se, Idaho,
WIT N E SSE T H:
WHEREAS, the Canal Companies, together with the American Falls Reservoir
:,a"
District No.2, are the owners of the Milner Dam and, pursuant to agreement dated
October 6, 1981, with thé Canal Companies, the American Falls Reservoir District
NO.2 has ~aived any claim whith~¡1t may have in the development of a power resource
at the Milner Dam and in connection with such development the Canal Companies have
agreed to hold the American Falls Reservoir District No.2 harmless for rehabili-
tation, replacement or any other costs that are incurred as a direct result of any
requirements of the Coiiission over and above the normal safety requirements or other
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requirements to maintain the Milner Dam as irrigation facilities; and
WHEREAS, pursuant to agreement dated April 15, 1977, between the North Side
Canal Company and the Twin Falls Canal Company it was agreed that if a power site
at Milner Dam be developed using only a point of diversion on the south side of the
Snake River, the Twin Falls Canal Company's share in the development of the power
site would be 7/11ths and the share of the North Side Canal Company would be 4/11ths;
and
WHEREAS, the Canal Companies and the Power Company entered into Agreement
No.1, dated as of April 23, 1981, as later amended by February 24, 1983 Letter
Agreement, Agreement of December 20, 1983 and Agreement of March 21, 1988, relating
to the Parties participating in the construction of the Project, pursuant to which
Agreement No. 1 the Canal Companies, with the assistance of the Power Company as
provided in Agreement No.1, obtained the License to construct and operate the
Project issued by the Commission on December 15, 1988, no app1 ication for a rehearing
having been filed by the Canal Companies; and
WHEREAS, under date of February 7, 1989, the Parties entered into the
February 7, 1989 Agreement amending Agreement No.1 setting forth a common solution
to the requirements of the License with respect to the Milner Dam Rehabilitation.
Project, thereby permitting the Parties to proceed to the design and construction
phase of the Project, restating certain of the provisions of Agreement No.1,
providing for the Power Company to become a joint or co-l icensee with the Canal
Companies as to the Project under the License, and to provide the basis for the
rel ationship between the Parties as .i ~\'tt or co-1 icensees for the ownership,
construction, operation and maintenance of the Project under the terms and conditions
of the License; and
WHEREAS, under date of February 28, 1989, the Parties filed an appl ication
with the Commission for the addition of the Power Company as a co-licensee under the
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License to effectuate the contractual arrangements between the Parties, which
application was approved by the Commission by Order issued May 2, 1989, which Order
was accepted by the Canal Compani es on June 13, 1989, and pursuant thereto, the Power
Company is a co - 1 i censee wi th theCana 1 Compani es under the License wi th respect to
the Project; and
WHEREAS, the Power Company and the Canal Compan i es des i re to enter into
a definitive agreement whereby the Parties, having received the License from the
Commission with respect to the Project, shall proceed with the engineering,
financing, construction, ownership, operation and maintenance of the Milner Dam
Rehabilitation Project and the Power Plant, including the coordination of the
construction of the Power Plant with the M.ilner Dam Rehabilitation Project, and
whereby the Parties will set forth the ownership interests and clarify the
responsibil ities of the Parties in the Project; and
WHEREAS, the Parties wish to recognize and provide for the construction
of Additional Generation Facil ities as part of the Project in accordance with the
terms and cond it ions of the License or otherwi se; and
WHEREAS, the Parties wish to recognize and to provide for the mechanism
whereby the Canal Companies may exercise options to share in the Net Benefits of any
sa 1 e of e 1 ectri c energy by the Project if the P~wer Pl ant is not placed in the rate
base of the Power Company; and
WHEREAS, the Parties wish to del ineate the responsibil ities of the Canal
Companies for the paymnt of Pre-License Advances and Annual Mitigation Expenses;
NOW, THEREFORE, in consideration of the mutual and dependent stipul ations
and covenants herein contained, it is agreed by and among the Parties hereto, as
follows:
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ARTICLE I
DEFINITIONS
The following words and phrases shall have the following meanings, unless
the context clearly indicates to the contrary:
"Additional Generation Facil ities" shall mean any facil ities for the
gene rat i on of e 1 ectri c energy added to the Project pursuant to Section 308 of the
License, or otherwise, during the Original Term of this Agreement.
"Agreement" shall mean this "Agreement Regarding the Ownership,
Construct ion, Ope rat i on and Maintenance of the Mi 1 ner Hydroe 1 ectri c Project (FERC
No. 2899) by and between the Twin Falls Canal Company, North Side Canal Company,
L i mi ted, and Idaho Power Company," as the same may be supplemented or amended.
"Agreement No.1" shall mean the "Agreement No. 1 General Understand i ng"
between the Canal Companies and the Power Company, dated as of April 23, 1981, as
amended by February 24, 1983 letter Agreement, Agreement of December 20, 1983 and
Agreement of March 21, 1988, and as supplemented by the February 7, 1989 Agreement.
"American Falls Reservoir District No. 2" shall mean the American Falls
Reservoir District No.2, an irrigation district organized and existing under the
provisions of Title 43, Idaho Code, as amended, and its successors and assigns.
"Annual Mitigation Expense Budget" shall mean the budget to be prepared
annually pursuant to the provi sions of Section 4.7 hereof providing for Annual
Mitigation Expenses, including any additional annual expenses required under the
license as added to th~ Annual Mitigation Expense' Budget by the Authorized
Representatives from time to time.
"Annua 1 Mi t i gat i on Expenses" shall mean the annual charges incurred by the
Parties under the license required by Articles 404, 405, 406, 408, 409, 410, 412,
413, 414, 416, 417 and 419 of the license or as may be required by future Commission
orders and which are not capital ized as part of the Capital ized Mitigation Costs.
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EXIBI 2CA NO IP-EPAKW. IPC
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Leased Mitigation Water Costs shall not be calculated as a part of Annual Mitigation
Expenses.
"Authorized Representatives" shall mean collectively, the. Authorized
Representatives appointed by each of the Parties pursuant to the provisions of
Article VI hereof.
~
"Bypass Flows" shall mean the flows in the Snake River immediately
downstream of the Milner Dam as measured at the present site of the Milner gage.
"Canal Companies" shall mean collectively, the North Side Canal Company
and the Twi n Fall s Canal Company.
"Canal Company Annual Mitigation Expenses" shall mean the share of the
Annual Mitigation Expenses incurred each year and assigned to the Canal Companies
pursuant to the provisions of Section 4.7 hereof to be paid by the Canal Companies
pursuant to Section 5.7 hereof.
"Canal Company Capital ized Mitigation Cost Advances" shall mean the
advances made to the Canal Companies by the Power Company from time to time pursuant
to the provi s ions of Sect ion 4.6 hereof, to be repaid by the Canal Compan i es to the
Power Company under Section 5.6 hereof to pay Capitalized Mitigation Costs.
"Canal Company Construction Advances" shall mean the advances made to the
Canal Companies by the Power Company from time to time pursuant to the provisions
of Section 4.5 hereof, to be repaid by the Canal Companies under Section 5.5 hereof,
to pay the Costs of Construction of the Mi 1 ner Dam Rehabi 1 i tat i on Project.
"Capi tal i zed Construction Advance Interest " shall mean interest on the
Canat Company Construction Advances pri or to the date the Construct tlin Debt is
incurred or the Project Completion Date, which ever is earlier, calculated at the
effective Short Term Borrowing Cost of the Power Company.
"Capital ized Construction Debt Interest" shall mean, if Construction Debt
is incurred prior to the Project Completion Date, the interest capitalized as part
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CASE NO. 1f-EPACKW. IPC
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of the Construction Debt between the date the Construction Debt is incurred and the
Estimated Completion Date. The Capitalized Construction Debt Interest shall be the
responsibility of the Canal Companies.
"Capitalized Mitigation Cost Budget" shall mean the Capitalized Mitigation
Cost Budget to be prepared pursuant to the provisions of Section 4.6 hereof providing
for the Capitalized Mitigation Costs, including any additional costs as added to the
Capital ized Mitigation Cost Budget by the Authorized Representatives from time to
time.
"Capitalized Mitigation Costs" shall mean the costs of the Project required
under Articles 402,403,404, 405, 406,407, 408, 409, 410, 411, 412,413, 414,416,
417, 418, 419, 420, 421 and 422 of the License, which are capital ized and not
expensed, all as approved by the Authori zed Representatives, as provi ded for under
Section 6.2(a)(14) hereof.
"Commercial Operation" shall mean 12:01 A.M. on the date when, pursuant
to Prudent Ut i 1 i ty Practices, the Power Pl ant's 1 argest un i t located approxi mate 1 y
1. 5 mi 1 es downstream of Mi 1 ner Dam is i nsta 11 ed, tested and ready to deli ver
continuous electrical energy, irrespective of the availabil ity of water.
"Commi ssion" shall mean the Federal Energy Regul atory Commission and its
successors and assigns.
"Construction Budget" shall mean the Construction Budget prepared pursuant
.:0"
to the provisions of Section 4.5 hereof for the Costs of Construction of the Milner
Dam Rehabil itation Project.
"Conruction Contractor" shall mean the entity or entities author~zed
the Authori zed Representatives to be employed for the construction of the Mi 1 ner 0 m
Rehabil itation Project.
"Construction Debt" shall mean the debt of the Canal Companies from t e
Lender secured by the Guaranty to repay the Canal Company Construction Advances a d
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EXIB~
CA NO. i -EPAC N.IPC
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Capital ized Construction Advance Interest and shall include the
Construct i on Debt Interest.
"Construct i on Management Agreement" shall mean the letter Agreement betwe n
I
Capital iZl
the Canal Companies and the Power Company, dated as of October 6, 1989, providi g
for the Power Company to act as Construction Manager.
"Construction Manager" shall mean the entity employed by the Can 1
Compan i es in accordance wi th the provi s ions of Section 4.4 (c) to oversee and mana e
the construction of the Mi 1 ner Dam Rehabi 1 i tat i on Project.
"Costs of Construction" shall mean all costs, except Prelicense Advance,
properly attributable to the design and construction of the Milner Dam Rehabilitati n
Project and all expenses pre 1 i mi nary and inc i denta 1 thereto incurred by, or on beha f
of the Canal Compan i es in connection therewi th, inc 1 ud i ng all engi neeri ng, fi sc 1
and 1 ega 1 expenses for wh i ch funds are advanced by the Power Company as Canal Compa y
Construct i on Advances.
"Debt Service Charge" shall mean the principal of and interest due on t e
Construction Debt, pursuant to the provisions of Section 5.9 hereof. I
"Design Engi~eer" shall mean Morri son-Knudsen Engineers, Inc., heretofore
employed pursuant to the Technical Service Agreement for the design of the Miln r
Dam Rehabi1 itation Project.
"Equi pment Supp 1 i ern shall mean the entity or ent it i es selected by t e
Authorized Representatives to supply the spillway gates or other equipment as pa t
of the Milner Dam Rehabilitation Project.
",Estimated C(.a,¡pletion Date" shall mean the date, as determined by t e
Authorized Representatives from time to time in accordance with the provisions f
Section 6.2(a)(18) hereof, which is estimated to be the Project Completion Date.
"February 7, 1989 Agreement" shall mean the supplement to Agreement No.1
between the Canal Companies and the Power Company, dated February 7, 1989, s
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EXIBI 2
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ratified by the Boards of Directors of the Canal Companies on February 8,
by the Board of Directors of the Power Company on March 9, 1989.
"Guaranty" shall mean the guarantee by the Power Company of the payme t
of the Debt Servi ce Charge to the Lender pursuant to the provi s ions of Sect ion 5.9
hereof, which shall be unconditional pursuant to the terms of Section 5.10 hereo .
!\
"Incentive Royalty" shall mean the annual incentive royalty payments 0
be paid to the Canal Companies as their respective interests appear, by the Pow r
Company pursuant to the provi s ions of Sect ion 5.3. hereof for annual gene rat i on f
electric energy at the Project in excess of 142,000 MWh.
"Incentive Royal ty Calcul ation Period" shall mean initially the peri d
commencing on the first day of the calendar month next succeeding the Proje t
Completion Date and ending on the last day of the 12th calendar month succeeding t e
commencement of the initial Incentive Royalty Period, and thereafter each succeedi
12 month period during the Original Term of the Agreement.
"Lender" shall mean the entity secured by the Guaranty, lending
represented by the Construction Debt as contempl ated in Section 5.9 hereof.
"Leased Mitigation Water" means water purchased by the Power Company n
behalf of the Parties, pursuant to the requirements of Section 401 of the Licen e
in order to meet the Target Flows.
"Leased Mitigation Water Costs" shall mean the costs incurred pursuant 0
Section 4.9 hereof for the purchase of Leased Mitigation Water required to
purchased by the Parties under the terms and conditions of Section 401 of
License.
"License" shall mean the License for Project No. 2899 issued by t e
Commission on December 15, 1988, and expiring on November 30, 2038, as supplement d
by Order issued May 2, 1989, approving the transfer of the License to the Pow r
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EXIBI 2
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Company as a co-licensee, and by Order issued August 4, 1989, amending Section 2 1
hereof, and any other supplement, amendment, cont i nuance or renewal there f
authori zi ng the Part i es to construct the Project, to operate and ma i nta in the Pow r
P1 ant and to undertake the Mi 1 ner Dam Rehabi 1 i tat i on Project.
"License Year" shall mean a twelve-month period calculated by referen e
to December 1, 1988, during the License Term.
"Milner Dam" shall mean the existing diversion structure located on t e
Snake River, together with all related facilities, including but not limited t ,
appurtenant spi 11 ways, cana 1s, headworks and facil it i es ,owned and operated ffr
irrigation purposes by the Canal Companies and the American Falls Reservoir Distri t
No.2, as rehabilitated by the Milner Dam Rehabilitation Project.
"Mi 1 ner Dam Rehabil i tat i on Project" shall méan the program to be undertak n
by the Parties to reconstruct, rehabil itate and improve the Milner Dam, all n
accordance with the provisions of the License and this Agreement.
"Milner Gage" shall mean the existing USGS gage below Milner Dam, to e
used to measure the Bypass Flows. I
"Net Benefits" shall, for purposes of (i) the provisions of Section 3 5
hereof, and (i i) the opt i on granted the Canal Compan i es inSect ion 4.11 hereof, me n
the annual residual remaining after deduction of all costs associated with the sa e
i
of e 1 ectri c energy generated by the Power Plant, inc 1 ud i ng , but not 1 i mi ted tr' ,
transmission expenses, energy firming and shaping expenses (if required), operatifn
and maintenance expenses, taxes, environmental mitigation expenses, debt service ard
a return on, equity investment to the Power Company consi stent with the debt co~pone t
of capitalization utilized in financing the Power Plant, from Project revenues.
"North Side Canal Company" shall mean the North Side Canal Compan ,
L i mi ted, a corpora t i on organ i zed and exi st i ng under the 1 aws of the State of I dahr ,
and its successors and assigns.
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"Original Term" shall mean the duration of this Agreement as specified n
Article XI hereof, ending concurrently with the expiration of the initial term
the License on November 30, 2038.
"Parties" shall mean collectively, the Canal Companies and the Pow r
Company.
"Post Project Completion Date Interest" shall mean interest on the Can 1
Company Construction Advances and the Capitalized Construction Advance Interest fr m
the Project Completion Date to the date on which the Construction Debt is
cal cul ated at the Short Term Borrowi ng Cost of the Power Company.
"Power Company" shall mean the Idaho Power Company, a corporat i on organ i z d
and existing under the laws of the State of Idaho, and its successors and assign.
"Power Plant" shall mean the hydroelectric generating facility, togeth r
with all related facilities required under the License, consisting initially of a
46 MW power facility located downstream of the Milner Dam on the Twin Falls canal,
to be constructed, operated and maintained by the Power Company as its part of t e
Project, including, without limitation, any Additional Generation Facilities, t e
penstocks, intake structure, and forebay but not the canal or irrigation wat r
control structures, in accordance with the License and this Agreement, or otherwis .
"Pre- License Advances " shall mean those advances, made by the Power' Compa y
on behalf of the Canal Companies as set forth in Section 3.3 hereof, to pay certain
expenses, including the Dam Safety Study as contemplated in Agreement No.1, incurr d
by or on behalf of the Parties pri or to the issuance of the License on December 1 ,
I9ß8., a portion of which is to be repaid to the Power,-sompany by the Canal Compani s
pursuant to the provisions of Section 5.4 hereof.
"Project" shall mean collectively, the Power Plant and the Milner D m
Rehabi 1 itat ion Project, inc1 uding but not 1 imited to, all faci1 ities associ ated wi h
Commission Project No. 2899, and all related structures and works together with all
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necessary appurtenances related thereto, including, but not limited to the canal
en1 argement, construction of the penstocks, construction of new or additional control
gates, construction of all related transmission facilities and construction of all
recreational, fish and wildlife facilities required by the License.
"Project Comp 1 et i on Date" shall mean the date, as determi ned by the
Authorized Representatives in accordance with the provisions of Section 6.2(a)(lS)
hereof, on which the Power Plant is deemed to be in Commercial Operation.
"Prudent Ut i 1 i ty Pract ices " shall mean any of the pract ices, methods and
acts engaged in or approved by a significant proportion of the electrical uti1 ity
industry, or any practices, methods and acts which, in the exercise of reasonable
judgment in 1 ight of the facts known at the time, could have been expected to
accompl ish the desired result at the lowest reasonable cost consistent with
re1 i abil ity, safety and expedition," and the requirements of governmental agencies
having jurisdiction. Prudent Utility Practices are not intended to be limited to
the opt i mum pract ice, method, or act to the exc 1 us i on of all others, but rather to
be a range of possible practices, methods or acts.
"Renewal Term" shall mean any term following the 0 iginal Term of this
Agreement.
"Royalty" shall mean the annual royalty payments re uired to be made by
the Power Company to or on behalf of the Canal Companies s their respective
':.."
interests appear, pursuant to the provi s ions of Section 5. i he eof.
· Short Term Borrowi ng Cost" shall mean the actual borrowi ng
costs or temorary cash investment rate, as app 1 i cab 1 e, of thf ,P.tir Company, for
the time peri od inquest ion, as cert i fi ed by the Power Compa y to the Authori zed
Representatives from time to time.
"Target Flows. means the target flow in the bypass rea h of the Snake River
downstream of the Milner Dam required to be maintained pursua t to the provisions
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of Section 407 of the License, measured as required by the cornissio~~n~c~
Service Agreement" shall mean the Technical Service Agreement between the Parties
and Morrison-Knudsen Engineers, Inc., dated as of March 16, 1989, providing for the
design of the Milner Dam Rehabilitation Project.
"Total Flows" shall mean the flows in the Snake Ri ver downstream of all
Power Pl ant un its.
"Twi n Fall s Canal Company" sha 11 mean the Twi n Falls Canal Company, a
corporation organized and existing under the laws of the State of Idaho, and its
successors and assigns.
"Uncontro llab 1 e Forces " shall mean any cause beyond the control of the
Party affected and which by the exerci se of reasonabl e di 1 igence the Party is unabl e
to avoid and shall include, but not be'limited to, an act of God, fire, flood,
explosion, strike, sabotage, and act of the public enemy, civil or military
authority, including court orders, injunctions, and orders of government agencies
with proper jurisdiction prohibiting acts necessary to performance hereunder or
permitting any such act subject to unreasonable conditions, insurrection or riot,
an act of the elements, fa i 1 ure of equ i pment, or i nab il i ty to obta in or sh i p
materials or equipment because of the effect of similar causes on suppliers or
carriers.
"Water Permit" shall mean Permit No. 01-7011 issued by the Idaho Department
of Water Resources providing for the appropriation of public waters of the State of
Idaho for use at the Power Plant as now or hereinafter in effect.
ARTICLE n
REPREsorr AT IONS
Section 2.1 General RepresentatiQ!. The Canal Companies and the Power Company
represent and warrant one to the other that:
(a) This Agreement is an agreement entered into by the Parties in order to carry
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out the reconstruction, rehabil itation and improvement of the Milner Dam through
the construction of the Milner Dam Rehabiiitation Project and the construction
and operation of the Power Plant, as contemplated in the license.
(b) In consideration of the transfer to the Power Company of an interest in the
License as co-1 i censee and the deli very of water to the Power P1 ant for the
purposes of generation of electric energy, the Power Company shall construct,
operate, maintain and own the Power Plant, and shall make the payments required
to be made to or on behalf of the Canal Compan i es in Art i c 1 eV hereof. In
consideration of the advances made on behalf of the Canal Companies by the Power
Company, the Canal Companies shall make the payments to the Power Company
requi red to be made in Art i c 1 e V hereof.
(c) The primary uses of the water and canal faci1 ities constituting the Milner Dam
shall be i rri gat i on and stock watering p~rposes and the Project shall not be
operated in such manner as to interfere with, deprive, terminate or reduce the
traditional irrigation and stock watering demands of the Canal Companies 1 imited
by the number of outstanding shares of record as of April 23, 1981.
(d) The canals and related facilities constituting the Milner Dam are now and shall
continue to be for all times under the sole ownership, maintenance and control
of the Canal Companies and the American Falls Reservoir District No.2, and by
th is Agreement it is understood among the Part i es that the Power Company is not
assuming any of the obligations, duties or 1 iabil ities of the Canal Companies
or the American Falls Reservoir District No.2 relating to the operation of the
can a 15, and related water fi;i:¡ 1i ties const i tut i ng the Mi 1 ner Dam.
Section 2.2. Representations of the Power Company. The Power Company represents
and warrants as. fo 11 ows:
(a) It is a corporation duly incorporated under the laws of, and is in good
standing, in the State of Idaho, has power under the 1 aws of Idaho and its
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Articles of Incorporation and By-Laws to enter into this Agreement and by proper
corporate act i on has been duly authori zed to execute and deli ver th is Agreement.
(b) Except as specified in paragraph (c) below, no additional or further approval,
consent or authorization of any governmental unit, publ ic agency or authority
is requi red to be obtained by the Power Company in connection wi th the execution
of th is Agreement and the carryi ng out by it of its vari ous undertakings and
obligations provided for or contemplated herein.
(c) As a regul ated uti 1 i ty, the authori ty of the Power Company to undertake the
transactions contemplated by this Agreement, to carry out its obl igations
hereunder including, but not limited to, operation and maintenance of the Power
Pl ant, the payment of the Royalty and the I ncent i ve Royalty and the Guaranty,
as contemplated herein, is subject to the obtaining by the Power Company of
various regulatory approvals, authorizations and permits of and by local, state
and federal regulatory agencies having jurisdiction thereof, and all such
approvals, authorizations and permits shall be duly and timely obtained by the
Power Company.
(d) There is no action, suit, proceeding or investigation at law or in equity before
or by any court, public board or body, pending or, to the best of the knowledge
and information of the Power Company, threatened against or affecting the Power
Company, or, to the best of the knowl edge and i nformat i on of the Power Company,
any basis for such action, suit, proceeding or investigation, wherein an
unfavorable decision, rul ing or finding which would adversely affect the
validity or enforceability of this Ay~eement.
(e) Neither the execution and del ivery of thi s Agreement, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the
terms and conditions of thi s Agreement, confl ict with or result in a breach of
any of the terms, conditions or provisions of any corporate restriction of any
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agreement or instruments or of any order, ruling or regulation of any court or
admi n i strat i ve agency, whether state or federal, to whi ch the Power Company is
now a party or by which it is bound, constitute a default under any of the
foregoing, or result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of the property or assets of the
Power Company under the terms of any instrument or agreement.
(f) The Power Company will take such action consistent with the requirements of this
Agreement as shall be necessary under the Guaranty wi th respect to the
Construction Debt of the Canal Companies contemplated to be incurred by the
Canal Companies to repay the Canal Company Construction Advances and the
Capi tal i zed Construction Advance Interest under the provi s ions of Sect i on 5.10
hereof.
(g) The Power Company will supply the Canal Companies and the Authorized
Representatives of the Canal Companies from time to time such information as
shall be reasonably requested by the Canal Companies, so as to enable the Canal
Companies to make an informed decision with respect to the option granted to
the Canal Companies in Section 4.11 hereof with respect to the Royalty and
Incentive Royalty in the event that the Project is not included in the rate base
of the Power Company.
Section 2.3. Representations of the Canal Companies. The Canal Companies represent
and warrant as fo 11 ows:
(a) The Canal Companies will hold the, Power Company harmless with respect to any
claims, of the American Falls Reservoir DiStmct No.2 as the owner, of an
interest in the Milner Dam with respect to any actions taken by the Power
Company under this Agreement or in contemplation of this Agreement with respect
to the Milner Dam and the Milner Dam Rehabil itation Project.
(b) The Canal Companies will use their best efforts to make water avail abl e to the
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Power Company at the Power P1 ant to the maximum extent reasonably possi b1e after
meeting all of the Canal Companies' traditional irrigation and stock water
demands, 1 i mi ted by the number of outstand i ng shares of record as of Apri 1 23,
1981. The water right at Milner for power generation shall be considered senior
to other power projects on the Can a 1 Compani es' systems.
(c) The Canal Companies will be solely responsible for furnishing the water to be
used in the Power Plant pursuant to the water permit for the generation of
electric energy and to that end will jointly exert their best efforts with the
Power Company to secure all water necessary to satisfactorily protect the
Parties in the use of the water needed for the generation of electric energy
at the Power Plant as part of the Project.
(d) The Canal Companies shall be solely responsible for all costs and expenditures
of the Canal Companies in conducting their ordinary business affairs,
particularly if related to this Agreement, the Milner m or the Milner Dam
Rehabi1 itation Project and including any subsequent agr ements or activities
which the Parties hereto may enter into or engage in.
Section 2.4. Representations of the North Side Canal Company. The North Side Canal
Company represents and warrants as fo 11 ows :
(a) It is a corporation duly incorporated under the laws of, and is in good
standing, in the State of Idaho, has power under the 1 and its
,-',a"
Articles of Incorporation and By-Laws to enter into this A reement and by proper
corporate action has-been duly authorized to execute and d liver this Agreement.
(b) No additional or further approval, consent or authorizatt..'i: of any governmental
unit, public agency or authority is required to be obtained by the North Side
Canal Company in connection with the execution of this Agreement and the
carrying out by it of its various undertakings and ob1 igations provided for or
contemplated herein.
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(c) There is no action, suit, proceeding or investigation at law or in equity before
or by any court, pub 1 i c board or body, pend i ng or, to the best of the knowl edge
and information of the North Side Canal Company, threatened against or affecting
the North Si de Canal Company, or, to the best of the knowl edge and i nformat ion
of the North Side Canal Company, any basis for such action, suit, proceeding
or investigation, wherein an unfavorable decision, ruling or finding which would
adversely affect the val idity orenforceabil ity of thi s Agreement.
(d) Neither the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement, conflict with or result in a breach of
any of the terms, conditions or provisions of any corporate restriction of any
agreement or instruments or of any order, ruling or regulation of any court or
administrative agency, whether state or federal, to which the North Side Canal
Company is now a party or by which it is bound, or constitute a default under
any of the foregoing, or result in the creation or imposition of any 1 ien,
charge or encumbrance of any nature whatsoever upon any of the property or
assets of the North Side Canal Company under the terms of any instrument or
agreement.
Section 2.5. Representations of the Twin Falls Canal Company. The Twin Falls Canal
Company represents and warrants as fo 11 ows :
(a) 'It is a corporation duly incorporated under the laws of, and is in good
standing, in the State of Idaho, has power under the 1 aws of Idaho and its
Articl,es of Incorporation and By-Laws to enter into this Agreement 'by proper
corporate action has been duly authorized to execute and del iver this Agreement.
(b) No additional or further approval, consent or authorization of any governmental
un it, pub 1 i c agency or authori ty is requ i red to be obta i ned by the Twi n Fall s
Canal Company in connection with the execution of this Agreement and the
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carrying out by it of its various undertakings and obligations provided for or
contemplated herein.
(c) There is no action, suit, proceeding or investigation at law or in equity before
or by any court, pub1 ic board or body, pending or, to the best of the knowledge
and i nformat i on of the Twi n F all s Canal Company, threatened against or affect i ng
the Twin Falls Canal Company, or, to the best of the knowledge and information
of the Twin Falls Canal Company, any basis for such action, suit, proceeding
or investigation, wherein an unfavorable decision, ruling or finding which would
adversely affect the validity or enforceability of this Agreement.
(d) Neither the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement, confl ict with or result in a breach of
any of the terms, conditions or provisions of any corporate restriction of any
agreement or instruments or of any order, ruling or regulation of any court or
administrative agency, whether state or federal, to which the Twin Falls Canal
Company is now a party or by whi ch it is bound, or constitute a default under
any of the foregoing, or result in the creation or imposition of any 1 ien,
charge or encumbrance of any nature whatsoever upon any of the property or
assets of the Twin Falls Canal Company under the terms of any instrument or
agreement.
ARTICLE III
LICENSE
Section 3.1. License. The License for Project No. 2899 was issued December 15,
1988, by the Commission to the Canal Companies and was supplemented by Commission
Order issued May 2, 1989, adding the Power Company as a co-licensee. The License
expires on November 30, 2038. The License is conditioned upon commencement of
construction of the Project within two years from December 1, 1988, and upon
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completion of the Project within four years from December 1, 1988. Separate
commencement and comp 1 et i on dates are prescri bed in the License wi th respect to the
Mi 1 ner Dam Rehabi 1 i tat i on Project.
Section 3.2. Compliance with the license. The Parties recognize that as co-
licensees under the License, they are jtintly and severally liable to fulfill all
statutory and regul atory obl igat ions under the License regardl ess of thei r varyi ng
interests in Project property and their contractual obl igations to each other
regarding the Project, as set forth herein. So long as the License shall be in full
force and effect the Part i es shall operate or cause the Project to be operated in
good fa i th pursuant to the terms of the License and shall not fa i 1 to comply at all
times with the terms and provisions of the license. Recognizing the ownership
interests and allocation of responsibilities set forth in this Agreement, the Power
Company agrees to hold the Canal Companies harmless for each and every failure of
the Power Company to conform to or otherwise comply with the provisions of the
license with respect to the construction, operation and maintenance of the Power
Plant. The Canal Companies agree to hold the Power Company harmless for each and
every failure of the Canal Companies to comply with the terms of the license in
connect i on wi th the construction, operat ion, ma i ntenance and ownersh i p of the Hi 1 ner
Dam and the Hilner Dam Rehabil itation Project.
Section 3.3. Pre-License Advances. Pursuant to the provisions of Agreement No.1,
the Power Company incurred Pre-license Advances. Under the terms of Agreement No. 1
the Canal Companies were obligated to repay 50% of the Pre-License Advances exceeding
$200,000, plus interest at 10% per annum from the date of each advance, with the
total 1 iabil ity of the Canal Companies to repay Pre-license Advances, including
interest, not to exceed $800,000. Notwithstanding anything in Agreement No. 1 to
the contrary, the Parties hereby agree that the amount of Pre-license Advances,
including interest to date, required to be reimbursed to the Power Company by the
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Canal Companies is $570,967.00. This amount includes one-half of a $341,935.00
request for reimbursement from the Canal Companies the full amount of which is
payable to the Canal Companies upon the signing of this Agreement and subject to post
payment audit by the Power Company. The Canal Companies shall repay their allocated
share of the Pre- Li cense Advances, determi ned in accordance with the respect i ve Canal
Company interests set forth inSect ion 4.2 hereof, in accordance wi th the provi s ions
of Sect i on 5.4 hereof.
Section 3.4. License Responsibilities. Recognizing the respective ownership
interests of the Parties in the Project and the Agreement wi th respect to the Project
contained herein, it is agreed and understood that, except for the responsibilities
of the Canal Companies with respect to (i) the construction, ownership, maintenance
and operation of Milner Dam, and the Milner Dam Rehabilitation Project, (ii) Canal
Company Annual Mi t i gat i on Expenses, as set forth inSect ion 5.7 hereof, (i i i) Canal
Company Capitalized Mitigation Cost Advances as set forth in Section 5.6 hereof, and
(iv) Leased Mitigation Water Costs as set forth in Section 5.8 hereof, the Power
Company shall have res pons i bi 1 i ty for all operat i ona 1 expenses under the License and
for complying with the terms and conditions of the License, including, but not
1 imited to, charges imposed by the Commission for the use of federal lands within
the Project boundaries and for the power benefits obtained from upstream federal
projects, subject to any different allocation of responsibilities by the Authorized
Representat i ves cons i stent wi th the terms of the license and th is Agreement.
Section 3.5. Renewal of License. Under Section 15(b) (1) of the Federal Power Act
in force on date of the execut i On of th is Agreement, the Parties as co-l i censees
under the License must notify the Commission, at least five years before the
expiration of the License, whether the Parties intend to file an application for a
new or renewal License. Under Section 15(c) (1) of the Federal Power Act in force
on the date of the execution of this Agreement, each appl ication for a new or renewal
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License shall be filed with the Commission at least twenty-four (24) months before
the expiration of the term of the existing License. Recognizing the above stated
provisions of the Federal Power Act, the Parties mutually agree jointly to engage
in any and all activities that are reasonably necessary to comply with the above
requirements of the Federal Power Act as now or hereinafter in effect in order to
renew the License under the terms and conditions required by the Commission or its
successors, as those terms and conditions exist or may be changed from time to time
duri ng the term of the License. Not 1 ess than six years pri or to the expi rat i on of
the Original Term of this Agreement, the Parties agree to enter into good faith
negotiations for the purpose of setting forth the terms and conditions under which
the Project will be owned and operated during any renewal, extension or 1 icense
period granted to the Parties during the renewal, extension or 1 icense period by the
Commission or its successors, and the obligations of the Parties, one to the others,
inc 1 ud i ng the payment of a reasonab 1 e royalty to the Canal Compan i es for the
continued availability of the Milner Dam and water made available by the Canal
Compan i es through the Mi 1 ner Dam to the Power Company for the generat i on of e 1 ectri c
energy at the Power P1 ant. In the event the parties cannot reach agreement on new
terms, then the amount which will be paid to the Canal Companies annually during the
Renewal Term for all purposes including but not limited to royalties, rentals, or
fall i ng water charges wi 11 be one hal f of the Net Benefi ts.
.:;"
Section 3.6 Failure to Renew License If, upon the expiration of the License on
November 30, 2038, the Commission fails to issue a renewal or extension license to
the Parties, the Parties shall make all reasonable efforts to have the Commission
require as a condition to the granting of a 1 icense to a party other than the
Part i es, that (i) any new 1 i censee shall pay the net investment of the Part i es in
the Project and such other damages which are then permitted by law, plus reasonable
severance damages of the Part i es, and (i i ) any new 1 i censee shall assume all
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obl igations and contracts of the Parties with respect to the Power Plant. In the
absence of an agreement between the Part i es, any severance damages shall be shared
between the Power Company and the Canal Compan i es as thei r respect i ve interests then
appear.
ARTICLE IV
!\
THE PROJECT
Section 4.1. Ownership of the Project. The ownership interests of the Parties in
the Project shall be as set forth in this Article IV.
Section 4.2. Ownership of Milner Dam. The Canal Companies shall at all times
duri ng the term of th is Agreement and of the License rna i nta in the ownersh i p and
operation of Milner Dam, as contemplated in the October 6, 1981, agreement with
American Falls Reservoir District No.2, for all purposes of this Agreement. For
purposes of the obl igations of the Canal Companies to make payments under Article
V hereof or otherwise under this Agreement, in accordance with the agreement dated
April 15, 1977, between the Twin Falls Canal Company and the North Side Canal
Company, inasmuch as the point of diversion for the Power Plant is to be on the south
side of the Snake River, the ownership interests of the Canal Companies in the Milner
Dam and the several ob 1 i gat ions of each under th is Agreement shall be assumed to be
4/11ths in the North Side Canal Company and 7/11ths in the Twin Falls Canal Company.
The Canal Companies shall at all times during the term of the License and this
Agreement remain respons i b 1 e for all operation, maintenance and replacement costs
of the Milner Dam and payment of the expenses thereof, irrespective of any obligation
of~'t1he Amer,ican Falls Reservoir District NO.2 to the Ca.na1 Companies in connection
therewith.
Section 4.3. Construction and Owership of Power Plant
(a) The Power Company shall construct and own the Power P1 ant pursuant to and in
comp 1 i ance wi th the requ i rements of the License. The Power Company shall be
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solely responsible for the design, engineering and construction cost of the
Power Plant. The Power Company shall at all times during the term of the
License and the Agreement remain financially responsible for the construction,
ma i ntenance, operat i on and repa i r and replacement costs of the Power Pl ant for
the generation of e 1 ectri c energy at the Project.
(b) The Power Company shall be solely responsible for the design, engineering and
construction of the Power Plant subject only to a duty to coordinate its
act i vi ties in good faith wi th the Authori zed Representatives or thei r des i gnee.
The Power Company agrees to coordinate in good faith the design, engineering
and construction of the Power Plant with the design, engineering and
construction of the Milner Dam Rehabil itation Project through the Authorized
Representa t i yes or the i r des i gnee.
(c) As a part of the Power Plant Construction, the Power Company shall be solely
responsible for the design, engineering and construction of necessary
modifications to the existing Twin Falls Canal from the reservoir downstream
to and incl uding the new control structure downstream of the Power Pl ant
forebay, but the Power Company shall obta in the approval of the Authori zed
Representatives for the design, construction, operation and maintenance of the
faci1 itfes in this area of the Project. Construction of necessary modifications
to the' existing Twin Falls canal will not change the ownership or
respons i bi 1 it i es for the ope rat i on and maintenance of the Twi n Fall s canal, as
so modified, by the Canal Companies for irrigation purposes as part of the
tradiott(iIa1 operation of Milner Dam.
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CASE NO. IPC-EPACKW, IPC
PAGE 29 Of 70
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Section 4.4. Acquisition of the Project; Estimated Project Completion Date;
Project Completion Date.
(a) If requested by the Power Company, the Canal Companies will exert their best
efforts to negotiate for and acquire and sell to the Power Company all real
property, or interests therei n, not otherwi se acqui red by the Power Company and
necessary for the construction, operation and maintenance of the Power P1 ant,
including,. but not limited to, the powerhouse and the related penstocks. All
costs of the Canal Companies for such negotiations and acquisitions, as approved
by the Power Company shall be reimbursed to the Canal Companies.
(b) The Power Company, subject to the approval of the Authori zed Representatives,
shall as agent for the Canal Companies, cause all plans and specifications for
the construct i on of the Mi 1 ner Dam Rehabi 1 i tat i on Project to be prepared by the
Design Engineer and shall enter into all contracts with the Construction
Contractor and the Equipment Supplier necessary for the completion of the Milner
Dam Rehabi 1 i tat i on Project. A 11 costs incurred by the Power Company pursuant
to th is subsect ion (b) shall be cons i dered to be Canal Company Construct i on
Advances.
(c) The Canal Companies have pursuant to the Construction Management Agreement,
designated the Power Company to act as Construction Manager of the Milner Dam
Rehabi 1 i tat i on Project. The Construct i on Manager and the Canal Compan i es have
entered into the Construction Management Agreement del ineating the duties,
responsibi1 ities and 1 iabil ities of the Construction Manager and the Canal
Compa~ies. A11û~sts related to the management of construction of the Milner
Dam Rehabi1 itation Project and the Construction Manager shall constitute a
portion of the Cost of Construction and shall be paid by the Power Company as
a part of the Cost of Construction to be reimbursed by the Canal Companies as
part of the Canal Company Construction Advances.
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CA NO IPC-EPACKY. IPC
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.
(d) The Power Company, shall obtain the approval of the Authori zed Representat i ves
wi th respect to any port i on of the construction of the Power P1 ant or the Hi 1 ner
Dam Rehabi1 itation Project which shall require any disturbance of or use of the
canals or other property interests of the Canal Companies or the American Falls
Reservoi r Di stri ct No. 2 appurtenant to the Hi 1 ner Dam.
(e) The Authori zed Representat i ves shall estab 1 ish the Est i mated Comp 1 et i on Date
and shall determine the Project Completion Date. The Authorized Representatives
shall approve a fi na 1 accounting of the Costs of Construction and of the
Capi ta 1 i zed Construct i on Advance Interest based on the records of account
required to be maintained by the Power Company pursuant to the provisions of
Sect ion 7. 1.
(f) To the extent necessary to resolve any operation arrangements which shall become
necessary in order to ensure the efficient coordination of the operation of the
Mil ner Dam and the Power P1 ant, the Parties shall hereafter enter into an
operating agreement which shall govern those operating arrangements, a copy of
which operating agreement shall be filed with the Authorized Representatives.
setion 4.5. Milner Dam Rehabilitation Project; Construction Budget; Canal Company
Construct i on Advances.
( a) Wi th in 90 days a fter the execut i on of th is Agreement the Authori zed
Representatives shall cause the initial Construction Budget setting forth the
Costs of Construction of the Milner Dam Rehabil itation Project to be prepared
and suppl ied to the Parties. Upon the request of either the Power Company or
the C~nal Companies the Authorized Representatives may approve the amendment
of the Construction Budget from time to time in order to provide for the
comp 1 et i on of the Mi 1 ner Dam Rehabi 1 i tat i on Project in accordance wi th the
requ i rements of the Li cense or otherwi se . The Power Company shall pay the Costs
of Construction of the Milner Dam Rehabil itation Project as incurred, which
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costs shall be the basis for calculating the Costs of Construction paid by the
Power Company and the Canal Company Construct i on Advances thereby made by the
Power Company to the Canal Compan i es for purposes of Sect ion 5.5 hereof.
(b) The Canal Company Construction Advances shall bear Capitalized Construction
Advance Interest from the middle of the month within which each advance is made
to the date the Construction Debt is incurred or the Project Comp 1 et i on Date,
wh i chever is earl i er. I f the Construct i on Debt has not been incurred on the
Project Completion Date, the Canal Company Construction Advances and the
Capitalized Construction Advance Interest shall bear Post Project Completion
Date Interest from the Project Completion Date to the date the Construction Debt
is incurred. The Canal Companies shall reimburse the Power Company for the
Costs of Construction by paying the Canal Company Construction Advances, the
Capital ized Construction Advance Interest, and the Post Project Completion Date
Interest in accordance wi th the provi s ions of Sect ion 5.5 hereof.
(c) The Authorized Representatives, or their designated agent, shall be responsible
for designing, engineering and managing the construction of the Milner Dam
Rehabil itation Project, including selecting the Construction Contractor and each
Equipment Suppl ier.
Section 4.6. Capitalized Mitigation Costs: Capitalized Mitigation Cost Budget.
(a) The Power Company shall pay the Capitalized Mitigation Costs as incurred which--a-'
costs shall be the basis for determining the payment by the Canal Companies for
the Capitalized Mitigation Cost Advances. The Power Company shall prepare the
Capital ized Mitigation Cost Budget "i()l"'-review by the Authorized Representatives
of the Capitalized Mitigation Costs required under the License. The Capitalized
Mitigation Cost Budget, as initially approved by the Authorized Representatives,
may be amended from time to time upon approval by the Authorized Representatives
at the request of the Power Company or the Canal Companies in order to conform
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CA NO. Ifl-EPAC, IfI
PAGE 32 Of 70
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to the requ i rements of the License or otherwi se.
(b) The Canal Companies shall pay 50% of the Capitalized Mitigation Costs pursuant
to Section 5.6 hereof, exclusive of those Capitalized Mitigation Costs
associated with Articles 411, 412, 413, 414 and 419 of the License in force on
the date of execution of thi s Agreement.
Sect ion 4.7. Annua 1 Hi t i gat i on Expenses; Annual Hi t i gat i on Expense Budget.
(a) The Power Company shall pay the Annual Mitigation Expenses as incurred which
costs shall be the basis for determining the Annual Mitigation Expense payment
by the Canal Companies. Not less than 30 days prior to the Estimated Project
Completion Date the Power Company shall prepare and supply to the Authorized
Representatives for their review and approval the Annual Mitigation Expense
Budget for the first year of operation of the Project. Annual Mitigation
Expense Budgets for succeedi ng years shall be prepared and submi tted to the
Authorized Representatives for review in accordance with procedures establ ished
by the Authorized Representatives under Section 6.2(b) (2) hereof. The Annual
Mitigation Expense Budget for any year, as initially approved by the Authorized
Representatives, may be amended from time to time upon approval by the
Authorized Representatives at the request of the Power Company or the Canal
Compan i es in order to conform to the requi rements of the License or otherwi se.
(b) The Canal Companies shall pay 50% of the Annual Mitigation Expenses pursuant
to Sect ion 5.7 hereof.
Section 4.8. Royalty arid Incentive Royalty. In consideration of the use of ,the
falling water made available at the Power Plant L.r '",he Canal Companies pursuant to
th is Agreement, the Power Company ,agrees to pay the Royalty and the I ncent i ve Royalty
to the Canal Companies in the amounts and at the times as contemplated in Sections
5.1 and 5.3 hereof during the Original Term of this Agreement.
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CA NO IPC-€-9PACKW. IPCDA~":"2rv7n
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Section 4.9. Leased Mitigation Water.
(a) The Authori zed Representat i ves shall from time to time in order to remain in
comp 1 i ance wi th the requi rements of Section 401 of the License, approve the
Power Company's purchase of Leased Mitigation Water.The Authorized
Representatives shall from time to time adopt and revise procedures for
measuring the Bypass Flows, the Target Flows and the Total Flows.
(b) The Canal Companies shall reimburse the Power Company for Leased Mitigation
Water Costs pursuant to Section 5.8. The amount to be reimbursed shall be
calculated as follows:
When Total Flows Are
Below 249 cfs
Between 250 and 299 cfs
Between 300 and 399 cfs
Over 400 cfs
Percentage Obl igation to
Canal Companies to Reimburse
Leased Mi t i gat i on Water Costs
50%
37.5%
25%
0%
(but not exceeding 100 cfs)
(but not exceeding 75 cfs)
(but not exceeding 50 cfs)
Section 4.10. Additional Generation Facilities. If Additional Generation Facilities
are constructed or acquired by the Power Company as part of the Project subject to
the License, the Power Company shall construct, own, maintain and operate the
Additional Generation Facil ities in accordance with the provisions of the License,
and thi s Agreement. The generated output of the Additional Generation Facil ities
shall be included in calculating the Incentive Royalty, pursuant to Section 5.3 hereof
and the calculation of Net Benefits pursuant to Section 3.5 or Section 4.11 hereof,
if appl icable. The Power Company agrees to hold the Canal Companies harml ess in
connection, with the acqui sition, construction and operation of the Additional
Generation Faeil ities and will construct and operate the Additional Generation
Facil ities in such manner so as not to adversely affect the ownership or operation
of the Milner Dam and will reimburse the Canal Companies for any costs or damages
associated with the construction of the Additional Generation Facilities, insofar
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EXIBI 2
CASE NO. IPC-EPACKW. IPC
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as such construction may affect or require the use of any facility included as part
of the Mi 1 ner Dam or any port i on of the canal s or other property interests of the
Canal Companies.
Section 4.11. Option of Canal Companies - Deregulated Sale of Energy. If the Power
Company del i vers a not ice to the Canal Compan i es in wri t i ng pri or to the Project
Completion Date that the generated output of the Project is not to be placed in the
regulated rate base of the Power Company, but is to be sold to a third party on a
deregulated basis, the Canal Companies may elect an option to receive 50% of the
Net Benefi ts of the sale of the generated output of the Project, in wh i ch event the
Power Company shall have no obligation to pay the Royalty or the Incentive Royalty
contemp 1 ated inSect ions 5.1 and 5.3 hereof, provi ded however, the ob 1 i gat i on of the
Power Company to pay the Debt Service Charge pursuant to the Guaranty in Section 5.9
hereof shall remain in effect with respect to the Construction Debt. The Canal
Companies shall, not less than ninety (90) days subsequent to the receipt of the
notice from the Power Company provided for above, del iver a notice to the, Power
Company in writing if they wish to exercise the option contained in this Section 4.11
hereof wi th respect to Net Benefi ts.
Section 4.12. Termination of Deregulated Sale of Energy. In the event, after the
exercise of the option contained in Section 4.11 hereof to receive 50% of the Net
Benefits of the sale of the generated output of the Project, the Power Company
notifies the Canal Companies in writing of its intention to terminate the sale of
the generated output of the Project to a third party on a deregulated basis and to
ph\ce the Project in the regul ated ratp base of the PO't"e¡- Company, upon such
termination the amount of the Royalty and the Incentive Royaìty paid by the Power
Company to the Canal Companies shall in no event in any year be less than what would
have been the Royalty and the Incentive Royalty paid in such year calculated under
the provisions of Sections 5.1 and 5.3 hereof, as shown in Schedule 1 as contemplated
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CASE NO IPC.£PAKW. I!'
PAGE 35 Of 70
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therein, provided, however, the provisions of Section 5.2 hereof which permit
deferred i nsta 11 ments shall not be app 1 i cab 1 e.
Section 4.13. Insurance. At all times following the start of construction and prior
to the acceptance of the Power Plant for operat i on by the Power Company on the
Project Completion Date the Power Company shall procure and maintain in effect
adequate liability and property damage insurance in connection with the construction
of the Milner Dam Rehabilitation Project and the Power Plant with each of the Canal
Companies and the Power Company as named insureds. The Authorized Representatives
sha 11 allocate to the Construction Budget an ali quot port i on of the premi urns for such
insurance coverage properly assignab1 e to the Mil ner Dam Rehabi 1 i tation Project.
Section 4.14. Liabilities of Canal Companies in Event Project Completion Date
does not Occur; Canal Company Option.
(a) If the Project Completion Date does not occur for any reason, including, without
1 imitation, abandonment of the License or failure of the Power Company to
comp 1 ete construction of the Power P1 ant, the Parties shall enter into good
faith negotiations for the purpose of setting forth the terms and conditions
under which the Canal Companies will be ob1 igated to repay the Canal Company
Construction Advances and Capital ized Construction Advance Interest at a term
of not less than 25 years with interest at not more than 10% per annum.
(b) The Canal Companies shall have no ob1 igation to reimburse the Power Company for
Pre-License Advances in the event the Project Completion Date does not occur
as contemplated in subsection (a), except to the extent of the liability of the
Canal ,Companies based on an assignment of responsibility to the Canal Companies
for fa i 1 ure of the Project Comp 1 et i on Date to occur pursuant to a submi ss ion
to arbitration by the Parties under Section 12.1 hereof, or otherwise. Any
obl igation of the Canal Companies to pay Pre-License Advances in the event the
Project Completion Date does not occur, as determined in the preceding sentence,
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EXIBI 2
CA NO. IPC-€PACKW. IPC
PAGE 36 Of 70
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shall be paid i n equal annual i nsta 11 ments of pri nci pal, plus interest at ten
percent (10%) per annum over a period equal ing what would have otherwise been
the remaining portion of the Original Term of this Agreement.
(c) In the event the Power Company is unabl e to compl ete constructi on of the Power
PL ant, the Canal Compan i es shall have a ri ght of fi rst refusal to take over the
respons i bi 1 i ty under the License to complete the construction of the Power PL ant
under such terms and cond it ions as the Part i es then agree to.
ARTICLE V
PAYMENT OBLIGATIONS
Section 5.1. Royalty. Commencing on the first business day of the calendar month
next succeeding the calendar month during which the Project Completion Date occurs
and annua 11 y thereafter, the Power Company wi 11 pay the Royalty to the Canal
Companies during the Original Term of the Agreement. The aggregate amount of the
Royalty will equal the net present value of $5,638,000, plus one-half of the Costs
of Construction of the Milner Dam Rehabilitation Project, including (i) the
Capital ized Construction Advance Interest and (i i) the Capital ized Construction Debt
Interest. The Royalty is to be calculated by the Power Company and approved by the
Authorized Representatives as of the Project Completion Date using a discount rate
of ten percent (10%) per annum. The Royalty will be applied first, to repayment of
any Post:lroject Completion Date Interest, as contemplated in Section 5.9(b) hereof,
and sècond, to repayment of the principal and interest on the Construction Debt, as
contemp 1 ated inSect ion 5. i 1 hereof. The payment of the Royalty shall be subject
to the provisions of S'êction 5.2 and Section 5.9 hereof. Schedyle l attachedhereto
sets forth a sample calculation of the Royalty under certain assumptions, the
principles of which Schedule l shall govern the actual calculation of the Royalty
pursuant to the provi s ions of th is Sect ion 5.1.
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Section 5.2. Canal Company Option to Defer Commencement of Royalty. After the
Project Completion Date and for a period of 90 days after the Power Company certifies
the final balance of all Canal Company Construction Advances and Capitalized
Construction Advance Interest, the Canal Companies, by written notice to the Power
Company, may exerci se an option, subject to the net present val ue 1 imi tat i on of the
calculation of the Royalty as set forth in Section 5.1 hereof, to have the portion
of the Royalty rem a i ni ng, if any, after payments due wi th respect to the Construct ion
Debt and Post Project Completion Date Interest, if any, have been made or duly
prov i ded for, pa i d to the Canal Compan i es i n equal annual or other mutua 11 y agreed
upon deferred i nsta 11 ments duri ng the 1 ast th i rty (30) years of the Ori gina 1 Term
of this Agreement. The Authorized Representatives shall utilize the principles
contained in Schedule 1 in calculating the portion of the Royalty to be paid in
deferred installments should the Canal Companies exercise the option contained in
th is Sect ion 5.2.
Section 5.3. Incentive Royalty.
(a) Commencing in the first Incentive Royalty Calculation Period and in each
Incentive Royalty Calculation Period thereafter, in addition to the payment of
the Royalty pursuant to Sect ion 5.1 hereof, the Power Company shall pay the
Incentive Royalty to the Canal Companies during the Original Term of the
Agreement based on the gene rat i on of the Power Pl ant duri ng each I ncent i ve
Royalty Calculation Period. The Incentive Royalty shall be based upon the
generation of electric energy at the Power Plant during each Incentive Royalty
Calcul~tion Period in exces! of 142,000 MWh, as determined by the Authorized
Representatives pursuant to Section 6.2(b)(5) hereof. The Incentive Royalty,
if any, due in each Incentive Royalty Calculation Period shall be paid as
follows: (i) comencing no later than the 25th day of the calendar month next
succeeding the calendar month of each Incentive Royalty Calculation Period
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during which the generation of electric energy at the Project for that Incentive
Royalty Calculation Period exceeds 142,000 MWh, and (ii) on the 25th day of each
succeedi ng calendar month, until the Incent i ve Royalty for the current Incentive
Royalty Calculation Period has been paid. Except as provided in subsection (b),
the Incentive Royalty shall be base~ upon the following generation of electric¡.-.
energy at the Project in excess of 142,000 MWh in each Incentive Royalty
Calculation Period as determined by the Authorized Representatives:
1.5 mills per kWh for generation of electric energy at the Project from
142,000 MWh and to and including 191,999 MWh;
2.0 mills per kWh for generation of electric energy at the Project from
192,000 MWh and to and including 216,999 MWh; and
2.5 mills per kWh for generation of electric energy at the Project in
excess of 216,999 MWh.
(b) Beginning in the Incentive Royalty Calculation Period commencing in License Year
twenty-one (21) and every five years thereafter during the Original Term of this
Agreement, the Incentive Royalty millage rate set forth in subsection (a) shall
be increased by thirty percent (30%),calculated as follows:
142,000 MWH to '200,000 MWH 217 ,000 MWH
License Years 191,999 MWH to 216,999 .MWH and Over MWH
1-20 1.500 Mill s 2.000 Mills 2.500 Mill s
21-25 1.950 2.600 3.250
26-30 2.535 3.380 4.225
31-35 3,296 4.394 5.493
36-40 4.284 5.712 7.140
41-45 5.569 7.426 9.282
46-50 7.240 9.654 12.067
Section 5.4. Pre-L icense Advances. Pre-License Advances calcul ated to be due to
the Power Company by the Canal Companies in accordance with the provisions of Section
3.3 hereof shall be repaid by the Canal Companies in accordance with the provisions
of this Section 5.4. The obligation of each Canal Company to repay Pre-License
Advances, including interest, which shall be several and not joint according to the
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CA NO. 1f~-9PACKWN, IPC
PAGE 39 Of 70
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ownership interests set forth in Section 4.2, is as set forth i Section 3.3 hereto,
and is payable in equal annual installments of principal a d interest over the
remainder of the Original Term of this Agreement commencing n the first business
day of the calendar month occurring next succeeding the Pro ect Completion Date,
according to a schedule of the installments to be approv by the Authorized
Representatives pursuant to Section 6.2(b)(6) hereof. Pre-License Advances
shall bear interest at the rate of 10% per annum from the Pr ject Completion Date
unt il paid. Anyth i ng herei n to the contrary notwithstand i ng, each Canal Company
shall be entitled to prepay any of the installments, in any amount, at any time
wi thout a prepayment pen a 1 ty .
Sect; on 5.5 . Canal Coman Construct; on Advances. Ca ; tal i ze Constructi on
Advance Interest.
(a) Canal Company Construction Advances and the Capital ized Construction Advance
Interest calculated to be due to the Power Company by t e Canal Companies in
accordance with the provisions of Section 4.5 and Secti n 5.9(a) hereof, and
Post Project Completion Date Interest, if any, calculated 0 be due to the Power
Company pursuant to the provisions of Section 4.5 and S ction 5.9(d) hereof,
shall be repa i d by the Canal Compan i es in accordance wi th, he provi s ions of th is
Sect ion 5.5. Cana 1 Company Construct i on Advances made the Power Company,
together wi th the Capi ta 1 i zed Construction Advance Intere t thereon cal cul ated
as provided in Section 4.5(b) hereof, shall be due and ayable by the Canal
Companies from the proceeds of the Construction Debt, a provided in Section
5.9 hereof. Post Project Completion Date Int9rest calc lated as provided in
Section 4.5 hereof shall be due and payable by the Canai Companies from the
proceeds of the Royal ty, as provi ded inSect ion 5.1 here f.
(b) Attached hereto as Schedule 11 is the latest itemizat on of the Costs of
Construction advanced by the Power Company prior to the date of execution of
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the Agreement, together with the appl icable Short Term B rrowing Cost of the
Power Company, as app 1 i cab 1 e.
Section 5.6. Canal Com an Ca italized Miti ation Cost Adva es. Canal Company
Capitalized Mitigation Cost Advances calculated to be due to he Power Company by
the Canal Companies in accordance with the provisions of Section 4.6, shall be repaid
by the Canal Companies in accordance with the provisions of this Section. The
obligation of each Canal Company to repay Canal Company Capitalized Mitigation Cost
Advances, which shall be several and not joint according to th ownership interests
set forth in Section 4.2, shall be payable in equal annual inst llments of principal
and interest over the remainder of the Original Term of this greement commencing
on the first business day of February next succeeding the Proj ct Completion Date,
according to a schedule of installments to be approved by the Authorized
Representatives pursuant to Section 6.2(b)(8) hereof.
Capital ized Mitigation Cost Advances shall bear interest at the ate of 10% per annum
from the mi dle of the month during which each advance is made as certified by the
Power Comp l from time to time to the Authorized Represen atives, until paid.
i
Anything he ~in to the contrary notwithstanding, each Canal Comp ny shall be entitled
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to prepay a y of the installments in any amount at any time ithout a prepayment
Ipenalty. .
S ctian . Canal Company Annual Mitigation Expenses. Can 1 Company Annual
Mitigation ~penses calculated to be due to the Power Company b the Canal Companies
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in accordan ~ wi th the provi s ions of Sect ion 4.7 hereof, shall be paid by the Canal
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Companiestå accordance with' the provisions of this Section. Commencing on the
Project Completion Date Canal Company Annual Mitigation Expen es shall be payable
by the Canal Companies in each calendar year on the date, or da es, established from
time to time by the Authorized Representatives. The obligation f each Canal Company
to pay Canal Company Annual Mitigation Expenses shall be se eral and not joint
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CA NO Ifl-EPACKW. II
PAG 41 Of 70
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according to the ownership interests set forth in Section 4.2.
Section 5.8. Leased Mitigation Water Costs. Leased Mitigati if water is
available to the Parties in accordance with the requirements f Section 401 of the
Li cense, shall be acqu i red and paid for by the Power Company s Leased Mit i gat ion
Water Costs. The portion of Leased Mitigation Water Costs du to be reimbursed to
the Power Company by the Canal Companies pursuant to the provisions of Section 4.9
shall be paid by the Canal Companies in accordance with th provisions of this
Section 5.8. The obligation of each Canal Company to reimbu~ e the Power Company
for Leased Mitigation Water Costs shall be several and not jo,'nt according to the
ownersh i p interests set forth inSect ion 4.2 hereof. Payments or Leased Mi t i gat ion
Water Costs shall be due and payable by the Canal Companies a nually in accordance
wi th procedures to be establ i shed for that purpose by the Author zed Representat i ves.
Section 5.9. Construction Debt; Guaranty.
(a) The Canal Companies agree to incur the Construction Debt fr m the Lender secured
by the Guaranty after such time as the Cost of Construction has been reviewed
and cert i fi ed by the Authori zed Representat i ves in ccordance wi th the
pravi s ions of Sect ion 6.2 (a) (i 7) hereof in order to provi e funds to repay the
Canal Company Construction Advances and the Capital ized onstruction Advance
Interest to the Power Company.
(b) The.:aarties agree to solicit proposals for the Cons ruction Debt. The
sol icitation will be made using a term sheet format simi ar to that attached
in Exhibit 1, or as amended if approved by the Parti s. Timing for the
sol icitation will be within one year prior to or after the Estimated Completion
Date to obtain the most favorable terms and conditions, 0 as otherwise agreed
to by the Parties. The Power Company shall review and a prove the final term
sheet to be used for the solicitation, which approval, if he solicitation term
sheet is in substantially the form attached hereto as x ibit 1, shall not be
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unreasonably withheld.
(c) The Power Company shall have the right to approve the te s and conditions of
the Construction Debt secured by the Guaranty, which a roval shall not be
unreasonably withheld. The Power Company may withhold its pproval of the terms
and condi t ions of the Construction Debt if the term of t e Construction Debt
is for a peri od of 1 ess than twenty (20) years or if the erms and cond it ions
of the Construction Debt are otherwise financially disadva tageous to the Power
Company, as specifically set forth in writing to the Authorized Representatives.
(d) If the Construction Debt is incurred prior to the Proj ct Completion Date,
Capitalized Construction Debt Interest shall be inclu ed as part of the
Construct i on Debt from the date the Construction Debt is j ncurred to the
Estimated Project Completion Date. If the Project Comp1et on Date occurs prior
to the incurring of the Construction Debt, Post Project Com 1etion Date Interest
shall be paid by the Canal Compan i es to the Power Comp, ny pursuant to the
provi s ions of Section 5.5 hereof from the proceeds of the R ya 1 ty for the peri od
from the Project Completion Date to the date of incurring t e Construction Debt.
(e) The ob1 igation of each of the Canal Companies to repay t e Construction Debt
shall be several and not joint according to the ownership interests set forth
in Section 4.2. Anything in this Agreement to the contra y not withstanding,
the Royalty and the Incentive Royalty due from the Power C mpany under Section
5.1 and 5.3 hereof, or Net Benefi ts due from the Power Comp ny under Sect i on 5.2
hereof, shall be first used to reimburse the Power Compani for payment of the
Debt S~rvice Charge orahjfb:ther costs associated with th Construction Debt,
with the remaining balance, if any, of the Royalty and Inc ntive Royalty or Net
Benefits being credited by the Power Company to the Canal Companies in
accordance with the provisions of Section 5.11 or paid to he Canal Companies,
all pursuant to procedures estab 1 i shed by the Authori ze Representatives in
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year, to the extent remaining after satisfying e annual obl igations
of the Canal Companies under Section 5.9 with respect to the P t Project Completion
Date Interest, if any, or the ConstrlL,i-úll Debt, shall be redited against the
obl igation of the Canal Companies to pay the Pre-License Advan es, the Canal Company
Capital ized M tigation Cost Advances, the Canal Company Annua Mitigation Expenses
or the Leased Mitigation Water Costs,
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ARTICLE VI
AUTHORIZED REPRESENTATIVES
Section 6.1. Authorized Representatives. As a means of securing effective
cooperation and of dealing on a prompt and orderly basis with va ious administrative,
techn i ca 1, fi nanc i a 1, construct i on and operation subjects i ch mi ght ari se in
connection with performance under this Agreement and further, recognizing the need
to coordinate the construct i on of the Power Pl ant wi th the const uct i on of the Mi 1 ner
Dam Rehabi 1 i tat i on Project, the Power Company and each of the anal Compan i es shall
name an Authori zed Representative. Each Authori zed Represent t i ve shall be gi ven
authori ty by the Party or Part i es by whom he is des i gnated to act on thei r behalf
with respect to those matters herein provided to be resp nsibil ities of the
Authorized Representatives. The Parties shall promptly notify ach other in writing
of the designation of their Authorized Representative or any ubsequent changes in
such designation. The Parties shall each have the power to appoint one or more
alternate Authorized Representatives to act on specified occa ions with respect to
specific matters, as for example, legal, engineering or finan
Section 6.2. Responsibilities of Authorized Representatives.
(a) The respons i bi 1 it i es of the Authori zed Representat i ves to the Project
Completion Date shall be to:
(1) Establish and revise from time to time general polic es to be followed in
the administration of this Agreement prior to the Pro'ect Completion Date,
including, without 1 imitation, the construction of the Milner Dam
Rehabil itation Project, and, to the exte~it such pol cies are rel evant to
the subject matter of this Agreement, the constructi n of the Power Plant;
(2) Establish and revise from time to time general poli ies and practices to
be followed in the coordi nat i on of the construct i on 0 the Power Pl ant wi th
the construction of the Milner Dam Rehabil itation P oject;
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(3) Approve the plans and specifications with respec to the design and
construct i on of the Mi 1 ner Dam Rehabi 1 i tat ion Projec pursuant to Section
4.4 hereof, i ncl udi ng, the necessary interface wi t the canal system of
the Canal Companies contemplated in Section 4.4 her of;
(4) Approve, and from time to time amend and revis as necessary, the
Construction Budget pursuant to Section 4.5 hereof;
(5) Approve payment of the Costs of Construct ion;
(6) Revi ew and approve the determi nat i on of Capi ta 1 i zed Construction Advance
Interest pursuant to Section 4.5(b) hereof and he determination of
Capital ized Construction Debt Interest pursuant to S ction 5.9(b) hereof;
(7) Whenever necessary, assign amounts between Costs of C nstruction and costs
attributable to the Power Plant;
(8) Approve the award of the Construction Contract and ach contract with an
Equipment Supplier with respect to the Milner Dam Re abilitation Project;
(9) Approve progress payments and the final payment to t e Design Engineer and
the Construct i on Manager ;
(10) Approve progress payments and the final payment to the Construction
Contractor;
(11) Approve progress payments and the final payment to t Equipment Suppl ier;
(12) Approve resolution of claims as the result of cont acts with the Design
Engineer, Construction Contractor or Equipment Supp ier;
(13) Approve change orders and extra work orders to co tracts of the Design
Engineer, Construction Contractor or Equipment Sup'p ier.
(14) Approve, and from time to time amend and as necessary, the
Capitalized Mitigation Cost Budget pursuant 4.6 hereof and
payment of the Capital ized Mitigation Costs;
(15) Approve the initial Annual Mitigation Expense Budge pursuant to Section
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4.7 hereof;
(16) Allocate insurance costs to the Milner Dam Rehabi1it ion Project pursuant
to Section 4.13 hereof;
(17) Review the calculation of the Cost(s) of Constructio and the Capital ized
Construction Advance Interest for purposes of Secti n 5.9 hereof;
(18) Establish from time to time the Estimated Comp1eti n Date and determine
the Project Completion Date, based upon the recorn ndation of the Power
Company;
(19) Do such other th i ngs as are spec i fi call y assi gn d to the Authori zed
Representat i ves by the Parties pri or to the Project Comp 1 et i on Date.
(b) The respons i bil it i es of the Authori zed Representative after the Project
Comp1 et i on Date shall be to:
(1) Consult with respect to and to establish and from ti e to time revise any
general policies to be followed in the administrat on of this Agreement
subsequent to the Project Completion Date, incl ding maintenance of
insurance by the Parties on the respective of the Project
represented by their respective ownership interests
(2) Approve, and from time to time amend and revise as ecessary, the Annual
Mi t i gat i on Expense Budget pursuant to Section 4.7 h reof;
(3) Review the Calculation of Net Benefits for purposes of Section 3.5 hereof
:;&"
and of Section 4.11 hereof, if applicable, under t e option selected by
the Canal Companies;
(4) Review of the calculation of the amounts due und r the Royalty under
Sect i on 5.1 hereof, and to the extent app 1 i cab 1 e und r Sect ion 5.2 hereof;
(5) Review the calculation of the Project generation 0 electric energy for
purposes of calculating the Incentive Royalty under Section 5.3 hereof;
(6) Approve the schedule for the repayment of Pre-Lice se Advances pursuant
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to Sect i on 5.4 hereof;
(7) Rev i ew the procedures for use of the proceeds of the Royalty and the
Incentive Royalty or Net Benefits as credits again t the obligations of
the Canal Companies to pay Pre-License Advanc s, Canal Companies
Capitalized Mitigation Cost Advances or Canal Comp ny Annual Mitigation
Expenses, Leased Mitigation Water Costs or any ombination thereof,
pursuant to Section 5.11 hereof;
(8) Review the calculation of the interest due on Canal Company Capitalized
Mi t i gat i on Cost Advances and the schedul e of i nsta 1 ments of repayment
pursuant to Section 5.6 hereof;
(9) Establ ish the date, or dates, for payments of the anal Company Annual
Mi tigati on Expenses;
(10) Review the calculation of the obl igation of Canal Co panies to pay Leased
Mitigati on Water Costs;
(11) Establish procedures for payments by Canal Companies of Leased Mitigation
Water Costs pursuant to Section 5.8 hereof;
(12) Establish procedures for crediting the Royalty and he Incentive Royalty
or Net Benefits for payment of any Post Project Com letion Date Interest
and the Debt Service Charge pursuant to Section 5.9 hereof;
(13) Establ ish procedures for determining Bypass Flows, T tal Flows and Target
Flows pursuant to Section 4.9 hereof; and
(14) Do such other things as are specifically assigne to the Authorized
Representatives by the Parties after the Project Co pletion Date.
Section 6.3. Procedures of Authorized Representatives. The stablishment of any
procedure or practice or any other act i on or determi nat i 0 by the Authori zed
Representatives under this Articl e VI shall be made by unanimou agreement to become
effect i ve when signed by each of the Authori zed Representat i es. The Authori zed
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Representat i ves shall have no authori ty to modi fy any of th
Agreement, nor shall they establish policies, rules, or regul
provi sions of thi s
ions which confl ict
wi th the provi s ions of the License.
Section 6.4. Dispute Resolution. The Authorized Representatives shall exercise
their best efforts to arrive at an amicable settlement of any d spute (including any
deadlock) which may arise with respect to any matter contemp1at d by this Agreement.
If, however, no such settlement is reached in connection with a y such dispute, then
upon written notice by any Party, a three member panel compri ed of the President
of the Power Company and the President of each Canal Company sha 1 be formed and such
panel shall exercise its best efforts to arrive at an amicab1 settlement of such
dispute. If, however, no such settlement is reached, then up n written notice by
any Party such dispute may be settled by arbitration in ccordance with the
prov is ions of Sect ion 12.1 hereof, or as otherwi se provi ded i Art i c 1 e ix hereof.
ARTICLE VII
SPECIAL COVENS
Sect i on 7. 1 . Construct i on Records Requi red to be Ha i nta i ned.
(a) The Power Company shall at all times maintain and appropriately preserve books
of account and appropriate records containing detailed entries of the Pre-
License Advances, the Costs of Construction and the Ca ita1 ized Mitigation
Costs. Account i ng for all Pre- License Advances, Costs of Construct i on and
Capitalized Mitigation Costs shall be in accordance with the requirements of
the Federal Power Act, if any, and the requirements of t Commission as such
requirements arr modified by the Commission from time 0 time. The basic
records and documents re 1 at i ng to the construct i on of the Mi 1 ner Dam
Rehabil itation Project, the Costs of Construction and the C pital ized Mitigation
Costs shall be made available to the Authorized Represen tives, to the Canal
Companies and to the Comission for inspection during re u1ar business hours
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upon reasonable not ice and request therefor.
(b) Within 120 days after each calendar year during the peri d of construction of
the Project and upon the Project Completion Date, the Pow r Company shall have
an audit made of the books of account relative to the Cost of Construction and
the Cap i tal i zed Mi t i gati on Costs, the expense of wh i ch sh 11 be included in the
Costs of Construction. Such audits shall be made by an ndependent certified
pub 1 i c accountant, 1 i censed, regi stered or ent it 1 ed to pact i ce as such under
the 1 aws of Idaho. A copy of each such audi t shall be urni shed promptly to
the Canal Compan i es.
Sect i on 7.2. Books nd Records
Mitigation Water Costs.
(a) The Power Company shall maintain books to record the Annua Mitigation Expenses
and Leased Mitigation Water Costs in accordance with Co ission Accounts, and
as reported in Commission Form I under "Hydroe1ectr'c Generating Plant
Statistics". The basic records and documents recording he Annual Mitigation
Expenses and the Leased Mi t i gat i on Water Costs shall be ade avail ab 1 e to the
Authorized Representatives, to the Canal Companies and 0 the Commission for
inspection during regular business hours upon reasonab1 notice and request
therefor.
(b) The Power Company shall have an audit of the books of ac ount rel ative to the
Annual Mitigation Expenses and the Leased Mitigation Wa er Costs made within
120 days after each calendar year, the expense of which au its shall be included
as part of the Annual Mitigation Expenses and the Leased M'tigation Water Costs
to the extent app 1 i cabl e. Such audi ts shall be made by an ndependent cert i fi ed
pub 1 i c accountant, 1 i censed, reg i stered or ent it 1 ed to pact ice as such under
the laws o'fldaho. A copy of each such audit shall be urnished promptly to
the Canal Compan i es .
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Sect ion 7.3. Comp 1 i ance wi th Laws, Rul es and Regul at ions. Th Canal Compan i es and
the Power Company shall, in the performance of their respecti e obligations under
this Agreement and the License, comply fully with all laws, r les and regulations
perta in i ng to the construct ion, operation and maintenance of the Project and the
subject matter of this Agreement, including, particularly, th Federal Power Act,
the Federal Energy Regulatory Act, the Idaho Public Utilities A t, and the rules and
regulations of the Commission and the Idaho Public Utilities Co mission, and, to the
extent that the operations of any of the Canal Companies or t e Power Company may
be subject to the jurisdiction of any state or federal regulato y agency, such other
terms of all valid and applicable orders, rules and regulations f any such agencies.
Th is Agreement is subject to the 1 aws of the State of Idaho a dis subject to the
approval, to the extent required by law, of any state or feder 1 regulatory agency
having jurisdiction thereof. All costs and expenses of the Ca al Companies and the
Power Company incurred prior to the Project Completion Date in ffecting compl iance
with any such laws, rules, regulations and orders which app y to the design or
construct i on of the Mi 1 ner Dam Rehabi 1 i tat i on Project shall be deemed to be a Cost
of Construction. All costs and expenses of the Canal Companies nd the Power Company
in effecting compliance with any such laws, rules, regulations a d orders which apply
to construction, operation and maintenance of the Power Plant hall be deemed to be
an expense to be paid for by the Power Company, except to the extent allocable to
the Canal Companies as part of the Annual Mitigation Exp nses or the Leased
Mi t i gat i on Water Costs. The Canal Camp an i es, before i ncurri g any such costs or
expenses, shall consult with the Power Company, and such costs and expenses must be
approved by the Authori zed Representatives.
Sect ion 7.4. Cor orate Exi tence of Power Com an
During the Original Term and any Renewal Term of this Agreeme t, the Power Company
shall maintain its corporate existence, shall continue to be a corporation either
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organized under the laws of or duly qualified to do business as a foreign corporation
in the State of Idaho, and will not dispose of all or substanti lly all of its assets
nor conso1 idate with nor merge into another corporation un1es the acquirer of its
assets or the corporation with which it shall consolidate 0 into which it shall
merge shall be a corporat i on organ i zed and exi st i ng under 1 aws of one of the
States of the United States of America and shall be qua1ifi d and admitted to do
business in the State of Idaho, shall be, or as a result of he transaction shall
become, a public utility, shall have a net worth immediatel subsequent to such
acquisition, conso1 idation or merger at least equal to that of the Power Company
immediately prior to such acquisition, consolidation or merge, and shall assume in
writing all of the obligations of the Power Company herein.
Sect i on 7.5. ADDrova 1 s .
(a) Whenever, under the provi s ions of th is Agreement, the pprova 1 of the Power
Company is required or the Canal Companies, or any of the are required to take
some act i on at the request of the Power Company, such ap ova 1 or such request
shall be made by the Authorized Power Company Representa ive unless otherwise
specified in this Agreement, and the Canal Companies, 0 any of them, or the
Lender shall be authori zed to act on any such approval or equest, and the Power
Company shall have no complaint against the Canal Compa ies, or any of them,
or the Lender as the result of taking any such action.
~'.a"~
(b) Whenever under the provisions of this Agreement the
Companies, or either' of them, is requested or the Power Company is requested
to take some action at the request of the Canìl tompanie , or either of them,
such approval or such request shall be made by the respe i ve Authori zed Canal
Company Representative or Representatives, unless othe 'se specified in this
Agreement, and the Power Company or the Lender shall be authori zed to act on
any such approval or request, and the Canal Companies, or either of them, shall
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have no complaint against the Power Company or the Lender s a result of taking
any such act ion.
ARTICLE VII I
ASSIGNMENT
Sect ion 8. 1 . Cond it i on of As s i gnments by Power Company. Th i Agreement may be
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ass i gned as a whole or in part, by the Power Company wi th the consent of the Canal
Companies, which consent shall not be unreasonably withheld, subject, however, to
each of the fo 11 owi ng cond it ions:
(1) The assignee of the Power Company shall expressly agree in writing to
perform all of the obligations of the Power Company h reunder to the extent
of the interest ass i gned.
(2) The Power Company shall, within thirty (30) days a ter del ivery of each
such assignment, furnish or cause to be furnished t the Canal Companies
and to the Lender a true and correct and complete c py thereof.
Section 8.2. Assignments or Dissolution by Canal Companies.
(a) The Canal Companies may each assign their respective int rests in, and pledge
any moneys receivable pursuant to this Agreement to, the L nder as security for
payment of the Debt Service Charge, but each such assig ment or pledge shall
not affect or impair the rights of the Power Company und r this Agreement.
(b) If duri ng the term of th is Agreement or any extens i on or renewal thereof, the
Canal Companies desire to assign or transfer their inter st in this Agreement
or any Project facility, the Power Company shall have t e right, but not the
obl igation, to purchase said interest at the same price th',t. the Canal Companies
could receive from a third party. The Power Company will ave ninety (90) days
from the receipt of written notification of a third pa y offer in which to
exercise this right. If the Power Company does not exer ise this right, then
the Canal Companies shall be free to transfer said intere t to the third party
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subject to said third party's agreement to comply fully w th all of the terms,
conditions and duties imposed by this Agreement.
(c) Each of the Canal Compan i es, to the extent that each may 1 ega 11 y so covenant,
covenants and agrees wi th the Power Company and wi th th other Canal Company
and the Lender that it will not dissolve or otherwise aba don its existence so
long as th is Agreement is in exi stence wi thout the wri tte consent of the Power
Company, the other Canal Company, and so long as onstruct i on Debt is
outstandi ng, wi thout the wri tten consent of the Lender.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
Section 9.1. Events of Default Defined. Uncontrollable Force.
(a) The following shall be nevents of defaultn under this Ag eement and the terms
n events of defaul t n or ndefaul ts n shall mean, whenever hey are used in thi s
Agreement, anyone or more of the fo 11 owi ng events:
(1) Failure by a Party to pay all or any part of any amou t required to be paid
by it under the provisions of Article V hereof at the times and places
specified therein and continuance of said failure with respect to any
default for a period of sixty (60) days after notice of such failure given
under the provisions of Section 9.2 hereof; or
(2) Failure by a Party to observe and perform any c venant, condition or
agreement on its part to be observed or performed h reunder for a peri od
of sixty (60) days after written notice, specify ng such failure and
requesti11gthat it be remedied, given pursuant to the provisions of Section
9.2 hereof to such Party by one or more of the P rties not in default
unless the alleged default is cured or disputed as c ntemplated in Section
9.2 hereof; or
(3) The dissolution or liquidation of a Party; or the iling by a Party of a
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voluntary petition in bankruptcy; or failure by a P rty promptly to 1 ift
or bond any execution, garnishment or attachment 0 such consequence as
wi 11 impair its abi 1 i ty to make any payments under tis Agreement; or the
filing of a petition or answer proposing the entry 0 an order for relief
by a court of competent juri sdi ct ion against a Party nder Ti t 1 ell of the
United States Code, as the same may from time to time e hereafter amended,
or proposing the reorganization, arrangement or de t readjustment of a
Party under the provisions of any bankruptcy act or nder any similar act
which may be hereafter enacted and the failure of sa d petition or answer
to be discharged or den i ed wi th in 90 days after the f '1 i ng thereof; or the
entry of an order for rel ief by a court of competen jurisdiction in any
proceeding for its liquidation or reorganization u er the provision of
any bankruptcy act or under any similar act which may e hereafter enacted;
or an assignment by a Party for the benefit of its cr ditors; or the entry
by a Party into an agreement of composition with it creditors (the term
"dissolution or liquidation of a Party,. as used in this subsection (3),
sha 11 not be construed to i ncl ude the cessation of th corporate exi stence
of a Party resulting either from a merger or consol i ation of a Party into
or with another corporation or a dissolution or 1i uidation of a party
following a transfer of all or substantially all its ssets as an entirety,
under the conditions permitting such actions conta 'ned in Article VIII
hereof); or
(4) A transfer of a PC.I ~y! S interest to any purchase from a mortgage or
secured party having real ized upon its security or therwise; or
(5) A purported termination, transfer, sale, assignment, ledge or encumbrance
of a Party's interest in th is Agreement, except as ermi tted here in.
(b) The provisions of Section 9.1(a)(2) are subject to the 1i itations that if, by
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reason of Uncontrollable Forces, a Party is unable, in hole or in part, to
carry out its agreements on its part herein contai ed, other than the
obligations of the Party to make the payments required in rtic1e V hereof, the
Party shall not be deemed to be in defau1 thereunder du i n9 the conti nuat i on
of such inability. Nothing hereinlcontained shall be c nstrued to require a
Party to settle on an unreasonable basis any strike or 1 bor dispute in which
it may be involved which directly affects the Project. I a Party is rendered
unable to fulfill any obligation by reason of Uncontro1l ble Forces, it shall
exercise due diligence to remove such inability with all reasonable dispatch.
Section 9.2. Remedies for Defaults.
(a) If a Party bel ieves that another Party has committed an vent of default, the
nondefau1 t i ng Party shall notify the other Party in wri i ng, descri bi ng the
alleged default, and if the alleged default is not cure or disputed within
sixty (60) days from the date of such notice, it shall at t e expiration of such
period constitute a default under Section 9.1 hereof. If Party in good faith
disputes in writing to the nondefaulting Party or Part es the existence or
extent of an alleged default as to which a notice has been given as above
provided, that Party shall within the 60-day period from t e date of the written
d i sputat ion nevertheless make such payment or perform su h ob 1 i gat i on to cure
the alleged default. Upon resolution of such dispute by he Parties, pursuant
to arbitration under Section 12.1, or by a court of compe ent jurisdiction, as
the case may be, then the payments, if any advanced or m de among the Parties
as in, thi s subsection (a) provi'ded, sha 11 be adj sted appropriately.
Notwithstanding the foregoing, the defaulting Party or Parties shall remain
1 iable to the Party or Parties not in default and to he creditors of the
Project for obligations incurred prior to the any such default.
, Payments not made when due by either Party shall bear i terest until paid at
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the highest lawful rate.
(b) Except as otherwise provided in subsection (a), the Parti s shall have the right
from time to time to begin and maintain successive procee ings in law or equity
against the Party or Parties in default to enforce any of he provisions of this
Agreement to the extent permitted by law, including but not 1 imited to,
injunctive relief in the case of the violation or threat ned violation of this
Agreement, or a decree concerning performance of any of he provisions of this
Agreement, for a judgment in an amount equal to any payme ts to and owi ng under
Art i c 1 e V, or any other remedy.
(c) No right or remedy in this Section 9.2 herein conferred u on or reserved to the
Parties is intended to be exclusive of any other right 0 remedy, and each and
every right and remedy shall be cumulative and in addition to any other right
or remedy gi ven hereunder, or now or hereafter 1 ega 11 exi st i ng, upon the
occurrence of any event of default to which this Section 9.2 applies. Failure
of a Party to ins i st at any time on the stri ct observan e or performance by a
Party or Parties of any of the provisions of this Agreeme t, or to exercise any
right or remedy provided for in this Agreement shall not impair any such right
or remedy nor be construed as a waiver or re1 inquishment t ereof for the future.
Receipt by a Party of any payment required to be made nder Article V hereof
with knowledge of the breach of any provisions of this greement shall not be
.:a"!
deemed a waiver of such breach.
(d) If any proceedings shall be brought for the enforcement r any right or remedy
provi~ed for in this Section 9.2 in which sh~l be det rmined that any event
of default under Section 9.1 to which this Section .2 is app1 icable has
occurred and was continuing at the time of commencement thereof, the Party or
Parties in default shall pay to the other Parties all expenses incurred in
connection therewith, including without limitation, reas nable attorney's fees
-51 -
EXBl2CA NO IP-EPACKW. IPC
PAGE 57 Of 70
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and expenses.
Section 9.3. No Additional Waiver Implied by One Waiver. An waiver by a Party of
its ri ghts wi th respect to an event of defaul t under thi s Agre ent, or wi th respect
to any other matter arising in connection with this Agreemen shall not be deemed
to be a waiver with respect to any other matter arising in connection with this
Agreement. No delay in asserting or enforci ng any ri ghts here nder shall be deemed
a wa i ver of such ri ghts.
ARTICLE X
LIABILITIES AND DAMAGES
Section 10.1. Liabilities. Any loss, cost, liability, damag or expense incurred
by any Party resulting from the maintenance, reconstruction or repair of any portion
of the Project because of injury to any individual, or because f damage to property
of one or more of the Part i es or of other persons, to the tent not covered by
co 11 ect i b 1 e insurance , shall be chargeable by the Authori zed R present at i ves to the
Party or Parties based solely upon the ownership interest in any Project facility
which is basis for any such loss, cost, liability, damage or xpense.
Section 10.2. Damage to the Milner Dam. In the event that he Milner Dam or any
portion thereof suffers damage resulting from causes other tha ordinary wear, tear
or deterioration to the extent that the estimated cost of repa r as agreed to by the
Authorized Representatives exceeds the estimated available' roceeds, if any, of
insurance, the Part i es wi 11 proceed as fo 11 ows:
(a) If the Parties agree to repair the Milner Dam or the dam ged portion thereof,
the Authori zed Representatives shall proceed to repa i r"tll Mil ner Dam, and each
Party shall pay its percentage share of the cost thereof b sed upon said Party's
ownership interest, if any, in the facil ity or facili ies which have been
damaged.
(b) If the Parties do not agree that the Milner Dam or the d mage portion thereof
-52-
EXIBl2
CASE NO IPC-EPACK'. IfI
PAGE 58 Of 70
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shou1 d be repa i red any Party or Part i es may proceed to epa i r the Mi 1 ner Dam
or the damaged port i on thereof, and thereafter submi to arbi trati on in
accordance with the provisions of Section 12.1 hereof, th question of whether
pursuant to Prudent Ut i 1 i ty Pract ices the Mi 1 ner Dam or the damaged port ion
thereof will be repaired. The Party or Parties failing 0 participate in the
cost of the repair of the Mi 1 ner Dam, or the damage por i on thereof, wi 11 be
ob1 igated to pay a percentage share of the cost thereof ba ed upon the ownership
interest of such Party or Parties in the facility or facilities which have been
repa ired, whereupon each such Party shall pay such amo nt as determi ned by
arbitration within thirty (30) days of the arbitration award or during such
other period as may be mutually agreed upon by the Parti s.
Section 10.3. No Ownershi Interest b Virtue of Article V P ents. For purposes
of this Article X, the Canal Companies shall not be deemed 0 have any ownership
interest in the Power Plant by virtue of their obligation und r Article V to repay
the Canal Company Capital ized Mitigation Cost Advances or to ay the Cana1 Company
Annual Mitigation Expenses. For purposes of this Article X, t Power Company shall
not be deemed to have any ownership interest in the Milner D m or any appurtenant
canal s of the Canal Companies by virtue of its obl igat ion un er Article V to make
the Canal Company Construct i on Advances or to pay the Debt Se vi ce Charge pursuant
to the Guaranty.
ARTICLE XI
TERM
Section 11. 1. Ori gina' Term. Thi s Agreement shall become effect'fI:l?, upon its
execution by the Canal Companies and the Power Company and, unless extended as
provided in Section 3.5 hereof, the Original Term of this Agr ment shall terminate
on November 30, 2038, being fifty (50) years from the first day of the month in
wh i ch the License was issued.
-53-
EXBI 2
CA NO. 1f-€PAKW, If'
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Section 11.2. Renewal Term. If, after the expiration of th initial term of the
Li cense the License is cont i nued or renewed, th is Agreemen shall thereupon be
cont i nued in effect during such peri od of continuance or for a Renewal Term or Terms
for a peri od or peri ods not exceed i ng such peri ad of cant i nua ce or renewal of the
License.
Section 11.3. Payments during Renewal Terms. Subject to the rovisions of Section
3.5 hereof the Canal Compani es and the Power Company shall m tua lly agree to such
annua 1 royalty payments to be made by the Power Company to the ana 1 Compan i es duri ng
each Renewal Term as shall be embodied in one or more suppleme ts to this Agreement.
ARTICLE XII
MISCELLANEOUS
Section 12.1. Arbitration.
(a) Any dispute, controversy or claim arising among the Par ies involving any of
the items, covenants and conditions of this Agreement may be submitted to
arbitration by the Parties in accordance with the rules hen obtaining of the
American Arbitration Association, subject to the provi ions of this Section
12. i, and judgment upon the award rendered by the arbi tra ors may be introduced
in any court havi ng juri sdi ct i on thereof.
(b) If the Parties agree to submit any dispute, controversy or claim to arbitration,
each Party or group of parties'representing one side f the dispute shall
designate an arbitrator. The arbitrators selected by the Parties shall request
from the American Arbitration Association ali st of arbitrators who are
qual i fied and e1 igib1e to serve as the third arbitrator The arbitrators so
selected shall meet within twenty (20) days following the r selection and shall
select an additional arbitrator from the list so obtai ed from the American
ArbitratiònAssociation. If the arbitrators selected by the Parties, as above
provided, shall fail to select an additional arbitrator from such list, then
-54-EXIBl2CA NO.IP~pAC, IPC
PAGE60Ol70
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a judge of the District Court of the United States for teState of Idaho or
such tribunal as may at the time be the successor of such Court, shall select
the third arbitrator. The judge shall select an arbit ator from the 1 ist
submitted. All arbitrators shall be persons skilled and a expert in the field
which gives rise to the dispute, and no person shall be eli ible for appointment
as an arbi trator who is an offi cer or an employee of any of the Part i es to the
dispute or who is otherwise interested in the matter to be arbitrated. If,
pending any arbitration under this Agreement, the arbitra or, or successor or
substitute arbitrator shall for any reason be unable or u willing to act, his
successor shall be appointed as he was appointed, an such successor or
substitute arbitrator as to all matters then pending shal act the same as if
he had been originally appointed as an arbitrator. The aw rd of the arbitrator
so chosen shall be final and binding upon all Parties, nd if necessary and
appropri ate in the premi ses, the arbi trator may make an ord r requi ri ng speci fi c
performance of any of the terms and cond it ions of sa i award. The award
rendered by the arbitrator shall be final, and judgment m be entered upon it
in any court having jurisdiction thereof. Each Party sh 11 bear the expense
of prepari ng and present i ng its own case, and the expen e of the arbi trator
shall be equitably divided between the Parties by the arb 'trator.
Section 12.2. Applicable laws. The Parties in the performance of their ob1 igations
hereunder shall conform to all applicable laws, rules, regu1atio s and administrative
orders. Thi s Agreement ~ha 11 be construed under the 1 aws of the State of Idaho.
This Agreem~nt is subject to the approval of any state or fede a1 regulatory agency
having jurisdiction thereof.
Section 12.3. Notices and Computation of Time. Any notice or demand by any Party
under this Agreement shall be deemed properly given if mailed postage prepaid and
addressed to each of the other Parties at the addresses indic ted below for those
-55-
EXIBI 2
CASE NO IPC-EPACKWN, IPC
PAGE 61 Of 70
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Parties. In computing any period of time from such notic , such period shall
commence at 12:01 a.m. on the date mailed. The designations of the name and address
to which any such notice or demand is directed may be changed at any time and from
time to time by any Party by giving notice as above provided. he following persons
are designated and appointed the representatives of the fo110 ing Parties:
Party Addressee
Idaho Power Company Vice President
of Power Supply
Address
1220 We t State
Boise, daho 83702
North Side Canal Company President 921 Nor h lincoln
Jerome, Idaho 83338
163 Sec nd West
Twin Falls, Idaho 83301
Twin Falls Canal Company President
Any notice, demand or request provided for in this Agreement, or given or made in
connection with this Agreement to or upon the lender snall be eemed to be properly
given or made if del ivered or sent by registered mail to the principal corporate
offi ce of the lender.
Section 12.4. Additional Documents. Each Party upon request by the other Parties
shall make, execute and del iver any and all documents re sonably required to
imp 1 ement the terms of th is Agreement, inc 1 ud i ng the Guaranty
Section 12.5. Entire Agreement. This Agreement constitutes he entire agreement
between-~e Parties relating to the subject matter hereof, and supersedes any
previ ous agreements or understandi ngs.
Sect ion 12.6. SUDD 1 ements and Amendments. Pri or to the i ncurri ng of the
Construction Debt this Agreement may be supplemented
hereto. Subsequent to the incurring of the Construction D bt and prior to the
payment in full (or provision for the payment thereof having be n made in accordance
with the provisions thereof) of the Construction Debt, this greement may not be
effectively amended, changed, modified, altered or terminate without the written
-56-EXIBl2
CA NO 1f!-EpAC. IfI
PAGE 62 Of 70
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consent of the Lender, wh i ch consent shall not be unreasonab 1 wi thhe 1 d.
Section 12.7. Severability. In the event any provision of th s Agreement shall be
held invalid or unenforceable by any court of competent juris iction, such holding
shall not inval idate or render unenforceabl e any other provi sion hereof.
Section 12.8. Execution in Counterparts. This Agreement may e executed in several
counterparts, each of which shall be an original, and all of w ich shall constitute
and be one and the same instrument.
Section 12.9. Captions and Headings. The captions and headi s appearing in this
Agreement are inserted merely to fac i 1 i tate reference and shall have no beari ng upon
the interpretation of the provisions of this Agreement.
1H WITNESS WHEREOF, the Canal Companies and the Powe Company have caused
th is Agreement to be executed in the i r respect i ve names and th i r respect i ve seals
to be hereunto affixed and attested by their duly authorized officers, all as of
the date fi rst above wri tten.
IDAHO POWER COMPANY
ByIts
ATIEST:
~is~lM.
-57-
EXIBf2
CA NO, If'-€pAC, IPC
PAGE 63 Of 70
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ATIEST:
~ls=2~
-58-
NORTH SIDE CANAL COM ANY t lIMITED
By
Its
EXIBr2
CA NO IPC-EPAcKWN. IPC
PAGE 64 Of 70
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ATTEST:
ByIts i. . ',., Lv,
~rJJ!:i; J~/
-59-
EXBl2CA NO, IPC-E'PAC. IPC
PAGE6SOf70
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I SCHEDULE I
I MILNER ROYALTY COMPUTATION
Royalty · $5,638.000 + 0,5 x (Cost of Construction) = $10.138,000
(Assuming Cost of Construction is $9,000,000 and
I Construction Debt Interest Rate is loi) - Re.."aining Royalty is $1.138,000
Present Value
Factor Debt Servi ce Charae Rovalty Rovalty
I
($9 Hil ion)(Present Value)(Present Value)Year (10%)(20 yrs, loi)(loi)(10X)
Co 1 ui Number 2 3 4 5
I
CoL.1 x Col 2 CoL.1 x Col, 4
1 0,9091 $1.057,137 $961.033 $0 $0
2 0,8264 1. 057 ,137 873,667 0 0
3 0.7513 1.057,137 794,242 0 0
I
4 0,6830 1.057,137 722,039 0 0
5 0.6209 1,057,137 656,399 0 0
6 0.5645 1.057,137 596,726 0 0
7 0,5132 1. 057,137 542,478 0 a
I
8 0,4665 1.057,137 493,162 0 0
9 0,4241 1.057,137 448,329 0 0
10 0,3855 1. 057 ,137 407,572 0 0
11 0,3505 1,057,137 370,520 0 0
12 0,3186 1.057,137 336,836 0 0
I
13 0.2897 1.057,137 306,215 0 0
14 0,2633 1.057,137 278,377 0 0
15 0,2394 1.057,137 253,070 0 0
16 0,2176 1.057,137 230,064 0 0
I
17 0,1978 1.057,137 209,149 0 0
18 0,1799 1,057.137 190,135 0 0
19 0,1635 1.057,137 172,850 0 0
20 0,1486 1,057.137 157.137 0 0
21 0,1351 550.000 74,322
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22 0,1228 550,000 67,565
23 0,1117 550,000 61,423
24 0,1015 550,000 55.839
25 0,0923 550,000 50.763
I
26 0.0839 750,000 62,929
27 0,0763 750,000 57,208
28 0,0693 750,000.52.008
29 0,0630 750,000 47,280
30 0,0573 750,000 42.981
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31 0,0521 1,000,000 52.099
32 0,0474 1.000.000 47,362
33 0.0431 1.000,000 43,057
34 0,0391 1,000,000 39,143
I
35 0,0356 1.000,000 35,584
36 0,0323 1.300,000 42,054
37 0,11294 1,300.000 38,231
38 0,0267 1.300,000 34.755
i
39 0,0243 1.300,000 31.596
40 0,0221 1.300,000 28,723
41 0, G2t'ü 1,750.000 35,151
42 0,0183 1.750.000 31.955
43 0,0156 1.750.000 29.050
i
44 0,0151 1.750.000 2E,403
45 0,0137 1.750.000 24,009
46 0,0125 2,125.000 26.503
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TOTALS S21. 142,732 S9.090,000 S28.875,000 S1.138,000
-60-
EXIBI 2
CA NO IPC.£PAcK\N. IfI
PAGE 66 Of 70
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.. c -.
Month
1989
January
February
Harch
Apri 1
Hay
June
July
August
Septemer
October
November
Decemer
Total For the Year
Scheule II
Costs of Construction Advanced by Powr
Comanv prj or to execut; on of Agreemnt
Hem:Breakdo of Total Costs:
Months Total For Interest
Charaes Interest The Month Rate (%)oescri pt; on Amunt
0.00 Land $5.025,27
0,00 Ho Offi ce Engi neeri ng 28.901.59
$1,103,89 $4,54 $1.108,43 9,87 Ho Offi ce Other Dept 3.865,35
2.120,79 18,18 2.138,97 10,06 Field Office Cost 10.014,47
6.957,30 54,93 7.012,23 9.80 Contract Costs 397.198,51
38.924,03 240.25 39.164.28 9,70 Receivables 0,00
44,825,97 567,51 45.393,48 9.48 Adi n. Legal. Interest 23.663,77
174,692,46 1,385,96 176,078,42 9,13
73,682,96 2,333,67 76,016.63 9,10
51.636,94 2,817,22 54,454,16 9,07 $468 i 668.96
64,156,27 3,146,09 67,302,36 8,71
$458.100.61 $10.568.35 $468 . 668 . 96
.ar'~ "'.:
':""..;"
-62-
EXBl2
CA NO IPC-EPAKWN. IPC
PAGE 68 Of 70
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'( .. ..
.EHIBIT 1
SUMMARY OF TERMS
MILNER DAM REHABILITATION PROJECT
Long - Term Debt Offeri ng
The Parties:
Twin Falls Canal Company, a corporation domiciled in and authorized to
do business in the State of Idaho, with its principal business office
located in Twin Falls, Idaho.
North Side Canal Company, Limited, a corporation domiciled in and
authorized to do business in the State of Idaho, with its principal
office located in Jerome, Idaho.
Idaho Power Company, a corporation domi ci 1 ed in and authori zed to do
business in the State of Idaho, with its principal office in Boise,Idaho. '
The Project:
The Mi 1 ner Dam Rehabn i tat i on Project is the program undertaken by the
parties to reconstruct, rehabilitate and improve the Milner Dam in
accordance with Federal Energy Regul atory Commi ssion (FERC) License for
Project No. 2899 (attached). The Milner Dam includes the diversion
structure located on the Snake River near Twin Falls, Idaho, together
wi th all appurtenant spi 11 ways, canals, headworks and' faci 1 it i es owned
and operated for irrigation purposes by the Twin Falls and North Side
Canal Companies and American Falls Reservoir District NO.2 as
rehabn i tated.
The Issue:
Term:Prcposa1 s for long-term debt are sol icited for ternis of
20 to 30 years. The pr"~?'ties prefer the longer term, but
are sensitive to any iriLt.rest rate differential whi.ch may
exist and will consider shorter term proposals with an
interest rate advantage.
A Sinking Fund structure with approximately equal annual
payments including principal and interest.
Idaho Power Company wi 11 uncond it i ona 11 y guarantee
payment direct 1 y to the 1 ender /bondho 1 der of the
-63-
Form:
Security:
EX2CA NO lPC~PACKW, IPCDA~~rv7n
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pri nci pa 1 and interest on the Long-Term Debt to be issued
by the Twin Fall s and North Side Canal Companies pursuant
to an Agreement Regarding the Ownership, Construction and
Operation of The Milner Hydroelectric Project (FERC
No. 2899) by and between the parties (attached), subject
to negoti ation and acceptance of the loan documents
descri bed under Loan Documentation.
Pri nci pal
Amount: Not to exceed the cost of the Mi 1 ner Dam Rehabi 1 i tat ion
Project (incl~ing capitalized interest) estimated at
S
Date: Proposed date of issuance, estimated to be
Interest The parties desi re an interest rate (of 10% or lower)Rate: fixed for the term of the loan.
Closing: Proposed date of closing.
Redemption The parties will favor a proposal which contains one
Provi s ions: or more prepayment opt ions duri ng the term.
Loan
Documentation: The parties will include additional terms and conditions
in the solicitation which are considered important to the
Idaho Power Company 's uncond it i ona 1 guarantee of thedebt. The parties intend to jointly participate in
negotiating the loan documents with the selected lender
to assure approval by a 11 part i es of the fi na 1 loan
package.
-64-
EXIBI 2
CA NO. IPC-EPACKWN. IfI
PAGE 70 Of 70
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BEFOR Tl
DAH PULI UTS COWSION
CASE NO. 1P-E-98
DAH POWE CQ AN
"EXIT 3
Idaho Public Utilties Commission
Qfíce of the Secretary
RECEIVED
SEP 241990
Boise. ldahO
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IDAHO POWER COMPANY
MILNER HYDROELECTRIC PROJECT
POWERHOUSES
l
MAIN POWERHOUSE:
DIRECTS:
GENERAL CONSTRUCTION CONTRACTS
PROCUREMENT CONTRACTS
OTHER CONTRACTS & FACILITIES
TOTAL DIRECTS
INDIRECTS
OVERHEADS
AFUDC
TOTAL MAIN POWERHOUSE
POWERHOUSE AT DAM:
DIRECTS:
GENERAL CONSTRUCTION CONTRACTS
PROCUREMENT CONTRACTS
OTHER CONTRACTS & FACILITIES
TOTAL DIRECTS
INDIRECTS
OVERHEADS
AFUDC
TOTAL POWERHOUSE AT DAM
::,a":
TOTAL MILNER POWERHOUSE COSTS
TOTAL COMMITMENT ESTIMATE
(1) ESTIMATE STATED IN COSTS AT COMPLETION.
FIGURES ARE NOT ROUNDED.
(1 )
PROJECT
ESTIMATE
(x 1 ,000)
$24,861. 7
$18,224.2
$ 1,414.3
$44,500.2
$ 293.6
$ 7,718.7
$ 5,804.8
$58,317.3=====...==
$ 559.8
$ 786.7
$ 80.0
$ 1,426.5
$ 456.9
$ 133.2
$ 2,016.6....===_.
$60,333.9
1.05
$63,350.6..........
EX8I3
CASE NO IPC-EPAC,lfI
PAGE 1 OF1
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I -:-1989-~
PAlOS
ACCUW 30TR
8/31. 9/38 40TR 10TR
I
(IN THOUSANDS OF DOllARS)---
TOTAl CONSTRUCTION COSTS:
01 STRI8UTED COSTS;
DIR!cr-eONSTRUCTION COSTS:
GEM CONSTR CONTRACTS:
FUIlH CONCRETE
Wi. SI'l.lf UPST CF
Io OAW REI1AS
ACCESS . EXCAV
PW PRJ CONSTR
SRioeE REPI.
I
SUURY
Wi LNER NYOROLECTR I C PROJECT
(..1 N PORHOUSE)
20TR 30TR 4QTR 10TR
1998 ~ ~
I
- - -- .- -
I
TOT GEN CONSTR CON
PROCUIlE"'ENT CONTRAC~
TURS/COVIVALVES
C£NERATORS
SI'1.WY CATES/NST
PEHSTOCKS/CPLNGS
CHI. CTS/STPLGS/H
CTS/TRSHRKS/HSTS
TRASHIIAKES
P'tHS oJ I S CRANE
SRVC/IHSTR AIR S
UHWRC/DRNC PUW"
..IN PW TRNS'WR
HCH Vi. TC SWTCHCR
GEM SWTC/GR
SWTCHSOS/CNTL SY
STA SRVC TRNS'..R
STA SRVC BAT SYS
SCAOA
WI, DAW PwR EOU I I'
I
I
I TOT PROC~REMENT CO
OTHER CONTRACTS/FACl7--LAND ',8 1.8
OTH DIRECTS
I TOT OTH CONT/FACL 1.8
SALES TAX
SUS TOTAL 0 i RECTS 1.8 1.8
I TOTAL OISTR COSTS 1.8
UNDI STR i !UTEO COSTS:
i NOI REèT-CONSTRUCT i C~/OW
TEW SI.OCS/F ACl;
SITE 'IELO OFFSITE 'tI1S
SIT( SI'/LS BLOC
SITe: YAAO AREAS
I
I TOT TEW BI.DGS/FAC
CONSTR EOuIP:
TRANS EOUIP
TOOLS
0" FURN 1 TURE
OTH EQUIP
EQUIP RENTAl
6" ,3
41.~
20TR 10TR
1991 ~ -: 1992 "
40TR 10TR 20Tft JOTR 40TR
287,4 287.4 287.4 287.4 166.1
6%9.8 1171.9 1889,~
1~31,% 1~31.2 1~31,% 1~39.% 1~39,% 1$39.% 1$39,% '$39,~388.1 1".8-~-629.8 3928.4 .~ 174S.6 1146.6 1744.4 2866.4 2885.3 "J9~ i;Jg~;
"$4,'~41.8 1954,1"44,8 1644,8
18$,$
315,3
71l5,8
16$.8
364.5
2%8.8
15.8
11,84e.8~1'.8lU,6
468,8
-"" - 2~82,1 - 2629,~ 3~a6,8 1869,8 1%38,6
~.8
1 , 8 38 , 8 39,8
1.8 --1,8 38.8
3%l.8
3',8 ----328,8
216.$134.5
---$8.8
318,8 388.8
~8.8
318.8 388,8
183. 1 -e --
19~4, 8
1644,8
3~9B, 8
1I~ .8
11~. a
39.8 3~8~.9 39%2,~ 5%28.~ ~469.1 ~ JeB8,3 2469,3 2363,1 1$79.9 $463,::
38,8 --2~ a. 7133,1 2,1 162,3
1.8--------
I
---32.6
1.8 721.9
1.8 ..721,'---- --31!.8 3~1I$. 8 3122, $ 52%8. ~ $459,1 37$8.2 39118,3 2469,3 2J63. 1 1$78.8 $463,21.9
COSTS:
%l,'$.'$.'7~.48,31.8 8.3
~e,8
- - -- - -- '7 -- ã" -- --
5,18,48.3
8.5 8.58.3
%.1
1.51.3
%.1
TOT CONS TR EOU I I'-- - -- -- -- -u -u -u
I SA\-ES TAx
SUS TOT Al I NO i REeT S
I
OVERI1EAOS-ouTS i DE
CON TRACT SRvCS:
A/E
ENC STUDiES
OTH EHG SRVC;:
277,1 $S,S8,5
3,6
ENG SRves:
8.5$,41,51.5
S,3
8.:18.51.$1,5
!I.8 --
- - -- .. -- -1" -- --
157,4 278.3
1.8
---1.5 2.' 4,1 79,%
%78.3 %78, i 271, i iis. 2
1.81.8 1.8
13:1,2l.a
2%.:1 98.5
8,$1,$1.58,$
8,51.5
8. $8,5
5,11,48.3
8.$8.58.5
%.5
%.51.4I.J
4,3
8.$
1.5
8,:1
1.:1
2, I -- -i 1. :I.-8.:1
13:1. %
1.8
9. %
--1.3 1.%
11.6 6.:1
13:1.2
8,41,8
13:1.2
--1,1
%.68,4I.J
3.3
1.:1
1.$
8.:1 --1,:1
4.1l
13:1. ::tJ,. i
1. 8
135. '%1,9
TOT CON T SRVCS :51.9 ~'.e ~21l.J 271;3 279.3 :7~.J 1Jd.2 136.: 'J6.Z 1J6.= 136.5 13'.Z 13~.: ti~:
I OVERHEAOS-i PCO ENG SRves:
GENENC "CuE OFF:ENC J:I, eFIElD ViSiTS a,l
VENDOR VISI rs
AOWN/OTM EXPI
7 . 2 48 ' 8 44 . J
1,9 1.1
2,81.8 1.9
44.J
1.8
%.81,9
44.3
1.8J.9
i. 8
44,3
1,8i .91.8
28,a1.9
i.13
1. 9
:5.91,9
%, a1. a
28,9
1, a
2,8i, a
28,91,9
2, e
1, e
24,91,9
: .ii1,9
:4.1
1,$
2, a
1 9
,. .8
1,8
1,8
TOTAl.
1937,2
63.1, ::
12313, )6a8,9
29J49,3
6513. $
:1488.0
985,~
316.3786,9
185,8
16,9
18.848,9
:119,8185,5
364.6468,8
228.898,8~.0
16944, $
19:1,8
938.8
1125.0
1146,1
18664,3
38864, )
1. 58.4$.3
49, a
77,413,4
:18,8
2,i 198,5
$, :I
8.:1
8, :I
$, $
9, :I
:1. El
:1,8
4$,8
8.1 4,7
3. )2J:I.3
:563,6
5 a',5
:5 ~ 7 :
-Z4 !
, ,)
019,5
: 3 1
: I ,)
13, ,), e
I
I
I
SUi.RY
WILNER HYDROELECTRIC PROJECT
(WAIN POERHOSE)
':-1989_ c: 1998 :i .:
PAlOS
ACCUW 30fR
8/31. 9/38 40TR 10TR 20TR 30TR 40TR 10TR
1
--
( IN THOUSANOS OF DOLLARS)
3', I 7. % ~ -- --TOT CEN ENG HO
I
GEM ENG FIELD OFF:
ENG
INSP/OlTY CNTl
STARTUP/TESTAQl
OTH EXP
I
TOT GEN EHG Fa
ENG OTHER:
ENG
DRAFTING
2,:18,2
I
-%,7 1.1TOT ENG OTH
OVERHEADS-I PCO
ADIo HOE OFF:
lGl/ACCTG/P8
FEU/PERM I TS
TOT AON HO
OTHER SRVCS:
AFF 8,98,% 8.8I1.1 8.8
I
OVERH£ADS-COlPlIANCE COST~
E~lRO~ENTAl COSTS:$lAREO COSTS 18,% 1%.1
NOSHARED COSTS 8,8 14,8
---%,8---
i. 88,1 1,88,3 1.8 1.8
8,3 8.3
1.9 1.9
i. %1.2----1.% 1.2 1.2
17.528,8 13.514.8
TOT EHV i R COSTS t" ii 3G -v ~
8.%I SALfS TAX
SU,TOTAL OVERHEAOS 3J7,7 91.8 %58,2 358.4 3:11,4 487.8 358,5 3:12.5 3:1J.I
I
OVERH(ADS-oTHER COSTS:
EXPEHSES/ ALlOCAT IONS:
AO VALORElo TAX
INSUNCE
PlRClAS I He EXP
AO../GEM EXP
INTEREST
AFUC
I
8,2
i.,
'.8
-~-
49, 3 48, 3 3% . 8
2,8 3,1 18.1
20TR 30TR
:18,984,'
%%,'1.8
i. 6
1,3
1. 9
1.%
1.2
:198.7
1991
32,1
:18.984.'
22.:1
1.8
1,58.3
1.9
1.%
1.%
18,812.112,:114.1 1%,312.1 7.1 ,,:I
12.1 12.1
24,3 ~ -z U: 27.5
8.1
40TR 10TR
32,1
:18.'
84,:1
22.:11.8
1:1',7 1:1'.7
1.6 1.6
8,3 8,3
1.9 1.9
1. 2 1.2:lJ,'
5'.1 1.2
18.:111,1
8.2
412.5 3:14,2
:i .:
20TR 30TR
J:,8 -~28.8 28,8
1992
40rR TOUL
:i
164,7
1. 9
1.%
1.2 -184.8
481,1
TOT ovERHEAOS 337,791.6
..-------TOT OVH5-rHER COS 6.:1 1.:1 8.:1 24:1.8 :133,:1 717,J 8'2.9 9:13.4 18'8.8 11:1:1.8 1288,7
I TOTAL UNDISTR COST J37, 7 '1.8
---258, Z 356.9 35Z, ')
2,1 2.1
1.8 1.8
6,6 i J. 8 1:1'.7 159. 7
1.68,3 1.68.3
2:1.481.2
12.8
2:1,4
81,25.5
748,7
:1'.9 :18,9 :18.9
84,5 84,5 84.:1
22.:1 22.:1 22.:11.8 1,8 i.ii--.-
1:19.7 159.7
1.6 1.6
8,3 1.3
1.9
1,2
1. 2
12,811.8 2J.8 23,5
se,l 88,1
--416,3 68Z. 4 886,2 ¡e78,:1 126:1.:1 1387,6 l:1ie.i 1585,6 1688 7
28,8
58,9
84.5
:1,1n,:ii. ii
168.1
1.5I.J
1.9
1.2
:lJ,9
55.1
24.188.8
181.5
8.3
427,6
2'8.2 3:16,9 3'4,4
--
4111,3 688.3 '6:1.3 lØl3,8 1358,1 1316,1 1541.8 15l%,1 1693.7 512,8
5~e ')
SU8TOTAL CONSTR CO 338,7 ~ 2'1,% 1818.8 3113,4COTINGENCY 31.7 liZ.' 58,8ESCLATION 8,3 13.1 13,4
1.9 1.9 i. 9
4'84.3 4i 7185.8 e~'2.1 ;; ~
338,8 642,5 82'.2 671.' 48'.4 '11.7
lZ,4 193.3 218,1 UII,2 I'Z.8 184.2
2J,I --
lØJ,1 183.'
4811.2 39",% J28J,7 :1978,1
4J6. 7 428.8 J811. 4 4811 . %
242.' 2'1,1 118.1 176,4
%5,8 ---517,7
1.2 1.2:lJ,'1.%
8, %
--8.3 1.3
:11,884,6 422.3
576, I5.8
184, i
18,1
",1 1.2
431.5 438.6
2'.4
81. 2
11,6
88,9 ii8 . 9 68 . 981.3 iil.3 iil.38,9
Z:.61,9
131'.5
1. 7
1,.3
2',14.2
8,2 ---I.t 8.1 8,1
837.2 935,6 992.8 1837,5
i. e 29,2
1.5 1.:1 1.:1 2'.4
ii1.218,8
1. 7 17 ,8
16Z.7
i':'7
7,a
244,2 415,9
1.1
2i.:i88.8 Z2:1.14:8,8~5i
.. 3 %.8
:1396.8
Si.3 3Sl.:I5:18,1
:18,8
5804,8
8i.3 511:1:1,3
~ ::~ i J
12486,5
511:11.55383,2184Z,6
I TOTAL CONSTR COSTS 338,7 lI.6 29:1.3 1184,3 46:1,1 4483.3 :1354,6 S2Z'.1 74IZ,8 ~ :1186.3 46st,8 4627,8 37:1.8 5641,6 58317,3-. .. .. - -. .. -- -- .. .. -- .. .. - -
.PAIDS INCREASED S8.:I FOR SHARE~ . NOSHAREO EHVlROHYEHTAl COST TRANSFERS.
I IoGa8JA,2/,a
I
I
I
I
I
I SUIT
Y 1 LNER HTDROi£CTR I C PROJECT
(I'RHq A T DAM)
I 0(-1989- -c 1911e " -c 1991 " -c 1992 ~
PAIDS
ACCUIi 30TR
8/31 9IJe 40TR 10TR 20TR 30TR 40TR 10TR 20TR 30TR 40TR 10TR 20TR 30rR 40TR TOTAl.
I (IN THOUSANOS OF DOLL.ARS)--
TOTAL CONSTRUCTION COSTS:
OISTRieUTED COSTS:
DIR£CT-eONSTRUCTION COSTS:
CEil CONSTR CONTRACTS:
l'RH CONCRl!E
Il SPL1f UPST CF
Il DA "(HAS
AceSS . (XCAV
I' PRJ CONSTR $I,' $6.9 $6.' $6,lI $6.1I $6.1I $6.S $6,S
-- - --~--- -- -- -----
I
I
TOT C£N CONSTR CON
PRQCR(Ii(HT CONTRAC~ --
TURS/CO/VAL.VES
CEHERATORS
SI'L1f CA T ES/HS T
PENSTOCKS/CPlNCS
CHL CTS/STPL.CS/H
CTS/TRSHRKS/HSTS
TRASHIIAl(ES
I'HS J I S CRAN(
SIIVC/INSTII AIR S
UNWTRC/ORNC PWP
WAIN I' TRNSFYR
ll VI.TC SWTCHCI
CEN SWTCHCI
SwTCHSOS/CNTi SY
STA SRVC TRNSFIiR
STA SRVC 8AT STS
SCOAYI. DAM Pw EOU i P
--------------$6,S $6.S$8.' $6.1I $8.1I $6.1I $6,lI $6.1I-----------
I
I
I 3111.$319.$
I
TOT PROCUREIiENT CO
OTH(R CONTRACTS/FAC~ --
lAND
OTH DIRECTS
----..--- 3111.$--- 319.$--_._-----~----
I
-----------38.8 38.8
- 38.8' 38.8TOT OTH CONT/FACL
SAU:S TAX
--------------1.1 1.1 1.1 17.1 1.1I 1.9 1. 1 17.1
SUS TOTAL. 0 i RECTS - - - - - $1.8 5U -- 3113,$ 88 88 57 3l1.4
I - - - - - 9" 5U -- 393.$ 88 88 $7. 1I 39i. 4TOTAL DISTR COSTS
UNOISTRl8UTEO COSTS -; - -- - - ---- -- - --
INDIRECT-eONSTRUCTION/OIi COSTS:
TEYP SLDCS/FACL:
SITE FIELD OFFsi TE ,"HS
SITE SP/LS SLDC
SI TE TARO AREAS
--.--_..-
I
I
TOT TEWP sLOCS/FAC
- - - - -- - - -- - - - -- -- --- - - -- -- -- - - - -- - -- .- -- -
çO$TIl (au II':
TIlAItS EOU I I'
TOOLS
OFF FURN 1 TURE
OTH EOUtP
EQUiP REIlUL.I - .. - .- - -- -- .--- - - -- -- .- -
TOT COItSTR EOUIP ~ - - - - .- -- - -- - --. - -- --
I
SALES TAX
sus TOTAL INDIRECTS _.- -- .- - --..- -- -- - ~ -- - -- ----ENC SRvCS:- - _. - - -- -- - -- -- - ---
I
OV(RHEADS-oUTS I DE
CONTRACT SRVCS:A/E
ENC STUD I ES
OTH ENC SRVCS
lI,e 9,3 21.3 21.3 21.3 21.3 21.3 21.2 21.83.e
TOT COIlT SRVCS - 7ë -- -- %" %" %" %1 -- 2T -- -- - - -
I
------_-.-_.-SRVCS:OVERHEAD5-1 PCO ENC
CEN ENC HOWE OFF:
ENCFIELD VISI r5
VENDOR VISITS
AOWN/OTH EXP
3,2 3,2
8.1 8,1
e,2 e,28,1 e"
3.2
e, ,e,l
e, J
4,3 4,3 4.3 4,3 4.3 3,2 3.2 3,2e.l e.l 8.1 8.1 8,1 e.l e,l e ,1
e.2 e.2 8.2 e,2 8.2 8.2 e,2
e,1 e.i 8.1 8.1 ',1 1,1 e.l----------3,2e,le,2e.l
I
4$$.8
4$$.8
6311,e
539,8
5e.e
6e.e
4t.5
11116,5
11116.5
178,e-t 70,8
3,2
8.1
47 ,1
1. 3
Z.1t. 3
I '"
I
I
SUIoY
WIL~R HYDROELECTRIC PROJECT
(I'ERHOSE AT DAM)':-1989- .: 1991 ~ .: 1991 ~ .: 1992 ~
PAlOS
ACCUM 30TR
8/31 9/31 40TR 10TR 20TR 30TII 40TR 10TII 20TR 30TR 40TII 10TR 20TR 30TII 40 Til TOTAL
I
( I N THOSANDS OF DOLL)--
TOT CEil ENC HO -- - -- - .- - - - - -- - - -- -- --
I
CEil EHe FIELD OFF:
EIIC
I NS,"/O\, TY CHTL
STARrUp/TEST
AOM
OTN !Xl"
I
TOT ~II ENG Fa
EMC OTHEII:
ENG
DRAFTING
TOT ENG OTH
I
- -- -- -- - - -- - - -. - ---
4,4 4.7 3.74,7 4.7 4.7 3.15 3,15 3.15 3.15 3.15 3.d
1,1 1,3 5,1 5,1 5,3 5,3 5,3 5,3 5,3 5.31,4 1,4 8.1 1,1 8,5 8,5 8.5 8.5 8.5 1,3
1.11.3 1.3 2.1 2.1 2,3 2,3 2.3 2.3 2.3 2,31,1 1.2 1.1 1,1 8,1 1.1 1.1 1.1---.--- -- --------1.1 1.1 15.1 15.2 11,2 11,2 11,2 11.2 17 .2 16.t- - - -- - -- - -.. -- - -- -
1,3
1.1
1.3 1.31.3
1,1 1.3 1.3 1.31.1- - - - - _.- -- - --.- - - ----1.4 1,3 8,4 1.3 1,3 1,4 1,3
OVERHEADS-IPCO OTHER SRVC~
ADfo I1E OFF:
LC\'/Accrc/ps AFF
FEU/PER",I TS 1.2
I TOT AD"N HO
-------~------
',2 1.2 1.2 1.2 1.2 1,2
- - - -- -- -- -- -- -- -- -- -- -- - 1,2 - 1.3
OV£R(ADS-COlPLIANcËër~ - -- -- -- -- - -- -- -- -- -- -- --
ENVIRON"'ENTAL COSTS:
SHARED COSTS
NOSlAREO COSTS
I TOT ENV I R COSTS ---------------
I
SALES TAX
SU8TOTAL OVERHEAOS - 3.9 1' -- 2W 25.8"" -- -- 4i -- -i 2'.4 -- -21,9
- - - -- -- - - - - - - - -- ----
OVERHEAOS..THER COS~ - - -- -- -- -- -
EXl"(NSES/A\,LOCAT IONS:AD VALOREM TAX 1.9 9,1 1,1 9,1 9.3
INSURANCE
l"RClAS i NG EXp
AO/~N EXP
INTERESTAFUOC 3.1 5,9I
I
TOT OVHS..THER COS
TOT OVEIIHEADS
1.3 2.2 2,21.3 1,3 2.2
2.9
1.1 11.9 18,7 21.9 29.3 31. 2
- 8' 8' -- -W -; -- ii 2' "" ----33.4 2,9
- J: -- -- 2i 2..8 .38.8 4i -- . .52.9 52.2 4' -- -- -m
I
TDTA\, UNOISTR COST - 3,9 -- -- 25 -- Jë 4i -- 5' 62,2 4' -; -;:ã -ž3:â
SU8TOTA\, CONSTR CO - J: 1' 'ï 2i 21,8 31,1 18J,9 187,9 ii 455,8 ï' 14',7 i" 411.4
COTI NC£NCY 2,' 2.1 3,9 4,' 4,1 14.8 14.8 14.9 15,2 11.4 1'.4 11.9 82.2ESCALATIQH 1,2 ~9,3 1.11 1.2 1.5 1.2 8.11 7.' 15.9 18,5 11.5 7,1 15,9
TOTAt. COSTR COSTS - 3.1 -- -- 3',1 ~ 35,' 125.1 128.7 133.55i 115,1 1'.,1 131.8 4U,lI
I wiC8UC. 2/9.
I
I
I
I
I
~---~-_._--_....~-
3.3 51.1
42.287.81.1
11.41.8
131.9
9.41,1 2.51,4---9.5 2,g
9,3 1. 7
1. 7
357,4
7.9
2.9 4,9
133.2
145,1
592,5
592.5
1699,9
232.614,9
2116.6
1-
,
1
1
1
I
1
I
I
I
I
,
I
I
I
I
I
I
I
I
I
QUALIFICATIONS
OF
Thomas G. Faull, P.E.
of the
Idaho Public Utilities Commission
Mr. Faull received a Bachelor of Science
degree from the Uni versi ty of Idaho in 1970. His
major was Mechanical Engineering with emphasis on
Nuclear Engineering and Stress Analysis.His minor
was Business Administration with emphasis on Economics
and Management.
PROFESSIONAL REGISTRTIONS AND HONORS:
Mr. Faull is a member of Sigma Tau, the
collegiate engineering honorary society.He has
received registration to practice Professional
Engineering in the fol lowing states:
1974 :
1975 :
1977 :
1979 :
Idaho; Mechanica 1
Colorado; General
New Mexico; General
Oregon; Civil
He is also registered to practice before the U. S.
Office of Patents and Trademarks as a Patent Agent.
PROFESSIONA EXPERIENCE:
A. From 1970 through 1978, Mr. Faull worked
for the U.S. Bureau of Reclamation in the capacities of
Mechanical Engineer,Contract Administrator,and
....IDAHO POWER COMPANY
Case No. IPC-E-90-8
Exhibi t No. 101
T. Faull, Staff11/9/90 Page 1 of 4
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Resident Engineer.As a Mechanical Engineer he
provided quali ty control for mechanical, electrical,
and ci vi 1 works at maj or hydroelectric construction
projects. As a Contract Administrator he analyzed and
made recommendations pertaining to claims for addi-
tional compensation under contracts to build and supply
equipment for major hydroelectric and irrigation
projects, negotiated settlements thereto, and wrote
contract addenda to reflect negotiated settlements. As
a Resident Engineer he supervised up to 50 engineers,
surveyors, and technicians providing quality control of
electrical, mechanical, and ci vi 1 works of a 100,000
acre irrigation project; including roads, highways,
canals, pumping plants, pipelines substations, and a
11SkV transmission line.
From 1978 through 1986 Mr. Faull worked in
various capacities of consulting engineering. As such,
he did (or supervised) financial feasibility analyses,
design,construction management,canst ruct ion,and
start-up of chemical, water, and energy proj ects,
including PURPA hydro, coal, and MSW projects. He also
did business development, billing, personnel manage-
ment, and hiring/firing.
IDAHO POWER COMPANY
Case No. IPC-E-90-8
Exhibi t No. 101
T. Faull, Staff11/9/90 Page 2 of 4
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From 1987 through the present Mr. Faull has
served as a Utilities Engineer at the Idaho Public
utilities Commission. In that capacity he has analyzed
Cogeneration and Small Power Producers'(CSPPs' )
projects;developed computer models to represent
utilities' Avoided Costs, power supplies, cash flows,
and other features; testified in electric avoided cost
cases; authored Proposed Orders pertaining to avoided
costs,CSPPs'securi ty arrangements,utility sur-
charges, and uti Ii ties' conservation/least-costplanning
programs; and authored proposed Idaho comments to
Federal Notices of Proposed Ru1emaking.He has also
attended several related training programs and con-
ferences, including the NARUC 1987 Western uti Ii ty Rate
Seminar,the NARUC 1987 19th Annual Wi lliamsburg
Regulatory Conference, The 1988 First Annual Utility
Least-Cost-Planning Conference, the 6th NARUC Biennial
Regulatory Information Conference, a NARUC Conference
on Transmission Issues in Washington D.C., two pri-
vately sponsored conferences on CSPP regulation, and
one privately sponsored conference on bidding for CSPP
power.
IDAHO POWER COMPANY
Case No. IPC-E-90-8
Exhibit No. 101
T. Faull, Staff11/9/90 Page 3 of 4
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PUBLICATIONS:
Mr. Faul I has authored and presented three
papers that were published in the "Proceedings of the
Sixth NARUC Biennial Information Conference". The
papers were entitled:
1."Irreconcilable ConflictsInherent in VerticallyElectric uti lities",
of InterestIntegrated
2. "Solving the Overpayment Dilemma for
Levelized Rate PURPA Contracts", and
3. "Bid Price and Reserve Margin: Chicken
and Egg? An Approach to Pricing Power
in the Post-Spiral World".
---- = ---- ._---- _._-- --_. ._--- - ----- -----_. = _..
IDAHO POWER COMPANY
Case No. IPC-E-90-8
Exhibi t No. 101
T. Faull, Staff11/9/90 Page 4 of 4
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W--
CD i
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)-ii00~
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0Ü0.
B Il~0
~i I ~S ~0 0-
(M'I zaai) .100 .LINn
IDAHO POWER COMPANY
Case No. IPC-E-90-8
Exhibit No. 102
T. Faull, Staff11/9/90 Page 1 of 2
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(N)l zaa..) J.O:) .LINn
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IDAHO POWER COMPANY
Case No. IPC-E-90-8
Exhibit No. 102
T. Faull, Staff11/9/90 Page 2 of 2
1 UNIT COST UNIT COST
"HYDFO PLANT YEAR (1992 $!MWh)(1992 $!kW)
I
------------------------------------
TWIN FALLS '89 1989 AVG.AVG,***************
TWIN FALLS '88 1988 AVG,AVG.
TWIN FALLS ' 87 1987 $3,34 $25,15 TWIN FALLS
I
TWIN FALLS '86 1986 AVG,AVG,8,4 MW
TWIN FALLS '85 1985 AVG,AVG,55, a YEARS OLD
SWAN FALLS '89 1989 AVG.AVG.
SWAN FALLS '88 1988 AVG.AVG.
1
SWAN FALLS '87 1987 $8,05 $68,28 SWAN FALLS
SWAN FALLS '86 1986 AVG,AVG.10.3 MW
SWAN FALLS '85 1985 AVG,AVG,45. a YEARS OLD
CASCADE '89 1989 AVG,AVG.
CASCADE '88 1988 AVG.AVG.
I CASCADE '87 1987 $5,93 $16,42 CASCADE
CASCADE '86 1986 AVG,AVG.12.4 MW
CASCADE '85 1985 AVG,AVG,6, a YEARS OLD
SHOSHONE FALLS '89 1989 AVG.AVG,
I SHOSHONE FALLS ' 88 1988 AVG,AVG.
SHOSHONE FALLS '87 1987 $5,58 $25.14 SHOSHONE FALLS
SHOSHONE FALLS '86 1986 AVG,AVG,12,5 14\1
SHOSHONE FALLS '85 1985 AVG.AVG.69.0 YEARS OLD
I MALAD '89 1989 AVG.AVG,
MALAD '88 1988 AVG.AVG.
MALAD '87 1987 $1.99 $12,89 MALAD
MALAD '86 1986 AVG,AVG.20.7 MW
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MALAD '85 1985 AVG,AVG.42,0 YEARS OLD
UPPER SALMON '89 1989 AVG.AVG.
UPPER SALMON '88 1988 AVG.AVG.
UPPER SALMON '87 1987 $2.81 $21,35 UPPER SALMON
UPPER SALMON '86 1986 AVG.AVG.34,5 MW
I UPPER SALMON '85 1985 AVG.AVG.43.0 YEARS OLD
LOWER SALMON '89 1989 AVG.AVG.
LOWER SALMON '88 1988 AVG.AVG.
LOWER SALMON '87 1987 $2.99 $13,83 LOWER SALMON
I LOWER SALMON '86 1986 AVG. .AVG.60.0 MW
LOWER SALMON '85 1985 AVG.AVG,41,0 YEARS OLD
BLISS '89 1989 AVG.AVG.
BLISS '88 1988 AVG.AVG,
I BLISS '87 1987 $1.29 $6,79 BLISS
BLISS '86 1986 AVG.AVG.75.0 MW
BLISS '85 1985 AVG.AVG,40.0 yEARS OLD
STRIKE '89 1989 AVG.AVG,
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STRIKE '88 1988 AVG.AVG.
STRIKE '87 1987 $1. 32 $7,73 STRIKE
STRIKE '86 1986 AVG.AVG.82.8 M\
STRIKE '85 1985 AVG.AVG.38.0 yEARS OLD
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AMERICAN FALLS '89 1989 AVG.AVG.
AMERICAN FALLS '88 1988 AVG.AVG.
AMERICAN FALLS '87 1987 $3.02 $11. 35 AMERICAN FALLS
AMERICAN FALLS '86 1986 AVG.AVG.92.3 M\
AMERICAN FALLS '85 1985 AVG.AVG.12.0 yEARS OLD
I OXBOW '89 1989 AVG.AVG.
OXBO '88 1988 AVG.AVG.
OXBO '87 1987 SO.96 $4,81 OXBOW
OXBOW '86 1986 AVG.AVG.190.0 M\
I OXBOW '85 1985 AVG.AVG.29.0 yEARS OLD
HELLS CANYON '89 1989 AVG,AVG.
HELLS CANYON '88 1988 AVG.AVG.
HELLS CANYON '87 1987 $0.56 $2.90 HELLS CANYON
I HELLS CANYON '86 1986 AVG.AVG, 391.5 M\
HELLS CANYON '85 1985 AVG.AVG.23,0 yEARS OLD
BROWNLEE '89 1989 AVG.AVG.
BROWNLEE '88 1988 AVG.AVG.
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BROWNLEE '87 1987 $0,53 $2.08 BROWNLEE
BROWNLEE '86 1986 AVG.AVG,585.4 M\
BROWNLEE '85 1985 AVG.AVG.23.0 YEARS OLD
I IDAHO POWER COMPANY
Case No.IPC-E-90- 8
Exhibi t No.103
1
T. Faull,Staff
11/9/90 Page 1 of 3
1 CAPACITY GENERATION AVERAGE CAP, FACT..HYDRO PLANT YEAR (MW)(MWh)(aMW)(%)
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TWIN FALLS '89 1989 8,4 63,593 7,3 86,0%
TWIN FALLS '88 1988 8,4 54,367 6,2 73,6%
TWIN FALLS '87 1987 8,4 66,036 7,5 89,3%
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TWIN FALLS '86 1986 8,4 73,261 8,4 99,1%
TWIN FALLS ' 85 1985 8,4 74,005 8,4 100,1%
SWAN FALLS ' 89 1989 10,3 88,451 10,1 98,4%
SWAN FALLS '88 1988 10,3 92,710 10.6 103,1%
SWAN FALLS ' 87 1987 10,3 88,302 10,1 98,2%
I SWAN FALLS '86 1986 10.3 80,345 9.2 89,4%
SWAN FALLS '85 1985 10,3 34,495 9,6 94,0%
CASCADE '89 1989 12,4 37,264 4.3 34,3%
CASCADE '88 1988 12,4 22,328 2,5 20,5%
I CASCADE '87 1987 12.4 30,021 3,4 27,6%
CASCADE '86 1986 12.4 52,624 6,0 48,4%
CASCADE '85 1985 12,4 39,051 4,5 35,9%
SHOSHONE FALLS '89 1989 12,5 99,258 11. 3 90,6%
I SHOSHONE FALLS '88 1988 12.5 94,546 10.8 86,3%
SHOSHONE FALLS '87 1987 12,5 69,558 7,9 63,5%
SHOSHONE FALLS '86 1986 12.5 37,334 4,3 34. 1 %
SHOSHONE FALLS ' 85 1985 12,5 48,528 5,5 44,3%
I MALAD '89 1989 20.7 78,047 8,9 43,0%
MALAD '88 1988 20,7 180,474 20,6 99,5%
MALAD ' 87 1987 20,7 185,584 21. 2 102,3%
MALAD '86 1986 20.7 155,989 17,8 86,0%
MALAD '85 1985 20.7 180,612 20.6 99,6%
I UPPER SALMON '89 1989 34,5 249,042 28,4 82,4%
UPPER SALMON '88 1988 34,5 235,512 26.9 77 ,9%
UPPER SALMON '87 1987 34,5 274,806 31. 4 90.9%
UPPER SALMON '86 1986 34,5 282,465 32,2 93.5%
I UPPER SALMON '85 1985 34.5 290,873,0 33.2 96,2%
LOWER SALMON '89 1989 60,0 235,299 26,9 44,8%
LOWER SALMON '88 1988 60,0 221,461 25,3 42,1%
LOWER SALMON ' 87 1987 60,0 263,047 30.0 50,0%
I LOWER SALMON '86 1986 60,0 457,749 52,3 87,1%
LOWER SALMON '85 1985 60.0 379,213 43.3 72.1%
BLISS '89 1989 75.0 349,575 39.9 53.2%
BLISS '88 1988 75.0 333,319 38.1 50. n:
I BLISS '87 1987 75.0 391,367 44,7 59.6%
BLISS '86 1986 75.0 484,596 55.3 73,8%
BLISS '85 1985 75.0 508,491 58.0 77 .4%
STRIKE '89 1989 82.8 439,626 50.2 60,6%
STRIKE '88 1988 82,8 403,106 46.0 55,6%
I STRIKE '87 1987 82.8 465,243 53.1 64. 1%
STRIKE '86 1986 82.8 681,166 77,8 93.9%
STRIKE '85 1985 82.8 592,109 67.6 81,6%
AMERICAN FALLS '89 1989 92.3 269,790 30.8 33.4%
I AMERICAN FALLS '88 1988 92.3 234,808 26.8 29,0%
AMERICAN FALLS '87 1987 92.3 327,622 37.4 40,5%
AMERICAN FALLS '86 1986 92.3 667,174 76.2 82,5%
AMERICAN FALLS '85 1985 92.3 536,430 61.2 66,3%
I OXBOW '89 1989 190,0 980,413 111. 9 58.9%
OXBOW '88 1988 190,0 677 ,644 77.4 40.7%
OXBO '87 1987 190.0 878,563 100.3 52.8%
ux~uw '/j5 1955 190.0 1,397,061 159.5 83.9%
OXBO '85 1985 190.0 1,194,306 136.3 71. 8%
I HELLS CANYON '89 1989 391.5 2,032,046 232.0 59.3%
HELLS CANYON '88 1988 391.5 1,370,368 156.4 40.0%
HELLS CANYON '87 1987 391. 5 1,727,751 197.2 50.4%
HELLS CANYON '86 1986 391.5 2,509,024 286.4 73.2%
I HELLS CANYON '85 1985 391. 5 2,405,854 274.6 70.2%
BROWNLEE '89 1989 585.4 2,351,817 268.5 45.9%
BROWNLEE '88 1988 585.4 1,587,272 181. 2 31. 0%
BROWNLEE '87 1987 585,4 2,103,407 240.1 41.0%
I BROWNLEE '86 1986 585.4 3,887,256 443.8 75.8%
BROWNLEE '85 1985 585.4 2,983,072 340.5 58.2%
I IÚAHO POWER COMPANY
Case No.IPC-E-90-8ExhibitNo.103
T.Faull,Staff
I 11/9/90 Page 2 of 3
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APPEix i
QUALFICATIONS
Present OCcupation
Q. WHT is YOUR PRESENT OCCUPATION?
A. I am a consulting economist with Ben Johnson
Associates, Inc., a firm of economic and analytic
consultants specializing in the area of public utilityregulation.
Educational Background
Q. WHT is YOUR EDUCATIONAL BACKGROUND?
A. I graduated from Utah State University in 1962 with a
Bachelor of Science degree in economics. I earned the
Master of Science degree in economics at the University
of Oregon in 1964. Finally, I received a Ph. D. in
economics from Utah State University in 1972. The
title of my doctoral dissertation was New Deal
ExPenditures in the 48 States, 1933-1939.
Q. HAVE YOU RECEIVED ANY ACADEMIC HONORS OR AWARS?
A. Yes. I am a member of Omicron Delta Epsilon, the
national economics honorary, and was awarded a
National Science Foundation Fellowship in 1967.
Clients
Q. WHT TYPES OF CLIENTS EMPLOY YOUR FIRM?
A. Much of our work is performed on behalf of public
agencies at every level of governent involved in
utility regulation. These agencies include stateregulatory commissions, public counsels, attorneys
general, and local governments, among others. We are
also employed by various private organizations andfirms, both regulated and unregulated. The diversity
of our clientele is illustrated below.
.... IXHIBIT
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Exhibit 201, Page 1
Reading, Oi
Industrial CUstomers
of Idaho PowerIPC-E-90-8
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Regulatory Commissions
Alabama Pulic Service Commission - Pulic Staff for utility
Consumer Protection
Alaska Pulic utilities Commission
Arizona Corporation Commission
Arkansas Pulic Service Commission
District of Columia Pulic Service Commission
Idaho Pulic utilities Commission
Idaho State Tax Commission
Kansas State Corporation Commission
Maine Pulic utilities Commission
Missouri Pulic Service Commission
North Carolina utilities Commission - Pulic Staff
Oklahoma Corporation Commission
Ontario Ministry of Culture and Communications
Texas Pulic utilities Commission
Virginia Corporation Commission
Washington Utilities and Transportation Commission
West Virginia Pulic Service Commission - Division of
Consumer Advocate
Wisconsin Pulic Service Commission
Pulic Counsels
Arizona Residential Utility Consumers Office
Colorado Office of Consumer Services
Connecticut Consumer Counsel
District of Columia Office of People's Counsel
Florida Pulic Counsel
Georgia Consumers' utility Counsel
Illinois Small Business Utility Advocate Office
Indiana Office of the Utility Consumer Counselor
Maryland Office of People's Counsel
Minnesota Office of Consumer Services
Missouri Pulic Counsel
New Hampshire Consumer Counsel
Ohio Consumer Counsel
Pennsylvania Office of Consumer Advocate
Utah Department of Business Regulation - Committee of
Consumer Services
Exhibit 201, Page 2Reading, Di
Industrial CUstomers
of Idaho Power
IPC-E-90-8
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Attornevs General
Arkansas Attorney General
Florida Attorney General - Antitrust Division
Idaho Attorney General
Kentucky Attorney General
Michigan Attorney General
Minnesota Attorney General
Nevada Attorney General's Office of Advocate
for Customers of Pulic utilities
South Carolina Attorney General
Virginia Attorney General
Washington Attorney General
Local Governments
City of Austin, TX
City of Corpus Christi, TX
City of Dallas, TX
ci ty of El Paso, TX
City of Fort Worth, TX
City of Galveston, TX
City of Houston, TX
City of Lubbock, TX
ci ty of Norfolk, VA
City of Phoenix, AZ
City of Richmond, VA
ci ty of San Antonio, TX
City of Suffolk, VA
City of Tucson, AZ
County of Auqusta, VA
County of Henrico, VA
County of York, VA
Town of Ashland, VA
Town of Blacksburg, VA
Town of Pecos city, TX
Other Government Agencies
Canada - Department of Communications
United States Department of Justice - Antitrust Division
Stat. of Florida - Department of General Services
Provincial Governents of Canada
Exhibit 201, Page 3Reading, Di
Industrial Customers
of Idaho Power
IPC-E-90-8
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Regulated Firms
Americall LDC, Inc.
E. Ri tter Telephone Company
Florida Association of Concerned Telephone Companies, Inc.Holywell, Inc.
Louisiana/Mississippi Resellers Association
Madison County Telephone Company
Mountain View Telephone Company
Nevada Power CompanyNetwork I, Inc. ,
North American Telephone Company
North Carolina Long Distance AssociationPan-Alberta Gas, Ltd.Peninsula Communications, Inc.
RDM Telephone Systems
South Carolina Long Distance Association
Stanton Telephone
Teleconnect CompanyTransamericall, Inc.
Yelcot Telephone Company, Inc.
Other Private Organizations
Arizona Center for Law in the Pulic Interest
Casco Bank and Trust
Citizens l utility Board of Wisconsin
Colorado Energy Advocacy Office
East Maine Medical Center
Georgia Legal Services Program
Harris Corporation
Interstate Securities Corporation
J .R. Simplot Company
Merrill Trust Company
PenBay Memorial Hospital
Prior Exrience
Q. BEFORE BECOMING A CONSULTANT, WHERE WERE YOU
PRFESSIONALLY EMLOYED, AND IN WHT CAPACITIES?
A. From 1981 to 1986 I was Economist and Director of
Policy and Administration for the Idaho Public
Utilities Commission. My duties at the IPUC included,
in addition to my testimony, the preparation of special
reports in the areas of forecasting, demand studies,
and economic analysis. As Staff Director I was charged
Exhibit 201, Page 4Reading, Di
Industrial Customers
of Idaho Power
IPC-E-90-8
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A.
Q.
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wi th overseeinq the personnel and budqet functions, and
with representinq the Commission before the state
leqislature, at the qovernor i s office, before the
utility commissions of other states and before such
federal and reqional entities as the Bonneville Power
Administration, the Northwest Power Planninq Council,
and the Pu 1 ic Power Council.
Before that time I tauqht economics at Middle
Tennessee state University (Assistant Professor,
1965-70), Idaho state University (Assistant and
Associate Professor, 1970-S0), and the University of
Hawaii at Hilo (Associate Professor, 19S0-S1).
Subj ects tauqht included economic theory and history,
quantitative analysis, econometrics, statistics, labor
economics, financial institutions, and internationaleconomics.
In addition, between 1970 and 19S6 I prepared
reports and expert testimony on loss of earninqs in a
numer of leqal actions respectinq wronqful injury and
wronqful death. Al thouqh many of these cases were
settled without trial, I qave expert testimony in court
on numerous occasions.
Q.HAVE YOU TESTIFIED PREVIOUSLY AS AN EXPERT WITNESS IN
THE ARA OF PUBLIC UTILITY REGULATION?
Yes. I have provided or am preparinq expert testimony
on 19 occasions in proceedinqs before requlatory
commissions in Alaska, California, Colorado, District
of Columia, Idaho, Nevada, Texas, Utah, and
Washinqton, and before the Interstate CommerceCommission. In addition, I have served as a hearinq
examiner in Idaho.
My testimony in these proceedinqs dealt with
electric power planninq and forecastinq, power supply
models, avoided costs, demand elasticity models,
reqional economic conditions affectinq public
utilities, and cost of service.
DO YOU HAVE AN PROFESSIONAL PUBLICATIONS?
Yes. I have authored or co-authored more than 15 books
and articles, includinq the followinq:
Exhibit 201, Page 5Readinq, Di
Industrial CUstomers
of Idaho Power
IPC-E-90-S
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"Post-PUA views," Proceedings of the NARUC Biennial
Regulatory Conference, September 1982.
An Input-Output Analysis of the Impact from Proposed Mining
in the Challis Area (with R. Davies), Pulic Policy Research
center, Idaho State University, February 1980.
"The Paradox of Voting," Reason 10 (April 1979): 39- 41
"Index of Prices Received by Idaho Farmers," Idaho Economic
Indicators, July 1978 (also continuing series publishedmonthly) .
"Income Distribution in Idaho Counties," Idaho Business and
Economics Review.
Future-Gram, , C' Series: current Trends and Forecasts, , C '
Series (with R. Foster, et al.), Government Research
Institute of Idaho State University and the Southeast Idaho
Council of Governments, Pocatello, Idaho, June 1977.
An Empirical Analysis o~ Predictors o~ InCome Distribution
Effects of Water Quality Controls (with J. Keith, et al.),
Utah Water Research Laboratory, utah State University,
Logan, Utah, September 1976.
Regional Growth and Fiscal Impact in Southeast Idaho (with
V. Hj elm et al.), Government Research Institute of Idaho
State University and the Southeast Idaho Council of
Governments, Pocatello, Idaho, January 1976.
Phosphate and Southeast: A Socio Economic Analysis (with J.
Eyre et al.), Government Research Institute of Idaho State
University and the Southeast Idaho Council of Governments,
Pocatello, Idaho, August 1975.
Estimating General Fud Reyenues of the State of Idaho (with
S. Ghazanfar and D. Holley), Center for Business and
Economic Research, Boise State University, June 1975.
"Pocatello/Bannock County Economic Impact through 1978"
(with R. R. Johnson), funded by the City of Pocatello (A
Regional Input-OUtput Model), December 1975.
"A Note on the Distribution of Federal Expenditures: An
Interstate Comparison, 1933-1939 and 1961-1965," American
Economist 18, no. 2 (Fall 1974): 125-128.
Exhibit 201 ,Page 6Reading, Di
Industrial CUstomers
of Idaho Power
IPC-E-90-8
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"New Deal Activity and the states, 1933-1939," Journal of
Economic History 33 (December 1973): 792-S10.
"Utah's Steel Industry" (with Reid R. Durtschi and Bartell
Jensen), Utah state University Research Paper, 1965.
Exhibit 201, Page 7Readinq, Di
Industrial CUstomers
of Idaho PowerIPC-E-90-S
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INDUSTRIAL CUSTOMERS OF IDAHO POWER
CASE NO. IPC-E-90-8
SCHEDULE 1
IDAHO POWER COMPANY
CHAGE IN COST OF EQUITY
(000)
Amount
Common Equity
Preferred Stock
Long-term Debt
$ 589,46258,923557,851
$1,206,236
Investment in Swan Falls
and Milner
Equity Ratio
Swan Falls and Milner
financed by Equity
$ 150,29048.9%
$ 73,492
Amount
Swan Falls and Milner
financed by Equity
1989 Common Equity
$ 73,492589,462
$662,954
Cost of Equity: $79,558 / $662,954 = 12.00%
Ratio
48.9%4.946.2
100.0%
Rate Cost
x
x
10.00% :=
12.25% 1=
!
$ 7,34972,209
$79,558
Source: Idaho Power Company, 1989 Annual Report; Exh~bit 3,
Case No. IPC-E-90-8; Attachment 3, supplem~ntal
Application, Case No. IPC-E-90-2; and Idahd Public
utilities Commission, Order No. 20924.
...Exhibit 2n2
Reading, ¡Di
Industri~l Customers
of Idaho Ipower
IPC-E-90-i8