20210115Hemstreet Exhibit 2.pdf

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Exhibit 2
Rocky Mountain Power
Exhibit No. 2 Page 1 ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
KLAMATH HYDROELECTRIC
SETTLEMENT AGREEMENT
February 18, 2010
as amended April6r2016
& November 30, 2016
Rocky Mountain Power
Exhibit No. 2 Page 2 ot 221
Case No. PAC-E-21-01
Witness: Timothy J. Hemstreet
TABLE OF CONTENTS
Recitals
Purpose of Settlement ..........
Parties Bound by Settlement
Definitions.
Compliance with Legal Responsibilities ..........
Reservations
1.
1.1
1.2
1.3
t.4
1.5
1.6
r.7
1.8
t.9
2.4
3.
3.1
3.2
1.6.1
1.6.2
1.6.3
1.6.4
2.t.2
2.1.3
2.r.4
2.1.5
2.t.6
Generally..
Reservations Regarding Federal Appropriations .,..........
Availability of Public Funds
Reservations Regarding Legislative Proposals ..
2
3
3
3
7
7
7
7
8
8
8
8
8
8
9
9
1.6.5 Reservations Regarding Regulations
1.6.6 No Pre-Decisional Commitrnent....
1.6.7 No Waiver of Sovereign Immunity
1.6.8 No Argument, Admission, or Precedent
L6.9 Protection of Interests ....
Trinity River.........
Tribal WaterRights
Klamath Basin Agteement
2.
2.1
Implementation of S.al*laman}
General Duty to Support Implementation
2.1.1 Legislation.
Regulatory Approvals ....
Defense of Sefflement....
Obligation to Implement
Timeliness
Force Majeure
2.2 Ratemaking Legislation and Proceedings ...............,
2.3 Project Water Rights; Klamath Basin Adjudication
.......12
,,.,,,, 12
10
10
10
l0
r0
11
l1
11
13
t4
t4
t4
t4
2.3.1 Project WaterRights
2.3.2 Klamath Basin Adjudication....
Lease of State-Owned Beds and Banks
4.
4.1
Secretarial Designation and Statement of Support .................. 14
Statement of Support. ......... 14
Secretarial Designation ......14
Costs 15
Funds for the Purpose of Facilities Removal... ........ 15
4.1.1 The Customer Contribution........... .............. 15
4.1.2 The California Bond Funding ...................... 16
4.1.3 State Cost Cap............ ............... 17
I
4.2
4.3
4.4
Rocky Mountain Power
Exhibit No. 2 Page 3 ol 221
Case No. PAC-E-2'l-0'l
Wtness: Timothy J. Hemstreet
Establishment and Management of Trust Accounts and California Bond Funding ..........17
4.2.1 The Oregon Klamath Trust Accounts................. .............17
4.2.2 The California Klamath Trust Accounts................. .........17
4.2.3 The California Bond Funding .......................18
4.2.4 Management of the Trust Accounts................. ................18
Adjustrnent to Surcharges ...19
Disposition of Unnecessary or Unused Funds from the Oregon and/or California
Klamath Trust Accounts .........................
Recovery of Net lnvestrnent in Facilities
Recovery of Costs of Ongoing Operations and ReplacementPower
Treatment of Costs Related to Future Portfolio Standards and Climate Change
Legislation
Acknowledgement of Independence of Oregon PUC and California PUC.........
Consultation................
t9
4.8
4.9
4.10
4.tL
4.12
5.
5.1
5.2
5.3
5.4
4.5
4.6
4.7
6.
6.1
6.2
..............20
...,,...,...,.2|
...,...,.,,,,21
...,.........,21
..',....,,.,..22
.22
.22
United States Not Responsible for Costs of Facilities Removal....
Parties' Costs Related to Facilities Removal ...............
Funding and Grant Agreements ................
Local Community Power.......
Power Development
[Section deleted]
Transmittal and Distribution of Energy ...........
Irigator Rates
Interim Operations
General......
6. I . 1 PacifiCorp Performance................
6.1.2 Duty to Support......
6.1.3 Permitting.
6.1.4 lnterim Power Operations
6.1.5 Adjushnent for Inflation..
Interim Conservation Plan
6.2.1 Application by PacifiCorp
6.2.2 Applicable Actions by the Services under the ESA...........
6.2.3 Potential Modifications of Measures...
TMDIs......
6.3.1 PacifiCorp Implementation..................
6.3.2 TMDL Implementation Plans
6.3.3 Keno Load Allocation.
6.3.4 TMDL Reservations.
Other Project Works
6.4.L East SideAVest Side Facilities ....
6.4.2 Fall Creek Hydroelectric Facility
Abeyance of Relicensing Proceeding .....
1l
.23
.23
.24
.26
).6
6.3
6.4
.28
.29
,29
.29
.29
6.5
30
30
3l
31
31
32
Rocky Mountain Power
Exhibit No. 2 Page 4 o'f 221
Case No. PAC-E-2I-01
Vvitness: Timothy J. Hemstreet
7. DRE, Transfer, Surrender, and Facilities Removal................ ...................327.1 DRE...........32
7 .l .I Execution of Settlement...............
7.1.2 Capabilities
7.1.3 LiabilityProtection
7.1.4 License Transfer Conditions and Timing
7.1.5 FERC Application for Transfer
7.1.6 Operation and Maintenance Agreement
7.1.7 FERC Application for Surrender
32
33
34
35
.........35
.........36
7.1.8 Performance of Facilities Removal
7.1.9 Other Regulatory Approvals for Facilities Removal
7.1.10 Assignment
Definite Plan and Detailed Plan .
,.,,,.,.37
,..,...,37
37't .2
7.3
7.4
7.2.r
7.2.2
7.2.3
Development and Use of oefinite P1an. .. 37
Detailed Plan for Facilities Removal ............38
Assessment and Mitigation of Potential Impacts to the City ofYreka..................39
Schedule for Facilities Removal .....
Transfer, Decommissioning, and Facilities Removal
7.4.1 DRE Notice
7.4.2 Decommissioning and Transfer.......
Keno Facility
7.5J Study
7.5.2 Keno Facility Determination
7.5.3 PacifiCorp Operations Prior to Transfer....
7.5.4 Operations After Transfer
7.5.5 Landowner Agreements...
Dispositions of PacifiCorp Interests in Lands and Other Rights........
7 .6.1 Lands Owned by PacifiCorp...............
7.6.2 Potential Non-Project Land Exchanges
7.6.3 BLM Easements and Rights of Way......
7.6.4 PacifiCorp Klamath Hydroelectric Project Lands
7.6.5 PacifiCorp Water Riehts
7.6.6 PacifiCorp Hatchery Facilities...
General Provisions.......
7.5
7.6
.40
.43
.43
.43
.44
.44
.44
.4s
.45
.45
45
46
46
48
49
8.
8.1
8.2
8.3
8.4
8.5
8.6
Term of Settlement
Effectiveness .........
Successors and Assigns...............
Amendment
.50
Notices
..50
..50
..5 1
..51Dispute Resolution.
8.6.1 Cooperation................
8.6.2 Costs.........
8.6.3 Non-Exclusive Remedy
8.6.4 Dispute Resolution Procedures
....51
....51
3
..51
..52
Rocky Mountain Power
Exhibit No. 2 Page 5 ol 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
8.7 Meet and Confer.....
8.7.1 Applicability
53
53
53
53
53
54
54
54
54
55
56
57
57
57
58
58
58
58
58
58
58
58
59
59
59
8.7.2 Meet and Confer Procedures.
8.8
8.9
8.10
8.11
Remedies..
Entire Agreement
Severability
Termination................
8.1 1.1 Potential Termination Events
8.11.2 Definitions for Section 8.11 ..
8.1 1.3 Cure for Potential Termination Event
8. I I .4 Obligations Surviving Termination ................
8.r2
8.13
8.14
8.1s
No Third-Party Beneficiaries ........
Elected Officials Not to Benefit.......
No Partnership ...........
Governing Law
8. I 5. I Contractual Obligation.........
8. 15.2 Regulatory Obligation.
8.15.3 Reference to Applicable Law.......
8.16
8. t7
Federal Appropriations
Confidentiality
9.
9.1
9.2
9.3
9.4
Execution of Settlement..............
Signatory Authority
Sigrung in Counterparts
New Parties ..................
DRE and Liability Transfer Corp. as Parties ........
4
Rocky Mountain Power
Exhibit No. 2 Page 6 ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
APPENDICES
A. Coordination Process for the Studies Supporting the Secretarial Determination
B. Interim Measures Implementation Commiuee (Interim Measure 1)
C. Interim Conservation Plan (ICP) Interim Measures
D. Non-ICP Interim Measures
E. Elements for the Proposed Federal Legislation
F. Oregon Surcharge Act (as codified)
G-1. California Legislation, Water Bond Language
G-2. California Legislation, CEQA Legislation Language
H. Calculation of Initial Customer Surcharge Target
I. Study Process Guidelines
J. Science Process
K. List of Authorized Representatives
L,DRE and Contractor Qualifications, Insurance, Bonding, and RiskMitigation
Requirements
F\TI{IRITS
1. Water Rights Agreement between PacifiCorp and the State of Oregon
2. Sequence of Performance Chart-KHSA
3. Maps
4. Estimated Timelines-KHSA as Amended
5
Rocky Mountain Power
Exhibit No. 2Page7 of 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
The KLAMATH HYDROELECTRIC SETTLEMENT AGREEMENT was made and entered
into by and among the following entities:
Ady District Improvement C ompany;
AmericanRivers;
Bradley S. Luscombe;
Califomia Deparhnent of Fish and Game ("CDFG");
California Natural Resources Agency ("CNRA");
California Trout;
Collins Products, LLC;
Don Johnston & Son;
Enterprise lrrigation District;
Humboldt County, California;
Institute for Fisheries Resources;
Inter-County Properties Co., which acquired title as Inter-County TitleCo.;
Karuk Tribe;
Klamath Basin Improvement District;
Klamath County, Oregon;
Klamath Drainage District;
Klamath krigation Distict;
KlamathTribes;
Klamath Water and Power Agency("KWAPA");
Klamath Water Users Association ("KWUA");
Malin Lri gation District;
Midland Dishict Improvement Company;
Northern California Council, Federation of Fly Fishers;
Oregon Department of Environmental Quality ("ODEQ");
Oregon Department of Fish and Wildlife ("ODFW");
Oregon Water Resources Deparbnent ("OWRD");
Pacific Coast Federation of Fishermen's Associations;
PacifiCorp;
Pioneer District Improvement Company;
Plevna District Improvement Company;
Randolph Walthall and Jane Walthall as trustees under declaration of trustdated
November 28,1995 (the "Randolph and Jane Walthall 1995 trust");
Reames Golf and CountryClub;
Salmon River Restoration Council;
Shasta View krigation District;
Sunnyside krigation District;
Trout Unlimited;
Tulelake Irrigation District;
United States Department of Commerce's National Marine Fisheries Service ("IrlMFS");
United States Department of the lnterior("Interior");
Upper Klamath Water Users Association ("UKWUA");
Van Brimmer Ditch Company;
Westside Improvement District #4;
1
Rocky Mountain Power
Exhibit No. 2 Page I ol 221
Case No. PAC-E-21-01
Witness: Timothy J. Hemstreet
Winema Hunting Lodge, Inc.;and
Yurok Tribe;
This Klamath Hydroelectric Settlement Agreement, as amended, is entered into by and among
the entities who sign the Settlement.
1. Introduction
1.1 Recitals
WHEREAS, the States, the United States and PacifiCorp entered into the 2008 Agreementin
Principle that addressed issues pertaining to the resolution of certain litigation and other
controversies in the Klamath Basin, including a path forward for possible Facilities Removal;
and
WHEREAS, the 2008 AIP provided that the parties to the 2008 AIP would continuegood-faith
negotiations to reach a final sefflement agreement in order to minimize adverse impacts ofdam
removal on affected communities, local property values and businesses and to specify
substantive rights, obligations, procedures, timetables, agency and legislative actions, and other
steps for Facilities Removal; and
WHEREAS, the other Parties to this Settlement desired to participate in the negotiations ofa
final settlement agteement in order to ensure that the interests of Indian tribes, environmental
orgatizations, fishermen, water users, and local communities were addressed; and
WHEREAS, the Parties view this Settlement as an important part of the resolution oflong-
standing, complex, and intractable conflicts over resources in the Klamath Basin; and
WHEREAS, the 2008 AIP established a "commitment to negotiate" a settlement "based on
existing information and the preliminary view of the governmental Parties (the United States,
Oregon, and California) that the potential benefits for fisheries, water and other resources of
removing the Facilities outweigh the potential costs, risks, liabilities or other adverse
consequences of such removal"; and
WHEREAS, certain Parties believe that decommissioning and removal of the Facilities willhelp
restore Basin natural resources, including anadromous fish, fisheries and water quality; and
WHEREAS, the Parties understand that the Project dams are currently the propertyof
PacifiCorp, and that they are currently operated subject to applicable state and federal law and
regulations. The other Parties understand that the decision before PacifiCorp is whetherthe
decommissioning and removal of certain Facilities is appropriate and in the best interests of
PacifiCorp and its customers. PacifiCorp asserts that prudent and reasonable long-termutility
rates and protection from any liability for damages caused by Facilities Removal are central to its
willingness to voluntarily transfer the dams and the low-carbon renewable energy theyproduce
and to concur in the removal of the dams by the DRE; and
2
Rocky Mountain Power
Exhibit No. 2 Page I ot 221
Case No. PAC-E-21-01
VMtness: Timothy J. Hemstreet
WHEREAS, the United States has devoted considerable funds and resources toresource
enhancements, management actions, and compensation in the Klamath Basin, and variousParties
believe that a broader and integrated approach is appropriate to realize Basin-wide objectives;
and
WIIEREAS, this Settlernent contemplates a substantial non-federal contribution in supportof
said approach; and
WHEREAS, the Tribes and the Federal Parties agree that this Settlement advances thetrust
obligation of the United States to protect Basin Tribes' federally reserved fishing and water
rights in the Klamath and Trinity River Basins; and
WHEREAS, in 2016, PacifiCorp, the United States, and the States signed the 20l6Agreement
in Principle to signify their intent to negotiate an amended KHSA that would facilitateFacilities
Removal through the existing authority of FERC under the Federal Power Act; and
WHEREAS, all of the Parties agree that this Settlement is in the publicinterest.
NOW, TIIEREFORE, the Parties agree as follows:
1.2 Pumose of Settlement
The Parties have entered into this Settlement for the purpose of resolving among themthe
pending FERC relicensing proceeding by establishing a process for potential Facilities
Removal and operation of the Project until that time.
1.3 Parties Bound by Settlement
The Parties shall be bound by this Settlement for the term stated in Section 8.1 herein,
unless terminated pursuant to Section 8.11.
1.4 Definitions
"2008 Agreement in Principle" or "2008 AIP" refers to the Agreement inPrinciple
executed on November 13, 2008, by the states of Oregon and California, Interior, and
PacifiCorp setting forth a framework for potential Facilities Removal.
"2016 Agreement in Principle" or "2016 AIP" refers to the Agreement inPrinciple
executed on February 2,2016, by the states of Oregon and California, Interior, theU.S.
Deparfinent of Commerce, and PacifiCorp signifying their intent to negotiate anamended
KHSA that would achieve Facilities Removal through the existing authority ofFERC
under the Federal Power Act.
"Amendment Effective Date" is defined in Section 8.2.
J
Rocky Mountain Power
Exhibit No. 2Page 10 ot 221
Case No. PAC-E-21-01
\Mtness: Timothy J. Hemstreet
"Applicable Law" means general law that (1) exists outside of this Settlement,
including, but not limited to a Constitution, statute, regulation, court decision, orcorlmon
law, and (2) applies to obligations or activities of Parties contemplated by this Settlement.
The use of this term is not intended to create a contractual obligation to comply with any
law that would not otherwise apply.
"Authorizing Legislation" refers to the statutes enacted by the Oregon andCalifornia
Legislatures, respectively, to authorize and implement certain aspects of this Settlement,
ifnecessary.
"CEQA" refers to the Califomia Environmental Quality Act, Cal. Pub. Res. Code
$ 21000 et seq.
"C'\ryA" refers to the Clean Water Act, 33 U.S.C. $ l25l et seq
"Coordination Process" for the Studies Supporting the Secretarial Determinationmeans
the process contained in Appendix A by which the United States will obtain input and
assistance from the Parties to this Settlement, as governed by Applicable Law, regarding
the studies and environmental compliance actions needed to inform and support the
Secretarial Determination.
"Counties" refers to the counties that sign this Settlement
"Dam Removal Entity" or "DRE" is the Klamath River Renewal Corporation,which
will be the entity responsible for Facilities Removal under thisSettlement.
"Decommissioning" means PacifiCorp's physical removal from a facility of any
equipment and personal property that PacifiCorp determines has salvage value, and
physical disconnection of the facility from PacifiCorp's transmissiongnd.
"Definite Plan" means a plan and timetable for Facilities Removal submitted by theDRE
or any of its contractors or assigns under Section 7.2.1.
"Detailed Plan" means the plan dated July 2012 that includes elements described in
Section 7.2.2.
"Dispute Resolution Procedures" means the procedures established by Section 8.6.
"Due Diligence" means a Party's taking all reasonable steps to implement itsobligations
under this Settlement.
"Effective Date" is defined in Section 8.2.
"EPAct" refers to the Energy Policy Act of 2005, Section 241, codified at 16 U.S.C.
$ 823d and amendments to l6 U.S.C. $$ 797(e) and 8l l.
66ESA" refers to the federal Endangered Species Act, 16 U.S.C. $$ 1531 et seq
4
Rocky Mountain Power
Exhibit No. 2 Page 11 ol 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
"Facilities" or "Facility" means the following specific hydropower facilities withinthe
jurisdictional boundary of FERC ProjectNo. 2082: kon Gate Dam, Copco No. I Dam,
Copco No. 2 Dam, J.C. Boyle Dam, and appurtenant works currently licensedto
PacifiCorp.
"Facilities Removal" means physical removal of all or part of each of the Facilities to
achieve at a minimum a free-flowing condition and volitional fish passage, site
remediation and restoration, including previously inundated lands, measures to avoid or
minimize adverse downstream impacts, and all associated permitting for such actions.
"Federal Parties" refers to Interior, including the component agencies and bureaus of
lnterior, and the NMFS.
"FERC" refers to the Federal Energy Regulatory Commission.
"Interim Conservation Plan" or "ICP" refers to the plan developed byPacifiCorp
through technical discussions with NMFS and the U.S. Fish and Wildlife Service
("USFWS") regarding voluntary interim measures for the enhancement of coho salmon
and suckers listed under the ESA, filed with FERC on November 25,2008, or suchplan
as subsequently modified.
"Interim Measures" refers to those measures described in Appendices C and D to this
Settlement.
"Interim Period" refers to the period between the Effective Date and Decommissioning.
"Keno facility" means Keno Dam, lands underlying Keno Dam, appurtenant works and
PacifiCorp-owned property described as Klamath County Map Tax Lot R-3907-03600-
00200-000 located in Klamath County, Oregon.
"Klamath Hydroelectric Settlement Agreement" or "KIISA" means theKlamath
Hydroelectric Settlement Agreement executed February 1 8, 20 I 0.
"Meet and Confer" procedures mean the procedures established by Section 8.7 ofthis
Settlement.
"NEPA" refers to the National Environmental Policy Act, 42 U.S.C. $$ 4321 et seq
"Nominal dollars" means dollars that are not adjusted for inflation at the time they are
collected.
"Non-bypassable surcharge" means a monetary surcharge authorized by the appropriate
state utility commission through a tariff schedule that applies to all retail customers who
rely on PacifiCorp's transmission and distribution system for the delivery ofelectricity.
"Notice" means wriffen notice pursuant to the requirements and procedures of
Section 8.5.
5
Rocky Mountain Power
Exhibit No. 2Page 12 ot 221
Case No. PAC-E-21-01
Vvitness: Timothy J. Hemstreet
"Oregon Surcharge Act" is defined in Section 2.2.
"PacifiCorp's Economic Analysis" means the primary economic analysis preparedby
PacifiCorp and relied upon by PacifiCorp to compare the present value revenue
requirement impact of the KHSA against the present value revenue requirement of
relicensing of the Facilities under defined prescriptions generally based on theFERC
Final Environmental Impact Statement dated November 2007, which analysis PacifrCorp
filed with the Public Utility Commission of Oregon ("Oregon PUC") pursuantto
Section 4(1) of the Oregon Surcharge Act and with the California Public Utilities
Commission ("California PUC") in accordance with Section 4 of the KHSA. This
analysis was used to compare the relative cost of relicensing with the relative cost ofthe
KHSA.
"Parties" or "Part5r" means the signatories to this Amended KHSA collectively ora
signatory individually.
"Project" refers to the Klamath Hydroelectric Project as licensed by FERC underProject
No.2082.
"Public Agency Party" means each Tribe, the Federal Parties, the agencies of eachof
the States, the Counties, and each other Party that is a public agency establishedunder
Applicable Law.
"Regulatory Approval" means each permit or other approval under a statute or
regulation necessary or appropriate to implement any of the obligations or activities of
Parties contemplated under this Settlement.
"Regulatory Obligation" means each of those obligations or activities ofParties
contemplated by this Settlement that are subject to Regulatory Approval and, uponsuch
approval, are enforceable under regulatory authority.
"secretarial Determination" means the determination contemplated in Section 3.3 of
the KHSA.
"Secretary" refers to the Secretary of the Interior
"services" means the National Marine Fisheries Service and the U.S. Fish andWildlife
Service.
"Setflement" means the entirety of the KHSA and Appendices A through L, as amended
and applicable. "settlement" does not include Exhibits 1 through 4, which are related
documents attached for informational purposes.
"States" refers to the State of Oregon by and through the Oregon Department of Fish and
Wildlife, Oregon Department of Environmental Quality, and Oregon WaterResources
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Rocky Mountain Power
Exhibit No. 2 Page 13 ot 221
Case No. PAC-E-21-01
Witness: Timothy J. Hemstreet
Department, and the State of California by and through the California Deiparbnent ofFish
and Wildlife ("CDFW") and the California Natural ResourcesAgency.
"State Cost Cap" means the collective maximum monetary contribution from thestates
of California and Oregon as described in Section4.l.3 of this Settlement.
"Timely" or "Timeliness" means performance of an obligation by the deadline
established in the applicable provision of this Settlement or otherwise in amanner
reasonably calculated to achieve the bargained-for benefits of this Settlement.
'oTribes" means the Yurok Tribe, the Karuk Tribe, the Hoopa Valley Tribe, andthe
Klamath Tribes, so long as such tribe is a signatory to the Settlement.
"Value to Customers" means potential cost reductions described in Section7.3.8.
These cost reductions would (1) decrease the Customer Contribution defined in
Section 4.L.I.C, (2) decrease the costs of ongoing operations, or (3) decrease the costs of
replacement power, as compared against the assumptions contained in PacifiCorp's
Economic Analysis.
1.5 Comoliance with Lesal Responsibilities
In the implementation of this Settlement, Public Agency Parties shall complywith
Applicable Law, including but not limited to the Authorizing Legislation, NEPA, ESA,
CWA, the Wild and Scenic Rivers Act, andCEQA.
1.6 Reservations
1.6.1 Generally
Nothing in this Settlement is intended or shall be construed to affect or limitthe
authority or obligation of any Party to fulfill its constitutional, statutory, and
regulatory responsibilities or comply with any judicial decision. Nothing inthis
Settlement shall be interpreted to require the Federal Parties, the States, or any
other Party to implement any action which is not authoizedby Applicable Law or
where sufficient funds have not been appropriated for that purpose by Congress or
the States. The Parties expressly reserve all rights not granted, recognized, or
relinquished in this Settlement.
1.6.2 Reservations Reeardins Federal Appropriations
All actions required of the Federal Parties in implementing this Settlement are
subject to appropriations for that purpose by Congress. Nothing in this Sefflement
shall be interpreted as or constitute a commitment or requirement that anyFederal
agency obligate or pay funds in violation of the Anti-Deficiency Act, 3l U.S.C.
$ 1341, or other Applicable Law. Nothing in this Settlement is intended orshall
be construed to commit a federal official to expend federal funds not appropriated
7
Rocky Mountain Power
Exhibit No. 2 Page 14 ot 221
Case No. PAC-E-21-01
\Mtness: Timothy J. Hemstreet
for that purpose by Congress. Nothing in this Settlement is intended to or shallbe
construed to require any official of the executive branch to seek or request
appropriations from Congress to implement any provision of this Settlement.
1.6.3 AvailabiliW of Public Funds
Funding by any Public Agency Party under this Settlement is subject to the
requirements of Applicable Law. Nothing in this Settlement is intended orshall
be construed to require the obligation, appropriation, or expenditure of any funds
by the States or a Public Agency Party except as otherwise permittedby
Applicable Law.
1.6.4 Reservations Regardine Lesislative Proposals
Nothing in this Settlement shall be deemed to limit the authority of the executive
branch of the United States govemment to make recommendations to Congress on
any particular proposed legislation.
1.6.5 Reservations Reeardine Regulations
Nothing in this Settlement is intended or shall be construed to deprive anypublic
official of the authority to revise, amend, or promulgate regulations.
1.6.6 No Pre-Decisional Commitment
Nothing in this Settlement is intended or shall be construed to be apre-decisional
commitment of funds or resources by a Public Agency Party. Nothing inthis
Settlement is intended or shall be construed to predetermine the outcome of any
Regulatory Approval or other action by a Public Agency Party necessaryunder
Applicable Law in order to implement this Settlement.
1.6.7 No Waiver of Sovereien Immunitu
Nothing in this Settlement is intended or shall be construed as a waiver of
sovereign immunity by the United States, the State of Oregon, the Stateof
California, any other Public Agency Purty, or the Tribes. This Sefflement does
not obligate the United States or any Federal Party to affirmatively supportthis
Settlement regarding any state or local legislative, administrative, orjudicial
action before a state administrative agency or court.
1.6.8 No Argument. Admission. orPrecedent
This Settlement shall not be offered for or against a Party as argument, admission,
or precedent regarding any issue of fact or law in any mediation, arbitration,
litigation, or other administrative or legal proceeding, except that this Settlement
may be used in any future proceeding to interpret or enforce the terms ofthis
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Rocky Mountain Power
Exhibit No. 2 Page 15 ot 221
Case No. PAC-E-21-01
Witness: Timothy J. Hemstreet
Settlement, consistent with Applicable Law. This Settlement may also be usedby
any Party in litigation by or against non-Parties to implement or defendthis
Settlement. This section shall survive any termination of this Settlement.
1.6.9 Protection of Interests
Each Party may, in a manner consistent with this Settlement, protect, defend, and
discharge its interests and duties in any administrative, regulatory, legislative or
judicial proceeding, including but not limited to the Secretarial Determination,
FERC relicensing process, CWA 401 proceedings, or other proceedings related to
potential Project relicensing, surrender, or Facilities Removal.
1.7 Trinitv River
The Parties intend that this Settlement shall not adversely affect the TrinityRiver
Restoration Program.
To reach that conclusion, the Tribes reaffirm and rely upon their view of the existing
fishery restoration goals and principles for the Trinity River Fishery RestorationProgram,
as follows:
A. Restoration of the Trinity River fish populations to pre-TrinityDam
construction levels;
B. Fishery restoration shall be measured not only by returning anadromous fish
spawners but also by the ability of dependent tribal and non-tribal fishersto
participate fully in the benefits of restoration through meaningful subsistence
and commercial harvest opportunities;
C. An appropriate balance between stocks of natural and hatchery origins shall
be maintained to minimize negative interactions upon naturally produced fish
by hatchery mitigation releases;
D. A collaborative working relationship between federal agencies and the above
mentioned Tribes;
E. Portions of federal activities that are associated with fisheryrestoration
programs are Indian Programs for the purposes of the Indian Self-
Determination Act; and
F. The Tribes support full funding implementation of the Trinity River Recordof
Decision from funding sources outside of this Settlement.
Nothing in this section binds any Party to any particular interpretation of the law or
requires any Party to take particular actions, including performance of InterimMeasures,
or excuses any action othenvise required by Applicable Law or this Settlement.
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Wtness: Timothy J. Hemstreet
1.8 Tribal Water Riehts
This Settlement does not waive or in any way limit any treaty right, federallyreserved
right, or other right of the Tribes, or any federally recognized tribe, including anywater
or fishing right.
1.9 Klamath Basin Aereement
The States, the Federal Parties, and other entities are concrurently entering into the20l6
Klamath Power and Facilities Agreement. Each Party, other than PacifiCorp, shall
support and defend the2016 Klamath Power and Facilities Agreement, in its current
form as of April 6,2016, and its objectives in each applicable venue or forum in which it
participates, including any adminisfrative or judicial action. For purposes of this Section
1.9 only, the terms "support and defend" mean that the Party will advocate for the 2016
Klamath Power and FacilitiesAgreement or refrain from taking any action or making
any statement in opposition to the20l6 Klamath Power and Facilities Agreement. More
broadly, the Parties are committedto engage in good faith efforts to develop and enter
into a subsequent agreement or agreements pertaining to other water, fisheries, land,
agriculture, refuge and economic sustainability issues in the Klamath Basin with the
goal to complete such agreementor agreements within the next year.
2. Implementation of Settlement
2.1 General Duty to Support Implementation
The Parties shall fully support this Settlement and its implementation. The form, manner,
and timing of each Party's support are reserved to the discretion of each Party. Each
Party agrees to refrain from any action that does not support or further cooperative efforts
in support of the goals of this Settlement and its effectiveimplementation.
2.1.1 Leqislation
A. The Parties understand and agree that federal legislation is not
necessary to carry out this Settlement.
B. Within 60 days of the Amendment Effective Date, the CDFWwill
provide draft California legislation to the Parties regarding a limited
authorization for incidental take of Lost River Suckers, Shortnose
Sucker, Golden Eagles, southem Bald Eagles, Greater Sandhill Cranes,
or American Peregrine Falcon contingent upon the fulfillment of
certain conditions, ifsuch authorization is necessary for
implementation of this Settlement. After reasonable opportunity for
Parties to provide comments on the draft legislation, the State of
California shall Timely recommend the legislation.
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Rocky Mountain Power
Exhibit No. 2 Page 17 ol 221
Case No. PAC-E-21-01
\Mtness: Timothy J. Hemstreet
2.1.2 RezulatoryAoprovals
Subject to Sections 1.6.1,2.I, and,7.1.5, each Party shall support the application
for and granting of Regulatory Approvals consistent with this Settlement. The
preceding sentence shall not apply to the Public Agency Party exercisingthe
regulatory approval or to a Public Agency Party not participating inthe
proceeding.
2.1.3 Defense of Settlement
If an administrative or judicial action is brought against any Party to challengethe
validity of this Settlement or its implementation consistent with the Settlement,
each other Party shall endeavor to intervene or otherwise participate in such
action, subject to its discretion, necessary funding, and Section 1.6. Any such
participating Party will defend the Settlement. The form of suchdefense,
including what litigation positions to support or recommend in such action, shall
be left to the discretion of each participating Party in the action.
Each Party may comment on the consistency of any plan, other document, ordata
arising during the implementation of this Settlement and not otherwise set forthin
an Appendix or Exhibit to this Settlement. The Parties acknowledge that their
comments may conflict due to differing good-faith interpretations ofthe
applicable obli gations under this S ettlement.
2.1.4 Obliqation to Implement
A. General
Each Party shall implement each of its obligations under this Settlement in
good faith and with Due Diligence. Any obligation identified as an
obligation of all of the Parties does not obligate any individual Partyto
take any action itself or itself make any specific commitment other thanto
participate in the applicable procedures.
B. Cooperation Amone the Parties
Each Party shall cooperate in the implementation of this Settlement. A
Party shall not act in a manner that results in an action or requirementthat
is inconsistent with the Sefflement unless necessary to complywith
statutory regulatory, or other legal responsibility.
C. Covenant Not to Sue with Respect to Permittine and Performance of
Definite Plan
(1) No Party shall directly or indirectly through other entities oppose
the DRE's securing all permits and entering all contracts necessary
ll
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Vvitness: Timothy J. Hemstreel
for Facilities Removal consistent with the Definite Plan or any
Regulatory Approval, provided this clause does not apply to a
Public Agency Party exercising a RegulatoryApproval;
(2) After transfer of the Facilities to the DRE, each Partycovenants
not to sue any other Party for monetary or non-monetary relief for
harm arising from removal of any of the Facilities, provided this
covenant does not apply to claims against the DRE arising from
the negligence, recklessness, or willful misconduct of the DRE or
any ofits contractors, subcontractors, or assigns, or fromthe
actions or omissions of the DRE or any of its contractors,
subcontractors, or assigns inconsistent with the Definite Plan or in
violation of a Regulatory Approval. This provision does not apply
to rights under the indemnifications established in Section 7.1.3 ot
the States' agreements with the DRE required in Section 4.12.
2.1.5 Timeliness
Exhibit 4 describes the sequence of performance of specific obligations necessary
to achieve the bargained-for benefits of this Settlement. Exhibit 4 is subject to
change and modification as needed and is provided for guidance only. The
Parties shall undertake to implement this Settlement in a manner consistent with
this sequence. If any Party requires more time than permitted by this Settlement
to perform an obligation, that Party shall provide Notice to other Parties 30 days
before the applicable deadline, unless the applicable provision in this Settlement
establishes a different period. The Notice shall explain: (1) the obligation thatthe
Party is attempting to perform; (2) the reason that performance is or maybe
delayed; and (3) the steps the Party has taken or proposes to take to Timely
complete performance.
2.1.6 Force Majeure
A. Definition of Force Majeure
The term "Force Majeure" means any event reasonably beyond aParty's
control that prevents or materially interferes with the performance of an
obligation of that Party, that could not be avoided with the exercise ofdue
care, and that occurs without the fault or negligence of that Party. Force
Majeure events may be unforeseen, foreseen, foreseeable, or
unforeseeable, including without limitation: natural events; labor orcivil
disruption; breakdown or failure of Project works not caused by failureto
properly design, construct, operate, or maintain; or new regulations or
laws that are applicable to the Project (other than the Authorizing
Legislation). Force Majeure is presumed not to include normal inclement
weather, which presumption can be overcome by a preponderance ofthe
evidence provided by the non-performing Party.
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Witness: Timothy J. Hemstreet
B. Suspension of Oblisation
During a Force Majeure event, and except as otherwise provided in this
Settlement, a Party shall be relieved of any specific obligationdirectly
precluded by the event, as well as those other obligations performance of
which is materially impaired, but only for the duration of such event. The
non-performing Party bears the burden of proving by a preponderance of
the evidence the existence of Force Majeure, including the absence of
negligence and fault.
C. Remedies
If a Force Majeure event occurs, and except as otherwise provided inthis
Settlement:
(l) A Party that believes it is excused from performance pursuantto
Section 2.1 .6.8 shall provide Notice within 10 days of the onset of
the event. Such Notice shall describe the occrurence, nafure, and
expected duration ofsuch event and describe the steps the Party
has taken or proposes to be taken to prevent or minimize the
interference with the performance of any affected obligationunder
this Settlement;
(2) A Party shall thereafter provide periodic Notice to the otherParties
of the efforts to address and resolve a Force Majeure event; and
(3) If any other Party disputes the Party's claim of a Force Majeure
event, or the adequacy ofthe efforts to address and resolve such
event, such Party shall initiate the Dispute Resolution Procedures
stated in Section 8.6.
2.2 Ratanaking Legislation and Proceedines
Each Party shall support implementation of the Oregon Surcharge Act enacted as
Senate Bill 76, 2009 Or. Session Laws Chapter 690 in 2009 and authorizing the
collection of a customer surcharge for the costs of Facilities Removal, whichwas
codified as ORS 757.732 through 757.744. The Oregon Surcharge Act as codified is
attached to this Settlement as Appendix F.
The Parties understand and agree that the costs of Facilities Removal shall be funded as
specified in Section 4 of this Settlement. The Parties further understand and agreethat
funds allocated for Facilities Removal shall be managed and disbursed as specified in
Section 4 of this Settlement. In the event that (l) the California Legislature does not
adopt legislation by the time of the Secretarial Determination to place a ballotmeasure
before California voters that contains a provision to fund up to $250,000,000 (innominal
dollars) of the costs of Facilities Removal, or (2) the California voters do not adopt such
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Wtness: Timothy J. Hemstreet
ballot measure by the time of the Secretarial Determination, or (3) the CaliforniaPUC
does not adopt a California Klamath Surcharge, as defined herein and specified in
Section 4, or (4) the Oregon PUC does not adopt an Oregon Klamath Surcharge, as
defined in the Oregon Surcharge Act and specified herein, the Parties shall Meet and
Confer to attempt, in good faith, to identiff substitute funding and/or other alternatives to
cover the costs of Facilities Removal.
2.3 Project Water Rights: Klamath Basin Adjudication
2.3.1 Project Water Riehts
PacifiCorp's Oregon water rights will be processed and adjusted in accordance
with the principles of Oregon law and the W'ater Rights Agreement between
PacifiCorp and the State of Oregon attached to this Settlement as Exhibit l.
2.3.2 Klamath Basin Adjudication
The Parties support the efforts by PacifiCorp, the Klamath Tribes, Bureau of
Indian Affairs, and OWRD to develop a Klamath Basin Adjudication ("KBA")
Settlement Agreement of cases 282 and286 inthe KBA.
2.4 Lease of State-Owned Beds and Banks
Within 60 days of the Effective Date, PacifiCorp shall apply to the Oregon Departmentof
State Lands in accordance with state law for leases authorizing occupancy ofsubmerged
and submersible lands by the J.C. Boyle Dam, J.C. Boyle Powerhouse, and Keno Dam.
No Party shall be deemed to have admitted, adjudicated, or otherwise agreed to the State
of Oregon's claim to ownership of submerged and submersible lands by virtue ofthis
Settlement.
3. Secretarial Designation and Statement of Support
3.1 Statement of Support
In cooperation with the Secretary of Commerce and other federal agencies as appropriate,
the Secretary may make an affirmative statement of support for Facilities Removal if, in
the Secretary's judgment, Facilities Removal (1) will advance restoration of the salmonid
fisheries of the Klamath Basin, and (2) is in the public interest, which includes but is not
limited to consideration of potential impacts on affected local communities and Tribes.
3.2 SecretarialDesiernation
The Secretary, through execution of Amendment No. l, agrees that the DRE will act as
the entity with authority under ORS 757.738(3) to request transfer of funds held in the
appropriate trust account established under ORS 757.738. The DRE, its assigns, or
successors, shall expend funds in the amounts necessary and as consistent with the
Settlement to pay "the costs of removing the Klamath River dams" as that phrase is used
in oRS 7s7.736(tt).
t4
4.
Rocky Mountain Power
Exhibit No. 2 Page 21 of 221
Case No. PAC-E-21-01
VMtness: Timothy J. Hemstreet
successor, in accordance with a funding agleement as specified in Section 4.1.L2, hthe
amounts necessary to pay o'the costs of removing the Klamath River dams" as thatphrase
is used in ORS 757.736(ll).
Costs
4.1 Funds for the Purpose of Facilities Removal
The Parties agtee to pursue arangements for the creation of the funding sources
described below for the purpose of Facilities Removal.
4.1.1 The Customer Contribution
A. Within 30 days of the Effective Date, PacifiCorp shall request thatthe
Oregon PUC, pursuant to the Oregon Surcharge Act, establish trvo
non-bypassable customer surcharges, the Oregon J.C. Boyle Dam
Surcharge and the Oregon Copco I and IVhon Gate Dams Surcharge
(together, the "Oregon Klamath Surcharges"), for PacifiCorp's Oregon
customers to generate funds for the purpose of Facilities Removal.
PacifiCorp shall request that the Oregon PUC set the Oregon Klamath
Surcharges so that to the extent practicable the total annual collections
of the surcharges remain approximately the same during the collection
period.
B. Within 30 days of the Effective Date, PacifiCorp shall request thatthe
Califomia PUC establish a non-bypassable customer surcharge (the
"California Klamath Surcharge") for Pacifi Corp' s California
customers to generate funds for the purpose of Facilities Removal.
PacifiCorp shall request that the California PUC establish the
California Klamath Surcharge so that it will collect an approximately
equal amount each year that it is to be collected. PacifiCorp shall
request that such surcharge assigns responsibility among the customer
classes in an equitable manner. PacifiCorp shall also request that the
Califomia PUC set the California Klamath Surcharge so that it atno
time exceeds two percent of the rovenue requirements set by the
Califomia PUC for PacifiCorp as of January 1,2010.
C. The Parties agree that the total amount of funds to becollected
pursuant to the Oregon Klamath Surcharges and the California
Klamath Surcharge shall not exceed $200,000,000 (in nominal
dollars); these funds shall be referred to as the "Customer
Contribution."
D. PacifiCorp shall request that the Oregon PUC establish a surcharge so
that the amount collected under the Oregon Klamath Surcharges is
92% (amaximum of approximately $184,000,000) of thetotal
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\Mtness: Timothy J. Hemstreet
Customer Contribution, and with75% of the total OregonKlamath
Surcharges amount collected through the Oregon Copco I and IVkon
Gate Dams Surcharge and25o/o collected through the Oregon J.C.
Boyle Dam Surcharge.
E. PacifiCorp shall request that the California PUC establish a surcharge
so that the amount collected under the California Klamath Surcharge is
8% (amaximum of approximately $16,000,000) of the Total Customer
Contribution. The trustee of the Califomia Klamath Surcharge shall
apply 75o/o of the total California Klamath Surcharge amount collected
to the California Copco I and IVkon Gate Dams Trust Account and
25%o of the total California Klamath Surcharge amount collected to the
California J.C. Boyle Dam Trust Account.
F. PacifiCorp shall collect and remit the surcharges collected pursuantto
this section to the trustee(s) described in Section 4.2, below, to be
deposited into the appropriate California Klamath Trust Accounts and
Oregon Klamath Trust Accounts.
G. Consistent with Section 2.1 of this Settlement, each non-Federal Party
shall support the California Klamath Surcharge and the Oregon
Klamath Surcharges in the proceedings conducted by the California
PUC and the Oregon PUC, respectively, to the extent the proposed
Surcharges are consistent with this Settlement.
4.1.2 The California Bond Fundins
A. The California Legislature has approved a general obligationbond
("Bond Measure") containing a provision authorizing the issuance of
bonds for the amount necessary to fund the difference betweenthe
Customer Contribution and the actual cost to complete Facilities
Removal, which bond funding in any event shall not exceed
$250,000,000 (in nominal dollars). The bond language is set forth in
Appendix G-I. At its sole discretion, the State of California mayalso
consider other appropriate financing mechanisms to assist in funding
the difference between the Customer Contribution and the actual cost
of complete Facilities Removal, not to exceed $250,000,000 (in
nominal dollars).
B. Consistent with Applicable Law and Section 2.1, eachnon-federal
Party shall support the Klamath bond language in Appendix G-1;
provided that nothing in this Settlement is intended or shall be
construed to require aParty to support a Bond Measure that includes
authorizations unrelated to the implementation of this Settlement.
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Exhibit No. 2 Page 23 o't 221
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Wtness: Timothy J. Hemstreet
4.1.3 State Cost Cao
The Customer Contribution and the Califomia Bond Funding shall be thetotal
state contribution and shall be referred to together as the "State Cost Cap."
4.2 Establishment and Manaeement of Trust Accounts and California Bond Fundine
4.2.1 The Oreson Klamath Trust Accounts
A. In accordance with the Oregon Surcharge Act, the Oregon PUC will
establish two interest-bearing accounts where funds collectedby
PacifiCorp pursuant to the Oregon Klamath Surcharges shall be
deposited until needed for Facilities Removal purposes. The Oregon
J.C. Boyle Dam Account shall be established to hold funds collected
pursuant to the Oregon J.C. Boyle Dam Surcharge. The Oregon
Copco I and IVIron Gate Dams Account shall be established to hold
funds collected pursuant to the Oregon Copco I and IVkon Gate Dams
Surcharge. The Oregon J.C. Boyle Dam Account and the Oregon
Copco I and IVIron Gate Dams Account may be referred to together as
the "Oregon Klamath Trust Accounts."
B. In accordance with the Oregon Surcharge Act, the Oregon PUC will
select a trustee to manage the Oregon Klamath Trust Accounts. The
Parties may recommend a trustee for consideration by the Oregon
PUC.
4.2.2 The California Klamath Trust Accounts
A. Upon execution of this Settlement, Califomia shall request, and each
non-Federal Party shall support the request, that the CaliforniaPUC
establish two interest-bearing trust accounts where funds collectedby
PacifiCorp pursuant to the California Klamath Surcharge forthe
purpose of Facilities Removal shall be deposited until needed for
Facilities Removal purposes. The non-Federal Parties shall also
request that California and the California PUC establish the trust
accounts in a manner that ensures that the surcharge funds will notbe
taxable revenues to PacifiCorp. The California J.C. Boyle DamTrust
Account shall be established to hold 25o/o of the funds collected
pursuant to the California Klamath Surcharge. The Califomia Copco I
and IVkon Gate Dams Trust Account shall be established to hold 75%
of the funds collected pursuant to the California Klamath Surcharge.
The California J.C. Boyle Dam Trust Account and the Califomia
Copco I and IVIron Gate Dams Trust Account may be referredto
together as the "Califomia Klamath Trust Accounts."
B. California shall request, and each non-Federal Party shall supportthe
request, that the California PUC select a trustee to accept surcharge
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Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
funds from PacifiCorp and manage the California KlamathTrust
Accounts. The Parties may recommend a trustee for considerationby
the Califomia PUC.
4.2.3 The California Bond Fundine
In the event that the Bond Measure is placed on the ballot and approved byvoters,
bond funds available from the Bond Measure shall be managed pursuant to
California bond law; however, the State of California agrees that, to the extent
permitted by law, the California Bond Funding shall be managed and disbursed in
a manner consistent with and complementary to the management and
disbursement of the Customer Contribution.
4.2.4 Manasement of the Trust Accounts
A. Within six months of the Effective Date, the States in consultation
with the Federal Parties shall prepare draft trustee instructions for
submission to the respective PUCs. The States shall then requestthat
the California PUC or another designated agency of the State of
California, and the Oregon PUC work cooperatively to prepare joint
instructions to the trustee(s) of the Oregon Klamath TrustAccounts
and Califomia Klamath Trust Accounts, consistent with the draft
instructions, as to the following:
(l) Whether and when to disburse funds from the OregonKlamath
Trust Accounts and Califomia Klamath Trust Accounts to the
DRE;
(2) The methodology to be used by the trustee(s) to determinewhich
account or accounts to draw funds from for the purpose of
disbursing funds to the DRE;
(3) A protocol for the trustee(s) to use to ensure that the management
of the Customer Contribution is consistent with and
complementary to the management of the CaliforniaBond
Funding;
(4) Disbursement of funds under the circumstances described in
Section 4.4 below;
(5) A protocol for reallocating between Trust Accounts monies that
have already been deposited into the Trust Accounts, to be used by
the trustees, at the request of the States, for removal of specific
facilities; and
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Exhibit No. 2 Page 25 ol 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
(6) If the trustee is a federal agency, provisions ensuring that Trust
Account monies are not used for any other purpose than Facilities
Removal consistent with the trustee instructions and do not
become part ofany federal agency's or bureau's budget.
B. As necessary, the States, in consultation with PacifiCorp and the DRE,
will prepare draft trustee instructions revised as appropriate and
request that the California PUC or another designated agency ofthe
state of California, and the Oregon PUC work cooperatively toprepare
revised joint instructions to the trustee(s) of the Oregon KlamathTrust
Accounts and California Klamath Trust Accounts consistent withthe
draft revised instructions. The States and PacifiCorp will take such
other actions as may be reasonably necessary to facilitate the
distribution of the Customer Contribution.
4.3 Adjustrnent to Surcharees
As appropriate, the States shall consult with each other, PacifiCorp, and the Federal
Parties regarding adjustments to the California Klamath Surcharge or OregonKlamath
Surcharges necessitated by or appropriate considering the circumstances. Followingsuch
consultation, PacifiCorp will request that the California PUC and Oregon PUC adjustthe
Klamath Surcharges to be consistent with the recommendations developed throughthe
consultation. Any adjustment shall not alter the maximum level of the Customer
Contribution or State Cost Cap.
4.4 Disposition of Unnecessary or Unused Funds from the Oreeon and/orCalifornia
Klamath Trust Accounts
4.4.1 If, as described in Section 4(5) of the Oregon Surcharge Act, theOregon
Klamath Surcharges are finally determined to result in rates that are not
fair, just, and reasonable, the surcharges shall be refunded to customers in
accordance with the Oregon Surcharge Act and the trustee instructions.
4.4.2 In the event that the Oregon PUC finds that the Oregon KlamathTrust
Accounts contain funds in excess of actual costs necessary forFacilities
Removal, those excess amounts shall be refunded to customers or
otherwise used for the benefit of customers as set forth in Section a(9) of
the Oregon Surcharge Act and the trustee instructions.
4.4.3 In the event that, following Facilities Removal, the trustee of the
California Klamath Trust Account determines that the CaliforniaKlamath
Trust Account contains funds in excess of actual costs necessary for
Facilities Removal, the non-Federal Parties shall request that the
California PUC order those excess amounts to be refunded to customers or
otherwise used for the benefit of customers.
t9
Rocky Mountain Power
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Case No. PAC-E-2'|-01
Wtness: Timothy J. Hemstreet
4.4.4 If, as a result of the termination of this Settlement, or other cause, one or
more Project dams will not be removed:
A. All or part of the Oregon Klamath Surcharges shall be terminated and
the Oregon Klamath Trust Accounts disposed as set forth in
Section 4(10) of the Oregon Surcharge Act and the trustee instructions;
and
B. PacifiCorp shall request that the California PUC direct PacifiCorp to
terminate all or part of the surcharge, that the California PUC direct
the trustee to apply any excess balances in the CaliforniaKlamath
Trust Account to California's allocated share of prudently incurred
costs to implement FERC relicensing requirements, and that, if any
excess amount remains in the trust accounts after that application, that
the California PUC order that the excess amounts be refunded to
customers or otherwise be used for the benefit of customers.
4.5 Recovery of Net Investment in Facilities
4.5.1 Consistent with Section 3 of the Oregon Surcharge Act, PacifiCorp shall
request, and each non-Federal Party shall support the request, that the
Oregon PUC allow recovery of PacifiCorp's net investment in the
Facilities.
4.5.2 PacifiCorp shall request, and each non-Federal Party shall support the
request, that the California PUC conduct one or more proceedings to
implement the following:
A. That the California PUC determine a depreciation schedule for each
Facility based on the assumption that the Facility will be removed in
2020, and change that depreciation schedule at any time if removal of
the Facility will occur in a year other than 2020; and'
B. That the California PUC use the depreciation schedules adopted
consistent with Section4.S.Z.Aabove to establish rates and tariffs for
the recovery of California's allocated share of undepreciated amounts
prudently invested by PacifiCorp in the Facilities, with amounts
recoverable including but not limited to:
(l) Return on investment and return of investrnent;
(2) Capital improvements required by the Federal Parties or any
agency of the United States or any agency of the States forthe
continued operation of the Facility until Facilityremoval;
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Case No. PAC-E-21-01
Vvitness: Timothy J. Hemstreet
(3) Amounts spent by PacifiCorp in seeking relicensing of theProject
before the Effective Date of this Settlement;
(4) Amounts spent by PacifiCorp for settlement of issues relating to
relicensing or removal of the Facilities; and
(5) Amounts spent by PacifiCorp for the Decommissioning ofthe
Facilities in anticipation of Facilities Removal.
C. If any amount has not been recovered by PacifiCorp before a Facility
is removed, PacifiCorp shall request, and each non-Federal Party shall
support the request, that the Califomia PUC allow recovery ofthat
amount by PacifiCorp in PacifiCorp's rates and tariffs.
4.5.3 Rates and tariffs proposed pursuant to this Section 4.5 shall be separate
from, and shall not diminish the funds collected by, the Oregon and
California Klamath Surcharges.
4.6 Recovery of Costs of Onsoine Operations and ReplacementPower
4.6.1 Consistent with Section 6 of the Oregon Surcharge Act, PacifiCorp shall
request, and each non-Federal Party shall support the request, that the
Oregon PUC allow recovery of other costs incurred by PacifiCorp.
4.6.2 Subject to Section 2.1.2, each non-Federal Party shall supportPacifiCorp's
request to the California PUC for PacifiCorp to include in rates andtariffs
California's allocated share of any costs that are prudently incurred by
PacifiCorp from changes in operation of Facilities, including reductionsto
generation from the Facilities before removal of the Facilities and for
replacement power after the dams are removed.
4.6.3 Rates and tariffs proposed pursuant to this Section 4.6 shall be separate
from, and shall not diminish the funds collected by, the Oregon and
C alifornia Klamath Surcharges.
4.7 Treatrnent of Costs Related to Future Portfolio Standards and ClimateChanse
Leeislation
The Parties agree to Meet and Confer at PacifiCorp's request regarding provisions to
address potential customer impacts from renewable portfolio standards and climate
change emissions requirements.
4.8 Acknowledenrent of Independence of Oreeon PUC and California PUC
The Parties acknowledge that the Oregon PUC and California PUC each is aseparate
state agency that is not bound by this Settlement. Nothing in this Settlement expands,
2l
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Vvitness: Timothy J. Hemstreet
limits, or otherwise affects any authority of the respective commissions regardingthe
customer surcharges and trust accounts, recovery of net investment, or recovery ofcosts
of ongoing operations or replacement power. Because the Parties cannotprovide
assurance that either commission will decide to or be allowed to implement any ofthe
provisions for funding Facilities Removal, failure of a commission to do so is not a
breach of this Settlement by any Party.
4.9 Consultation
Before frling the requests to the California PUC and Oregon PUC described inSections
4.5 and 4.6, above, PacifiCorp shall undertake to consult with the Parties, pursuant to a
confidentiality agreement among the Parties or a protective order issued by therelevant
PUC, so that the requested rates can be explained and the basis for such rates can be
provided. Further, before any request to the California PUC or the Oregon PUC to
reduce or increase a surcharge in the event the amount needed for CustomerContribution
is determined to be less or more than the level of Customer Contribution specified in
Section 7.3.2.A, the States and PacifiCorp shall undertake to consult with allParties.
4.10 United States Not Resoonsible for Costs of Facilities Removal
The United States shall not be liable or responsible for costs of FacilitiesRemoval.
4.tt Parties' Costs Related to Facil ities Removal
Subject to Section 4.4,the funds accumulated pursuant to Section 4 are solely for use in
accomplishing Facilities Removal, including but not limited to development ofthe
Definite Plan, all necessary permitting and environmental compliance actions, and
construction/project management for Facilities Removal. Nothing in this section shallbe
interpreted as a limitation on ttre State of California's use of California Bond Funding, or
funds collected pursuant to the California Klamath Surcharge and deposited into the
California Copco I and2 and Iron Gate Dams Trust Account, for environmental review;
provided the use of any funds from California Copco I and2 and Iron Gate Dams Trust
Account may be offset by California Bond Funds to achieve the target dates set forth in
Section 7.3.
4.12 Funding and Grant Aereements
4.12.1 On or around June 15, 2016, CNRA will enter into an agreement withthe
DRE pertaining to the use of funds from the Customer Contribution and
California Bond Funding.
4.12.2 On or around June 15, 2016, and as is necessary at any time thereafter,
the DRE will enter into an agreement withthe Oregon PUC pertaining
to the use of funds from the Customer Contribution in a manner not
inconsistentwith the Settlement and ORS 757.738(3).
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Rocky Mountain Power
Exhibit No. 2 Page 29 of 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemsheet
4.12.3 On or around June 15,2016, CNRA will enter into a funding agreement
with the DRE and any other entity as appropriate. The funding agreement
will include conditions not inconsistent with the Settlement pertainingto
the use of the Califomia Klamath Trust Accounts.
4.12.4 Following appropriation by the California legislature and consistentwith
the agreement in Section 4.12.I, CNRA will enter into a grant
agreement(s) with the DRE. The grant agreement(s) shall include
conditions not inconsistent with the Settlement pertaining to the use ofthe
California Bond Funding.
5. Local Community Power
5.1 Power Development
5.1.1 PacifiCorp and the irrigation-related Parties will in good faith cooperatein
the investigation or consideration ofjoint development and ownership of
renewable generation resources and the purchase by PacifiCorp ofpower
from renewable energy projects developed by KWAPA or otherparties
related to the Klamath Reclamation Project or off-project irrigators.
PacifiCorp and interested Public Agency Parties will in good faith
cooperate in the investigation or consideration ofjoint development and
ownership of potential renewable generation resources and the purchase
by PacifiCorp of power from renewable energy projects developedby
interested Public Agency Parties. Nothing in this Settlement requires any
Party to enter into a specific transaction related to such development,
ownership or purchase, but PacifiCorp, interested Public AgencyParties
and the irrigation-related Parties desire to take actions in their mutual
beneficial interest where opportunities arise.
5.I.2 Pursuant to that certain Memorandum of Understanding dated October 15,
2001 among the Western Governors Association and various federal
agencies, the Secretary and the State of Califomia shall seek to designate
Siskiyou County as a Westem Renewable Energy Zone and the Secretary
and the State of Oregon shall seek to designate Klamath County as a
Western Renewable Energy Zone. The Federal Parties will work withthe
Counties and other Parties to explore and identiff potential ways to
expand transmission capacity for renewable resources within the Counties.
5.2 [Section deleted]
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Exhibit No. 2 Page 30 ol 221
Case No. PAC-E-21-01
Vvitness: Timothy J. Hemstreet
5.3 Transmission and Distribution of Energy
lnterior, KWAPA, KWUA and UKWUA agree that federal power can contributeto
meeting power cost targets for irrigation in the Upper Klamath Basin. To that end, and
consistent with applicable standards of service and the Pacific Northwest PowerPlanning
and Conservation Act, 16 U.S.C. $ 839 e/ seq.,Intaior will acquire power from the
Bonneville Power Administration ("Bonneville") to serve all "eligible loads" located
within Bonneville's authorized geographic area. Interior and Bonneville will engage in
an open and transparent process that will provide for public review and comment on any
proposed agreement. For purposes of the acquisition of federal power, Interiordefines
Klamath eligible loads to include both on and off-project loads. Such acquisitions are
subject to Bonneville's then effective marketing policies, contracts, and applicable
priority firm power rate.
For an additional, standard transmission charge, Bonneville will deliver powerto
PacifiCorp at the Captain Jack or Malin substations or other points as may bemutually
agreed to by Bonneville and PacifiCorp ("Points of Delivery") and PacifiCorpwill
deliver the energy to eligible loads under applicable tariffs.
Interior, KWAPA, KWUA, UKWUA and PacifiCorp agree to continue to work ingood
faith to identify and implement a mutually agreeable approach for delivering acquired
federal power to eligible loads. PacifiCorp agrees to receive any federal power atthe
Points of Delivery and to deliver such power to the eligible loads pursuant and subjectto
the following terms and conditions:
5.3.1 The terms and conditions related to accessing PacifiCorp's transmission
system, to the extent that it is necessary, will be consistent with
PacifiCorp's Open Access Transmission Tariff ("OATT").
5.3.2 The terms and conditions related to accessing PacifiCorp's distribution
system will remain subject to the jurisdiction of the Califomia Public
Utilities Commission for distribution facilities located in California and
the Oregon Public Utility Commission for distribution facilities locatedin
Oregon. In California and Oregon, the respective PUCs have approved
unbundled delivery service tariffs for PacifiCorp to implement direct
access legislation. The Parties agree that these unbundled deliveryservice
tariffs can enable the delivery of federal power. For power acquired by
Interior from Bonneville, PacifiCorp will charge an unbundleddistribution
rate that is based on the Oregon Commission-approved tariff applicableto
the delivery of Bonneville power to eligible loads in Oregon.
To the extent that PacifiCorp's existing tariffs require revision in orderto
allow PacifiCorp to implement the mutually agreeable approach,
PacifiCorp shall request such revision by the Commission having
jurisdiction.
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Rocky Mountain Power
Exhibit No. 2 Page 31 ot 221
Case No. PAC-E-21-01
\A/itness: Timothy J. Hemstreet
The Parties understand and agree that PacifiCorp shall recover its costs
incurred in providing the delivery services required under the mutually
agreeable approach and that such services will not be subsidized by
PacifiCorp's other retail customers. PacifiCorp, Interior, KWUA,
KWAPA, and UKWUA agree to work cooperatively to identifyand
analyze, as necessary, PacifiCorp's costs for delivery services as part of
identification of any such mutually agreeable approach. The Parties
further agree that the costs of providing delivery services will be
recovered pursuant to a tariff or tariffs established by the respective PUC
based on cost-of-service principles and a finding by the PUC that therates
charged under the tariffls] are fair, just, reasonable and sufficient.
5.3.3 PacifiCorp agrees to work in good faith to develop mutuallyagreeable
revisions to existing provisions of state or federal law, if necessary to
implement the mutually agreeable approach.
5.3.4 PacifiCorp agrees to work in good faith with Bonneville, Interior,
KWAPA, KWUA and UKWUA and other Parties as the case may be, to
resolve, on a mutually agreeable basis, any technical and administrative
issues (such as billing and metering) that may arise with respectto
PacifiCorp's delivery of power to the eligible loads.
5.3.5 It is the Parties' intent that this Agreement will not require PacifiCorp to
modify its existing transmission or distribution facilities. PacifiCorp may
elect to do so at the sole cost and expense of the Party or entity requesting
such modification.
5.3.6 At such time as the eligible loads are prepared to and technically ableto
receive federal power, PacifiCorp, Interior, KWAPA, KWUA and
UKWUA agree to work cooperatively with each other to transitionthe
eligible loads from fuIl retail service on a mutually agreeable basis. The
Parties acknowledge that for any eligible load that has received federal
power pursuant to this section, PacifiCorp will no longer have the
obligation to plan for or meet the generation requirernents for these loads
in the future, provided, however, that PacifiCorp agrees to work
cooperatively to provide generation services to eligible loads in a manner
that is cost-neutral to other PacifiCorp customers in the event that a
contract for federal power is no longer available. Interior, KWAPA,
KWUA and UKWUA agree to provide notice to PacifiCorp as soon as
practicable after becoming aware that federal power will no longerbe
available to serve any eligible loads.
5.3.7 lnterior, in consultation with KWAPA, KWUA and UKWUA, shall
Timely develop a preliminary identification of the eligible loads for
purposes of Section 5.3. Interior, in consultation with KWAPA, KWUA
and UKWUA, shall provide notification to PacifiCorp identifying the final
25
Rocky Mountain Power
Exhibit No. 2 Page 32 ot 221
Case No. PAC-E-21-01
Vvitness: Timothy J. Hemstreet
eligible loads for purposes of Section 5.3, not later than 120 days before
delivery of federal power to any such eligible loads is to begin. The
mutually agreeable approach will address the manner by which lnterior
provides notification to PacifiCorp of any changes to eligible loads.
s.3.8 lnterior agrees to work cooperatively to assign or delegate ortransition
functions of lnterior to KWAPA or another appropriate entity subjectto
the terms of this Section.
5.3.9 If lnterior or KWAPA or UKWUA are able to acquire power from any
entity other than Bonneville for eligible loads in either Oregon or
California, PacifiCorp, KWAPA, UKWUA, lnterior, and KWUA, as
applicable, will work cooperatively to agree on a method fortransmission
and delivery.
5.3.10 Upon termination of this Settlement, PacifiCorp agrees to provide service
under the terms of its approved delivery tariff until or unless the respective
PUC determines that the applicable tariff should no longer be in place. It
is the intention of PacifiCorp, Interior, KWUA, KWAPA, andUKWUA
that the general principles of cooperation expressed in Section 5 continue
beyond the term of this Settlement.
5.4 Irieator Rates
In consultation with Klamath Basin irrigators, PacifiCorp will continue to explore
alternative rate structures and programs, such as time-of-use rates or demand control
programs.
6. Interim Operations
6.1 General
Interim Measures under this Settlement consist of: (l) Interim Measures included aspart
of PacifiCorp's Interim Conservation Plan ("ICP Interim Measures") (Appendix C); and
(2) Interim Measures not included in the Interim Conservation Plan ('Non-ICP
Measures") (Appendix D). In addition, PacifiCorp's Interim Conservation Plan includes
certain measures for protection of listed sucker species not included as part of this
Settlement.
6.1.1 PacifiCorp Performance
PacifiCorp shall perform the Interim Measures in accordance with the terms and
schedule set forth in Appendices C and D as long as this Settlement is in effect
during the Interim Period. However, if this Settlement terminates, PacifiCorp
shall continue performance of the Iron Gate Turbine Venting until the time FERC
issues an order in the relicensing proceeding. PacifiCorp shall have no obligation
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Rocky Mountain Power
Exhibit No. 2 Page 33 of 221
Case No. PAC-E-21-01
Witness: Timothy J. Hemstreet
under this Settlement to perform any other of the Interim Measures ifthis
Settlement terminates, but may implement certain ICP and Non-ICP Interim
Measures for ESA or CWA purposes or for any other reason. PacifiCorp reserves
its right to initiate termination pursuant to Section 8.1 1.1.C, if the Services fail to
provide incidental take authorizatiorlin a Timelyway.
6.L2 Duty to Support
Subject to the reservations in Sections I.6,6.2, and6.3.4, each Party shall support
the Interim Measures set forth in Appendices C and D, and will not advocate
additional or alternative measures for the protection of environmental resources
affected by the Project during the InterimPeriod.
6.1.3 Permittine
A. PacifiCorp or the DRE (as applicable) shall comply with all federal,
state, and local laws and obtain all federal, state, and local permits
related to Interim Measures, to the extent such laws and permits are
applicable.
B. FERC Enforcement and Jurisdiction
(l) The Parties agree that enforcement of the terms of the current
license, as extended through annual licenses, shall be exclusively
through FERC. If the annual license is amended to incorporate any
of the lnterim Measures, a Party may seek compliance pursuant to
any remedies it may have under Applicable Law.
(2) Subject to the reservations in Section 6.3.4,PacifrCorp will
implement lnterim Measures and the Klamath RiverTMDLs,
subject to any necessary FERC or other RegulatoryApprovals
6.1.4 Interim Power Ooerations
Consistent with the operation and maintenance agreement contemplated in
Section 7.I.6,PacifiCorp shall continue to operate the Facilities for the benefit of
customers and retain all rights to the power from the Facilities until each Facility
is transferred and Decommissioned, including all rights to any power generated
during the time between transfer of the Facility to the DRE andDecommissioning
of the Facility byPacifiCorp.
6.1.5 Adjustment for Inflation
For any funding obligation under a Non-ICP Interim Measure in Appendix D
expressly made subject to adjustment for inflation, the following formula shallbe
applied at the time ofpayment:
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Rocky Mountain Power
Exhibit No. 2 Page 34 ot 221
Case No. PAC-E-21-01
Vvltness: Timothy J. Hemstreet
AD: D x (CPI-U t) /(CPI-U")
WHERE:
AD : Adjusted dollar amount payable.
D : Dollar amount prescribed in the InterimMeasure.
CPI-UI: the value of the published version of the Consumer Price lndex-Urban
for the month of September in the year prior to the date a dollar amount is
payable. (The CPI-U is published monthly by the Bureau of Labor Statistics of
the federal Department of Labor. If that index ceases to be published, any
reasonably equivalent index published by the Bureau of Economic Analysis may
be substituted by written agreement of the Parties.)
CPI-U.: the value of the Consumer Price lndex-Urban for the month and year
corresponding to the Effective Date of this Settlement.
6.2 Interim Conservation Plan
6.2.1 Application byPacifiCorp
PacifiCorp shall apply to the Services pursuant to ESA Section l0 andapplicable
implementing regulations to incorporate the Interim Conservation Planmeasures,
including both Appendix C (ICP Interim Measures) and the InterimConservation
Plan measures for protection of listed sucker species not included in Appendix C,
into an incidental take permit. PacifiCorp also may apply in the future to FERC
to incorporate some or all of the Interim Conservation Plan measures as an
amendment to the current annual license for the Project.
6.2.2 Applicable Actions by the Services under the ESA
The Services shall review PacifiCorp's application to incorporate the Interim
Conservation Plan measures into an incidental take permit pursuant to ESA
Section 10 and applicable implementing regulations. Subject to Section 2. 1 .2,
each Party shall support PacifiCorp's request for a license amendment or
incidental take permit to incorporate the lnterim Conservation Planmeasures.
Provided, however, the Services roserve their right to reassess these interim
measures, as applicable, in: (1) developing a biological opinion pursuant to ESA
Section 7 or reviewing an application for an incidental take permit pursuant to
ESA Section 10 and applicable implementing regulations; (2) reinitiating
consultation on any final biological opinion pursuant to-applicable implementing
regulations; or (3) revoking any final incidental take permit pursuant to the ESA,
applicable implementing regulations, or the terms of the permit. Providedfurther,
other Parties reserve any applicable right to oppose any such actions bythe
Services.
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Exhibit No. 2 Page 35 of 221
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Witness: Timothy J. Hemstreet
6.2.3 Potential Modifications of Measures
The Services shall provide the Parties Notice upon issuance of any finalbiological
opinion or incidental take permit issued by the Services pursuant to the ESA
regarding the ICP lnterim Measures (Appendix C). If the terms of any suchfinal
biological opinion or incidental take permit include revisions to the ICP Interim
Measures, those measures in the Settlement shall be deemed modified to conform
to the provisions of the biological opinion or incidental take permit ifPacifiCorp
agrees to such modifications. If PacifiCorp does not agree to suchmodifications,
PacifiCorp reserves the right to withdraw its application for license amendment or
refuse to accept an incidental take permit regarding the ICP InterimMeasures.
6.3 TMDLs
6.3.1 PacifiCorp Implementation
Subject to the provisions of this Section 6.3.1, PacifiCorp agrees to implement
load allocations and targets assigned the Project under the States' respective
Klamath River TMDLs, in accordance with OAR chapter 340, Division 42,and
California Water Code Division 7, Chapter 4, Article 3. It is the expectation of
the Parties that the implementation of the commitments in this Settlement,
coupled with Facilities Removal by the DRE, will meet each State's applicable
TMDL requirements. PacifiCorp's commitment to develop and carry out TMDL
implementation plans in accordance with this Settlement is not an endorsementby
any Party of the TMDLs or load allocations therein.
6.3.2 TMDL Implementation Plans
A. No later than 60 days after ODEQ's and the North Coast Regional
Water Quality Control Board's (NCRWQCB's) approval, respectively,
of a TMDL for the Klamath River, PacifiCorp shall submit to ODEQ
andNCRWQCB, as applicable, proposed TMDL implementation
plans for agency approval. The TMDL implementation plans shall be
developed in consultation with ODEQ and NCRWQCB.
B. To the extent consistent with this Settlement, PacifiCorp shallprepare
the TMDL implementation plans in accordance with OAR340-042-
0080(3) and California Water Code section 13242, respectively. The
plans shall include a timeline for implementing management strategies
and shall incorporate water quality-related measures in theNon-ICP
Interim Measures set forth in Appendix D. Facilities Removal bythe
DRE shall be the final measure in the timeline. At PacifiCorp's
discretion, the proposed plans may further include otherplanned
activities and management strategies developed individually or
cooperatively with other sources or designated management agencies.
ODEQ and NCRWQCB may authorize PacifiCorp's use of offsite
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Rocky Mountain Power
Exhibit No. 2Page36 of 221
Case No. PAC-E-21-01
Witness: Timothy J. Hemstreet
pollutant reduction measures, subject to an iterative evaluation and
approval process; provided, any ODEQ authorization of such offsite
measures conducted in Oregon solely to facilitate attainment of load
allocations in California waters shall not create an ODEQ obligationto
administer or enforce the measures.
6.3.3 Keno Load Allocation
Subject to Section 6.3.4, tn addition to other Project facilities and affected waters,
PacifiCorp's TMDL implementation plan under Section 6.3.2 shall include water
quality-related measures in the Non-ICP Interim Measures set forth in Appendix
D that are relevant to the Keno facility and affected waters for which the Project
is assigned a load allocation. PacifiCorp shall implement Keno load allocations in
accordance with the approved TMDL implementation plan under Section 6.3 up
until the time of transfer of title to the Keno facility to Interior. Upon transferof
title to the Keno facility as set forth in Section 7.5 of this Settlement, the load
allocations shall no longer be PacifiCorp's responsibility. Funding, ifnecessary,
for post-transfer Keno load allocation implementation requirements will be
provided by other non-PacifiCorp sources.
6.3.4 TMDL Reservations
A. PacifiCorp's TMDL implementation obligations under this Settlement
are limited to the water quality-related measures in the Interim
Measures set forth in Appendices C and D and any additional or
different measures agreed to by PacifiCorp and incorporated into an
approved TMDL implementation plan. If a TMDL implementation
plan for PacifiCorp as finally approved, or a final discharge permitor
other regulatory decision intended to implement a TMDL orwater
quality standard or regulation, requires measures that have not been
agreed to by PacifiCorp and that are materially inconsistent withthe
Interim Measures, PacifiCorp may initiate termination under Section
8.1l.l.c.
B. PacifiCorp reserves the right to seek modification of a TMDL
implementation plan in the event this Settlement terminates. The
States reserve their authorities under the CWA and state law to revise
or require submission of new TMDL implementation plans in the
event this Settlement terminates or an implementation plan measure or
Facilities Removal does not occur in accordance with the timeline in
the approved implementation plans. Other Parties reserve whatever
rights they may have under existing law to challenge the TMDLs or
TMDL implementation plans in the event this Settlement terminates.
C. To the extent it possesses rights outside of this Settlement, no Party
waives any right to contest: a Klamath River TMDL; specificTMDL
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Exhibit No. 2 Page 37 of 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
load allocation; decision on a PacifiCorp TMDL implementationplan;
or final discharge permit or other regulatory decision intended to
implement a TMDL or water quality standard or regulation, if
materially inconsistent with this Sefflement.
6.4 Other Project Works
6.4.1 East SideAM Side Facilities
A. PacifiCorp will apply to FERC for an order approving partial surrender
of the Project license for the purpose of decommissioning the East
Side/IVest Side generating facilities unless PacifiCorp, in consultation
with the state of Oregon, the Federal Parties, and the Tribes, agrees to
an alternative disposition of these facilities. PacifiCorp will filethe
application consistent with applicable FERC regulations, and after
consultation with the Parties. Notwithstanding Section 2.l.2,the
Parties reserve their rights to submit comments and otherwise
participate in the FERC proceeding regarding the conditions under
which decommissioning should occur. PacifiCorp reserves the rightto
withdraw its surrender application for these facilities if any FERC
order or other Regulatory Approval in connection with the surrender
application would impose unreasonable conditions on that surrender.
B. Upon FERC approval, and in coordination with Reclamation and
pursuant to Section 7.5.2,PacifiCorp shall decommission the East
Side/IVest Side facilities in accordance with the FERC order
approving the decommissioning, with the costs of such
decommissioning to be recovered by PacifiCorp through standard
ratemaking proceedings.
C. Upon completion of decommissioning and subject to FERC's and state
requirements, PacifiCorp and Interior shall discuss possible transfer of
the following lands to Interior: Klamath County Map Tax Lots R-
3809-00000-05800-000, R-3809-00000-05900-000, and R-3809-
00000-05700-000, or any other mutually-agreeable lands associated
with the East Side and West Side Facilities on terms and conditions
acceptable to PacifiCorp and Interior.
6.4.2 Fall Creek Hydroelectric Facility
PacifiCorp will continue to operate the Fall Creek hydroelectric facilityunder
FERC's jurisdiction unless and until such time as it transfers the facilityto
another entity or the facility is otherwise disposed of in compliancewith
Applicable Law.
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Exhibit No. 2Page38 of 221
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\Mtness: Timothy J. Hemstreet
6.5 Abeyance of Relicensine Proceedine
6.5.1 Within 30 days of the Amendment Effective Date, PacifiCorp will filethe
Settlement with FERC and an expedited motion asking FERC to hold
PacifiCorp's Project relicensing proceeding in abeyance. Each Party
agrees to refrain from any action that does not support PacifiCorp's
request to abate the FERC relicensing docket for the Project. Themotion
will specify that the abeyance should remain in effect while the DRE's
surrender application is pending and until after FERC takes action on the
DRE's surrender application as provided in Section 7 .1.7 .A.
6.5.2 Within 15 days after FERC issues an abeyance order for the Project
relicensing proceeding, PacifiCorp will withdraw its CWA Section40l
certification applications currently pending before the California State
Water Resources Control Board and ODEQ.
6.5.3 If FERC denies PacifiCorp's motion to abate or fails to rule on the motion
before July 1, 2016,PacifiCorp will ask the California State Water
Resources Control Board and the ODEQ to abate permitting and
environmental review for PacifiCorp's FERC Project No. 2082 licensing
activities, including but not limited to water quality certifications under
Section 401 of the CWA and review under CEQA, during the Interim
Period. If FERC does not hold the Project relicensing proceeding in
abeyance, PacifiCorp will withdraw and re-file its relicensing applications
for Section 401 certifications as necessary to avoid the certiflrcations being
deemed waived under the CWA during the Interim Period.
6.5.4 If no abeyance of relicensing proceedings is approved by FERC or, as
applicable, the California State Water Resources Control Board or the
ODEQ, or an abeyance is ordered then later lifted, then the Parties are
excused from their duty to support this Settlement to the extent necessary
to maintain their rights and arguments in the Project relicensing
proceedings, and any Party may initiate the Meet and Conferprocedures
described in Section 8.7.
7. DRE, Transfer, Surrender, and Facilities Removal
This section describes the measures, schedule, and regulatory compliance duringtransfer,
surrender, and removal of Facilities under this Settlement.
7.1 DRE
7.1.I Execution of Settlement
The Parties expect that the DRE will become aParty by executing the Settlement
on or around July I,2016, as provided in Section 9.4.
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Case No. PAC-E-21-01
Wtness: Timothy J. Hemsheet
7.1.2 Capabilities
A. The Parties agree that the DRE must possess the legal, technical, and
financial capacity to:
(l) Accept and expend non-federal funds consistent with Section
4.2.4;
(2) Accept transfer of the FERC license and title for the Facilities from
PacifiCorp;
(3) Seek and obtain necessary permits and other authorizations to
implement Facilities Removal;
(4) Enter into appropriate contracts and grant agreements for
effectuating Facilities Removal ;
(5) Perform, directly or by oversight, Facilities Removal;
(6) Prevent, mitigate, and respond to damages the DRE or any of its
contractors, subcontractors, or assigns cause during the course of
Facilities Removal, and, consistent with Applicable Law, respond
to and defend associated liability claims against the DRE or anyof
its contractors, subcontractors, or assigns, including costs thereof
and any judgments or awards resulting therefrom;
(7) Carcy the required insurance and bonding set forth in Appendix L
to respond to liability and damages claims associatedwith
Facilities Removal against the DRE or any of its contactors,
subcontractors, or assigns;
(8) Meet the deadlines set forth in Exhibit 4; and
(9) Perform such other tasks as are reasonable and necessary for
Facilities Removal.
B. Before the DRE and PacifiCorp file the joint application to transferthe
license for the Facilities, the DRE will Timely demonstrate to the
reasonable satisfaction of the States and PacifiCorp that it possesses
the legal, technical, and financial capacity to accomplish the tasks in
Sections 7.1.2.A(I) through (5), (8), and (9). PacifiCorp and the States
will consult if the DRE fails to make the demonstration required inthis
subsection.
C. Within six months of the DRE's execution of the Settlement, theDRE
will include in an informational filing in the FERC license transfer
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Rocky Mountain Power
Exhibit No. 2 Page 40 ot 22'l
Case No. PAC-E-21-01
Vvitness: Timothy J. Hemstreet
proceeding proofthat it possesses the legal, technical, and financial
capacity to accomplish the tasks in Sections 7.1.2.A(6) and (7). This
filing will include documentation that the DRE meets therequirements
of Parts II, III, and IV of Appendix L and is capable of fulfilling its
obligations under Section 7.1.3. The DRE will not provide the filing if
either of the States or PacifiCorp objects to the filing after areasonable
opportunity to review before submission to FERC. The six-month
deadline may be changed by agreement of the DRE, the States, and
PacifiCorp. The Parties will Meet and Confer if the DRE failsto
provide the informational filing to FERC.
7.1.3 LiabilitvProtection
A. By executing this Settlement, the DRE agrees, on its behalf and on
behalf of the DRE's employees, contractors, subcontractors, and
authorized agents or assigns to indemnify, hold harmless, and defend
PacifiCorp, the state of Califomia, and the state of Oregon for, from,
and against any and all claims, actions, proceedings, damages,
liabilities, monetary or non-monetary harms or expense arising from,
relating to, or triggered by Facilities Removal, including but not
limited to:
(l) Harm, injury, or damage to persons, real property, tangible
property, natural resources, biota, or the environment;
(2) Harm, uuury, or damage caused by the release, migration,
movement, or exacerbation of any material, object, or substance,
including without limitation hazardous substances; and
(3) Breaches or violations of any Applicable Law, Regulatory
Approval, authorization, agreement, license, permit, or other legal
requirement of any kind.
B. If the DRE partially assigns its responsibilities under this Settlement,
the DRE and its assign will be jointly and severally obligatedunder
this section.
7.I.4 License Transfer Conditions and Timins
Before the FERC license transfer to the DRE will become effective, the DRE
must demonstrate to PacifiCorp's and the States' reasonable satisfaction thatthe
DRE has met the obligations in Appendix L and the following conditions:
A. The DRE has provided Notices required under Section 7.2.1.8;
B. The DRE has met the requirements of Section 7.1.3 and Appendix L;
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Vvitness: Timothy J. Hemstreet
C. PacifiCorp and the States agree that the DRE has made sufficient and
Timely progress in obtaining necessary permits and approvals to
effectuate Facilities Rernoval;
D. The DRE, the States, and PacifiCorp are assured that suffrcient
funding is available to carry out Facilities Rernoval;
E. The DRE, the States, and PacifiCorp are each assured thattheir
respective risks associated with Facilities Rernoval havebeen
sufficiently mitigated consistent with Appendix L;
F. The DRE, the States, and PacifiCorp agree that no order of a court or
FERC is in effect that would prevent Facilities Removal;
G. The DRE and PacifiCorp have executed documents conveyingthe
property and rights necessary to carry out Facilities Removal; and
H. The DRE accepts license transfer under the conditions specifiedby
FERC in its order approving transfer.
7.I.5 FERC Application for Transfer
A. On or around July 1, 20l6,PacifrCorp and the DRE will jointly filean
application to remove the Facilities from the Project license,
redesignate the Facilities with a new project number, and transferthe
redesignated FERC license for the Facilities to the DRE.
B. The application for transfer may include proposals to decommission
the East Side and West Side facilities, subject to Section 6.4.1 ofthis
Settlement; remove the Keno facilities from the Project license under
Section 7.5 of this Settlement; and transfer the Fall Creekdevelopment
to a third party for purposes of relicensing.
C. PacifiCorp and the DRE will file the joint application for ftansferat
FERC concurrent with the DRE's application for surrender and
removal of the Facilities, retaining the2020 target date forFacilities
Removal.
D. The joint application for transfer will request that FERC incorporate
the conditions in SectionT .I.4 into the transfer order and require that
transfer will not become effective until the DRE, or PacifiCorp andthe
DRE jointly (as appropriate), file notice with FERC whenthose
conditions have been satisfied.
35
Rocky Mountain Power
Exhibit No. 2 Page 42 ot 22'l
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
7.1.6 Operation and Maintenance Aereement
On or around July 1, 2016, the DRE and PacifiCorp will enter into an operation
and maintenance agreement allowing PacifiCorp to continue operating the
Facilities for the benefit of its customers following transfer of the FERC Facilities
license to the DRE. The conditions of operation under this agreement will be
consistent with interim operations described in Section 6 and Appendices B, C,
and D, and will include requirements that PacifiCorp pay all costs associatedwith
operating the Facilities and indemniff, defend, and hold harmless the DREwith
respect to those operations. The DRE and PacifiCorp will obtain the concurrence
of the States for any such agreement.
7.1.7 FERC Application for Surrender
A. Concurrently with the joint application for license transfer, the DRE
will file an application with FERC to surrender the FERC license for
the Facilities for the purpose of Facilities Removal, which will include
a copy of this Settlement and the Detailed Plan. The DRE willrequest
that FERC defer acting on the application until the conditions in
Section 7.1.4 are satisfied. The DRE will take any action necessaryto
obtain necessary FERC authorization to carry out Facilities Removal
in accordance with this Settlement. PacifiCorp will providetechnical
support to the DRE and to FERC in processing the surrender
application, but will not be a co-applicant or co-licensee on the
surrender application unless otherwise mutually agreed upon withthe
DRE.
B. Concurrently with the joint application for license transfer and the
DRE's application to FERC for surrender, the DRE will file
applications seeking state water qualrty 401 certifications forFacilities
Removal with the California State Water Resources Control Board and
the ODEQ.
7.1.8 Performance of Facilities Removal
The DRE will perform Facilities Removal in accordance with the DefinitePlan,
as approved and as may be modified by the FERC surrender order and other
applicable Regulatory Approvals. The DRE will complete final design andcost
estimates before initiating Facilities Removal.
7.1.9 Other Rezulatory Approvals for Facilities Removal
The DRE will take any action necessary to obtain other RegulatoryApprovals
necessary to effectuate Facilities Removal in accordance with this Settlement,
except that PacifiCorp will file and support applications to obtain thenecessary
36
Rocky Mountain Power
Exhibit No. 2 Page 43 of 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
state commission approvals for the transfer of assets to the DRE in accordance
with this Settlement.
7.I.10 Assienment
The DRE may assign to another entity any of its responsibilities underthis
Settlement, including the DRE responsibilities described in this section. This
assignment is subject to any necessary Regulatory Approvals. The DRE maynot
assign its responsibilities under this Settlement without the prior writtenconsent
of the States and PacifiCorp.
7.2 Definite Plan and Detailed Plan
7.2.1 Development and Use of Definite Plan
The DRE will develop a Definite Plan for Facilities Removal that, once
completed, may be included as a part of any applications for permits orother
authorizations. The Definite Plan must be consistent with this Settlement.
A. Elements of Definite Plan
The Definite Plan may be based on all elements of the Detailed Plan
described in Section 7.2.2 and will be consistent with FERC requirements
for surrender. Such elements shall be in the form required forphysical
performance, such as engineering specifications for a construction activity,
and shall also include consideration of prudent cost ovemrn management
tools such as performance bonds. The Definite Plan shall also include:
(1) A detailed estimate of the actual or foreseeable costs associated
with: the physical performance of Facilities Removal consistent
with the Detailed Plan; each of the tasks associated withthe
performance of the DRE's obligations as stated in Section 7.1;
seeking and securing permits and other authorizations; and
insurance, performance bond, or similar measures, as set forth in
Appendix L to this Settlement;
(2) The DRE's analysis demonstrating that the total cost of Facilities
Removal is likely to be less than the State Cost Cap, which is the
total of Customer Contribution and California Bond Funding as
specified in Section 4;
(3) Appropriate procedures consistent with state law to provide for
cost-effective expenditures within the cost estimates stated in (l);
(4) Accounting procedures that will result in the earliest practicable
disclosure of any actual or foreseeable ovemrn of cost of anytask
relative to the detailed estimate stated in (1); and
37
Rocky Mountain Power
Exhibit No. 2 Page 44 ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
(5) Appropriate mechanisms to modit/ or suspend perfbnnance of any
task subject to such ovelrun. Upon receipt of Notice from the
DRE of any actual or foreseeable cost oveffun pursuant to (2), the
Parties shall use the Meet and Confer procedures to modify the
task (to the extent permitted by the FERC sunender order, an
applicable permit, or other authorization) or to modifythis
Settlement as appropriate to permit Facilities Removal to proceed.
B. Notice of Completion
The DRE shall provide Notice to the Parties upon completion of the
Definite Plan.
C. Use of Definite Plan
The DRE must incorporate the Definite Plan, once completed, into any
FERC application to surrender the Facilities license. After FERC issues
an order on the FERC Facilities license surrender application, the Parties
will review the consistency of the Definite Plan, FERC's surrenderorder,
and this Settlement. If either of the States or the DRE frnds that theFERC
surrender order is materially inconsistent (as defined in Section 8.1 1.2)
with the Definite Plan or this Settlement, either the DRE or the Statesmay
initiate Meet and Confer proceedings.
7.2.2 Detailed Plan for Facilities Removal
The Secretary developed the Detailed Plan, which may serve as a basis forthe
Definite Plan described in Section7.2.1.A. The Detailed Plan includes Athrough
F below; G is addressed in Appendix L and will be fully developed in theDefinite
Plan; H will be addressed dwing solicitation and selection of engineering and
construction contract(s) for development of a Definite Plan and for Facilities
Removal.
A. The physical methods to be undertaken to effect Facilities Removal,
including but not limited to a timetable for Facilities Removal, which
is removal of all or part of each Facility as necessary to effect a free-
flowing condition and volitional fish passage as defined in Section 1.4;
B. As necessary and appropriate, plans for management, removal, and/or
disposal of sediment, debris, and other materials;
C. A plan for site remediation and restoration;
D. A plan for measures to avoid or minimize adverse downstream
impacts;
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Rocky Mountain Power
Exhibit No. 2 Page 45 of 221
Case No. PAC-E-21-01
Witness: Timothy J. Hemstreet
E. A plan for compliance with all Applicable Laws, includinganticipated
permits and permit conditions;
F. A detailed statement of the estimated costs of Facilities Removal;
G. A statement of measures to reduce risks of cost ovemrnso delays, or
other impediments to Facilities Removal; and
H. The qualifications, management, and oversight of a non-federal DRE.
7.2.3 Assessment and Mitiqation of Potential Impacts to the Citv ofYreka
The Parties understand that actions related to this Settlement may affect the City
of Yreka. In recognition of this potential, the Parties agree to the following
provisions, which shall remain in effect so long as this Settlement remains in
effect.
A. The Parties collectively and each Party individually shall agree notto
oppose the City of Yreka's continued use of California StateWater
Right Permit 15379, which provides for the diversion of up to 15 cfs
for municipal uses by the City ofYreka.
B. As part of implementation of this Settlement, an engineering
assessment to study the potential risks to the City of Yreka's water
supply facilities as a result of implementation of Facilities Removal
shall be funded and conducted by the Secretary. Actions identified in
the engineering assessment necessary to assure continued use of the
existing, or equivalent replacement, water supply facilities by the City
of Yreka shall be funded from the California Bond Measure and
implemented. Actions that may be required as a result of the
engineering assessment and in consultation with the City ofYreka
include, but are not limited to:
(l) Relocation, replacement, and/or burial of the existing 24-inch
diameter water line and transmission facilities from the Cityof
Yreka's Fall Creek diversion;
(2) Assessment, mitigation, and/or funding to address potential
damage to the City of Yreka's facilities located along the Klamath
River, including mitigation of potential impacts that may occur as
a result of a dam breach. Such assessment, mitigation, and/or
funding shall include consideration of the cathodic protection field
located near the north bank of the Iron Gate crossing and the
facilities that house the City's diversion and pump station; and
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Rocky Mountain Power
Exhibit No. 2 Page 46 ot 221
Case No. PAC-E-21-01
VMtness: Timothy J. Hemstreet
(3) Assessment, mitigation, and/or funding to address any impacts
resulting from implementation of the Settlement, on the abilityof
the City to divert water consistent with its Water Right Permit
1s379.
C. As part of implementation of this Settlement, an assessment ofthe
potential need for fish screens on the City of Yreka's Fall Creek
diversion facilities was completed in the Detailed Plan and itidentified
the need for fish screens on Dam A and Dam B. As a result of
implementation of this Settlement, in order to meet regulatory
requirements and screening criteria, construction of the required fish
screens, including, but not limited to, necessary costs to preserve City
facilities with additional species protection, shall be funded through
the California Bond Measure pursuant to Section 4.2.3, orthrough
other appropriate sources.
7.3 Schedule for Facilities Removal
7.3.1 The Parties agree that the target date to begin Facilities Removal is
January 1,2020. The Parties agree that preparatory work forFacilities
Removal may be undertaken by the DRE before January 1,2020,
consistent with the Definite Plan, applicable permits, and Section 6 ofthis
Settlement; provided such preparatory work shall not have any negative
impact on PacifiCorp's generation operations at the Facilities. The Parties
further agree to a target date of December 31,2020 for completion of
Facilities Removal at least to a degree sufficient to enable a free-flowing
Klamath River allowing volitional fish passage.
7.3.2 The Parties acknowledge and agree that the schedule to accomplish
Facilities Removal will be determined by the DRE in accordance with
Section 7 .3.4.The Parties intend to implement this Settlement based on
the following approach to achieve the target dates forDecommissioning
and Facilities Removal set forth in Section 7.3.1:
A. Collect $172 million of the total Customer Contribution by
December 31,2019, consistent with Section 4;
B. Earn approximately $28 million in interest on the KlamathTrust
Accounts to provide Value to Customers, which results in a total of
$200 million in the accounts available for Facilities Removal costs as
illustrated in Appendix H to this Settlement;
C. Implement Decommissioning and Facilities Removal in a mannerthat
permits PacifiCorp to generate sufficient electricity at the Facilities to
achieve the economic results included in PacifiCorp's Economic
Analysis; and
40
Rocky Mountain Power
Exhibit No. 2Page 47 ol 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemsheet
D. Implement the ICP and Non-ICP Interim Measures set forthin
Appendices C and D to this Settlement.
7 .3.3 The Parties agree that PacifiCorp may continuously operate the Facilities
subject to the ICP and Non-ICP lnterim Measures identified in
Appendices C and D to this Settlement and generate electricity at the
Facilities through December 31,2019. Based upon PacifiCorp's
representation of its Economic Analysis, the Parties agree that the
following additional Value to Customers, in addition to the $28 million in
interest described in Section 7.3.2.8, is necessary to achieve the
corresponding date for commencement of Facility Decommissioning:
Date of Facilities
Decommissionine
Required Additional
Value to Customers
January L,2020 $27 million
July 1,2020 $13 million
December 31,2020 $0
If Decommissioning begins on December 31,2020, no additional funding
is required. The Parties acknowledge that, in order to complete Facilities
Removal to the degree described in the last sentence of Section 7.3.lby
December 31,2020, Decommissioning will need to begin prior to that
date. As described in the table above, Decommissioning may begin on
July 1, 2020 if $13 million in additional Value to Customers is identified,
or on January 1,2020,it927 million in additional Value to Customers is
identified.
7.3.4 Within 90 days of the DRE's execution of the Settlement, or at such
additional time as may be necessary, the Parties shall Meet and Conferto:
(1) review progress in implementing the Settlement based upon the
approach described in Section 7.3.2; (2) review the DRE's schedule to
procure contractor(s) to prepare a Definite Plan based on the DetailedPlan
and to provide required liability protection and risk mitigation in
accordance with Appendix L; and (3) identify the Value to Customers
necessary to implement the schedule, the mechanisms as described in
Section 7.3.8 that will be used, and the estimated cost reduction from each
mechanism through December 2019. The Parties will subsequentlyMeet
and Confer if the estimated additional Value to Customers has notbeen
timely secured, a Regulatory Approval is inconsistent with that schedule,
or the Definite Plan or final designs are inconsistent with the schedule.
If the Parties determine that the identified Value to Customers is lessthan
the amount required to achieve the schedule, then the Parties at that time
will consider additional actions to address the funding deficiency,
including but not limited to extending the schedule and securing additional
funding to protect PacifiCorp customers. The Parties may thereafterMeet
4I
Rocky Mountain Power
Exhibit No. 2Page 48 ot 221
Case No. PAC-E-21-01
Vvitness: Timothy J. Hemsheet
and Confer if additional Value to Customers is secured in excess ofwhat
was previously estimated.
7.3.5 PacifiCorp, in its sole and absolute discretion, may determine that
Facilities Removal may begin earlier than January 1,2020.
7 .3.6 If the Parties determine that the schedule for Facilities Removal must
extend beyond December 31,2020, then the Parties shall also consider
whether (1) modification of Interim Measures is necessaryto
appropriately balance costs to customers and protection of natural
resources, and (2) continuation of the collection of the customer
surcharges up to the maximum Customer Contribution is waranted.
7.3.7 The Parties agree that if Decommissioning and Facilities Removaloccurs
in a staged manner, J.C. Boyle is intended to be the last Facility
decommissioned. If, however, the Definite Plan or FERC's surrender
order directs a different sequence for Decommissioning and Facilities
Removal, then the Parties shall Meet and Confer to identiffadjustrnents
necessary to implement Facilities Removal in a manner that is consistent
with PacifiCorp's Economic Analysis.
7.3.8 The Parties have identified the following potential mechanisms for
creating Value to Customers:
A. Interest on the Klamath Trust Accounts
The Parties acknowledge above that the surcharges from the Customer
Contributions will be placed in interest-bearing accounts and that the
interest that accrues in the accounts may be used to reduce the amount
collected through the surcharges so that the total Customer Contribution,
including accrued interest through December 31, 2019, totals
$200,000,000. The Parties further acknowledge that it is not possible to
precisely estimate the amount of interest that will accrue in the Klamath
Trust Accounts. To the extent the interest in the accounts exceeds
$28,000,000, the additional earnings may be used as a Value to Customers
unless the funds are required for Facilities Removal. Nothing in this
paragraph will limit the Customer Contribution to less than$200,000,000.
B. Third-Partv Fundinq
The Parties agree to work jointly to identify potential partnerships to
supplement funds generated pursuant to this Settlement. Suchthird-party
funds may be employed to acquire generation facilities that can be usedto
replace the output of the Facilities, to fund aspects of Facilities Removal,
or for other purposes to achieve the benefits of this Settlement.
42
Rocky Mountain Power
Exhibit No. 2Page 49 of 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
C. Other
The Parties acknowledge that other mechanisms for Value to Customers
may be identified, provided that they create sufficientlyquantifiable
benefits for customers.
7 .3.9 PacifiCorp's Economic Analysis that will be used to implement this
section was filed by PacifiCorp with the Oregon PUC pursuant to Section
4(1) of the Oregon Surcharge Act and with the California PUC in
accordance with Section 4 of this Settlement. The Parties may seekto
intervene in these state proceedings before the Commissions, and may
request to view PacifiCorp's Economic Analysis consistent with the
limitations imposed by Section 4(6) of the Oregon Surcharge Act,
applicable PUC protective orders, and general PUC discoverypractices
and legal requirements. PacifiCorp shall not oppose either request.
PacifiCorp reserves the right to request that the PUCs restrict Parties'
access to commercially sensitive material, other than PacifiCorp's
Economic Analysis, consistent with Section a(6) of the Oregon Surcharge
Act, applicable PUC protective orders, and general PUC discovery
practices and legal requirements.
7.4 Transfer. Decommissionins. and Facilities Removal
7.4.I DRE Notice
The DRE will notify the Parties and FERC when the necessary permits and
approvals have been obtained for removal of a Facility or Facilities, all contracts
necessary for removal have been frnalized, and Facility Removal is readyto
commence.
7.4.2 Decommissioning and Transfer
PacifiCorp will transfer ownership of each Facility, including the underlyingland
for each Facility in accordance with Section 7.6.4 (except for the Keno
Development, which shall be disposed in accordance with Section 7.5). Oncethe
DRE fulfills all of the conditions and obligations in Section 7.1.4, Appendix L,
and the FERC license transfer order, and PacifiCorp concurs, PacifiCorp will
transfer ownership of the Facilities to the DRE. PacifiCorp will continueto
operate and maintain the Facilities in accordance with Section 7.1.6 until theDRE
is ready to begin removal of a Facility and requests that PacifiCorp discontinue
operation of that Facility.
43
Rocky Mountain Power
Exhibit No. 2 Page 50 oI 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
7.5 Keno Facilitv
7.5.1 Study
Resolution of issues surrounding Keno facility arc an important part ofachieving
the overall goals of this Settlement. Accordingly, the Secretary, inconsultation
with affected Parties, shall study issues specific to the Keno facility, withspecific
focus on addressing water quality, fish passage, transfer of title to the Keno
facility from PacifiCorp to Interior, future operations and maintenance, and
landowner agreements. The study of the Keno facility will be designed withthe
goals of addressing these issues and maintaining the benefits the dam currently
provides.
7.5.2 Keno Facilitv Determination
In20l2, the Bureau of Reclamation and PacifiCorp entered into an agteement in
principle for transfer of title to the Keno facility from PacifiCorp to Interior.
Within 60 days of the Amendment Effective Date, Interior and PacifiCorp shall
commence negotiations on Keno transfer informed by the analyses described in
Section 7.5.1. Every six months or as necessary after the AmendmentEffective
Date, and subject to Section 8.17, Interior and PacifiCorp shall report to the
Parties on the status of Keno negotiations, including as appropriate, drafts of a
proposed Keno transfer agreement, a suulmary of negotiations and issues in
dispute, and supporting documents. Interior and PacifiCorp shall use theirbest
efforts to complete a final Keno ffansfer agreement within 180 days ofthe
Amendment Effective Date. The Secretary will accept transfer of title to the
Keno facility when the DRE notifies the Parties and FERC pursuant to Section
7 .4.1 that J.C. Boyle Facility Removal is ready to commence.
The transfer of title to the Keno facility shall be subject to completion ofany
necessary improvements to the Keno facility to meet Department of the Interior
Directives and Standards criteria for dam safety identified by Interior through its
Safety of Dams inspection of the Keno facility. To facilitate this inspection,
PacifiCorp agrees to grant access to the federal government and its contractors for
study and assessment of the Keno facility. The terms and conditions ofthe
transfer of title to the Keno facility, including coordination of operationsbetween
Link River dam, Keno dam, and any remaining facilities operated byPacifiCorp,
ingress and egress agreements and easements required for operation and
maintenance of the Klamath Reclamation Project, including but notnecessarily
limited to Lake Ewauna, Link River Dam, and Keno Dam will benegotiated
between Interior and PacifiCorp prior to transfer. Costs associated with any
improvements necessary to meet Department of Interior's Directives and
Standards criteria for dam safety shall be funded by other non-PacifiCorp sources.
44
Rocky Mountain Power
Exhibit No. 2 Page 51 ol 221
Case No. PAC-E-2l-01
Witness: Timothy J. Hemstreet
7.5.3 PacifiCorp Operations Prior to Transfer
Prior to and until transfer of title to the Keno Facility, PacifiCorp shall operate
Keno in compliance with Contract#I4-06-200-3579A, subject to anyApplicable
Law including the CWA and the provisions of Section 6.3 ofthis Settlement.
7.5.4 Operations After Transfer
Following transfer of title to the Keno facility from PacifiCorp to Interior,lnterior
shall operate Keno in compliance with Applicable Law and to provide water
levels upstream of Keno Dam for diversion and canal maintenance consistentwith
Contract #14-06-200-3579A executed on January 4,1968, between Reclamation
and PacifiCorp (then COPCO) and historic practice.
7.5.5 LandownerAereements
Based on the analysis under Section 7.5.1, the Secretary, upon acquisition of the
Keno facility, will execute new agreements with landowners who currentlyhave
agreements in the Lake Ewauna to Keno reach, as the Secretary determines are
necessary to avoid adverse impacts to the landowners resulting from the transfer,
consistent with Applicable Law, operational requirements, and hydrologic
conditions.
7.6 Dispositions of PacifiCom lrterests in Lands and other Rights
7.6.t Lands Owned bv PacifiCom
PacifiCorp is the fee owner of approximately 11,000 acres of real propertylocated
in Klamath County, Oregon and Siskiyou County, Califomia that are not directly
associated with the Klamath Hydroelectric Project, and generally not included
within the existing FERC project boundary. This property is more particularly
described on Page 3 of the PacifiCorp Land Maps, attached as Exhibit 3, and
referenced as Parcel A, This Settlement shall have no effect as to dispositionof
Parcel A lands, which shall continue to be subject to applicable taxes unless and
until disposed of by PacifiCorp subject to applicable PUC approval requirements.
PacifiCorp is the fee owner of approximately 8,000 acres of real propertylocated
in Klamath County, Oregon and Siskiyou County, California that is associated
with the Klamath Hydroelectric Project and/or included within the FERCproject
boundary. This property is more particularly described on Page 3 ofthe
PacifiCorp Land Maps, Exhibit 3, and referenced as Parcel B. It is the intent of
the Parties that Parcel B property be disposed in accordance with Section 7.6.4,
except for the Keno Development which shall be disposed in accordance with
Section 7.5. In addition to Exhibit 3, PacifiCorp owns significant electric
transmission and distribution facilities which will remain under its ownership and
subject to applicable taxes.
45
Rocky Mountain Power
Exhibit No. 2 Page 52 o1221
Case No. PAC-E-21-01
Vvitness: Timothy J. Hemstreet
7.6.2 Potential Non-Project Land Exchanees
Interior and PacifiCorp have identified in Parcel A the potential for the exchange
of certain non-Project PacifiCorp-owned lands in the Klamath Basin. Should an
exchange of these lands to a state or Federal entity take place, the terms of the
exchange agreement shall be revenue-neutral to County governments.
7.6.3 BLM Easements and Rishts of Way
The Parties agree that before Facilities Removal, the FERC license forthe
Facilities shall control the ingress and egress to the Facilities within the FERC
project boundary. Access by PacifiCorp outside of the project boundary to BLM-
administered lands may require a separate Right Of Wayagreement.
The Parties agree that the DRE's obligations for operation, maintenance,
remediation and restoration costs of BlM-administered, transportation-related
structures affected by Facilities Removal will be addressed as part of theDefinite
Plan.
A proposed disposition of PacifiCorp's easements and right-of-ways across BLM-
administered lands within the FERC Project boundary will be included as a part
of the DRE's Definite Plan for Facility Removal. To the extentnecessary,
reciprocal Right Of Way agreements may be executed across PacifiCorp-owned
lands and BlM-administered lands to provide continued access for public and
BLM administration needs. During the implementation of the Definite Plan, the
DRE will be required to obtain authorization for any access across PacifiCorp and
BlM-administered lands necessary for every phase of action.
7.6.4 PacifiCorp Klamath Hydroelectric Project Lands
A. It is the intent of the Parties that ownership of PacifiCorp lands
associated with the Klamath Hydroelectric Project and/or included
within the FERC Project boundary, identified as Parcel B in Exhibit 3,
shall be transferred to the DRE before Facilities Removal begins. It is
the intent of the Parties that, once the DRE has completed Facilities
Removal and all surrender conditions have been satisfied, ownership
of these lands will be transferred to the respective States, as applicable,
or to a designated third-party transferee, upon Notice by the relevant
State that it has completed to its satisfaction a final property (land and
facilities) inspection in accordance with Applicable Law and in
accordance with the indemnification(s) provided in Section 7.1.3 and
Appendix L. It is also the intent of the Parties that transferred lands
shall thereafter be managed for public interest purposes such as fish
and wildlife habitat restoration and enhancement, public education,
and public recreational access.
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Rocky Mountain Power
Exhibit No. 2 Page 53 ol 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
B. Each State shall undertake inspection and preliminary due diligence
regarding the nature and condition of Parcel B lands located within its
state boundaries, in anticipation of transfer of those lands from the
DRE to the relevant State. PacifiCorp and the DRE shall provide each
State all cooperation and access to the lands and pertinent records
necessary to the inspection and due diligence. The DRE, each State,
and PacifiCorp shall identify and provide to the Parties, for each
specific property in Parcel B: (1) the proposed transferee for the
property; and (2) the proposed terms of transfer for the property. The
States, the DRE, and PacifiCorp shall consult with the Parties and
other stakeholders before identifying the proposed transfer ofa
specific Parcel B property. Following such evaluation, the State of
Oregon and the State of California may, each in its sole and absolute
discretion, elect not to accept the transfer ofall or anyportionof
Parcel B lands; provided, if a State, the DRE, or PacifiCorp believes
that the proposed transfer for a property (or lack thereof) will not
achieve the intent set forth in Section 7 .6.4.A, those Parties shall Meet
and Confer in accordance with Section 8.7.
C. Without predetermining the final terms of transfer for a specific
property, proposed terms of transfer may include but are not limited to
(1) final property inspection; (2) specification of structures and
improvements to remain on the property after Decommissioning and
Facilities Removal; (3) liability protection for the State, ordesignated
third party transferee, and the DRE, for any harm arising frompost-
transfer Decommissioning or power operations at the property;
(a) hability protection for the State, or designated third party
transferee, for any harm arising from post-transfer Facilities Removal
by the DRE at the property; (5) easements or other propertyinterests
necessary for access to and continued operation ofPacifiCorp
transmission and distribution system assets that will remain on the
property; and (6) notice or acknowledgement of the State's claim of
ownership to beds and banks of the Klamath River. The DRE shallbe
aparty to the transfer document as necessary and appropriate. The
consideration required for transfer of a property to a State or third
party transferee under this section shall be limited to the liability
protections and other benefits conferred upon PacifiCorp and the DRE
under this Settlement. Transfer of Parcel B lands shall be subject to
applicable regulatory approvals and the reservations set forth in
Section 1.6.
D. PacifiCorp shall convey Parcel B lands to the DRE, after the DRE
provides Notice to the Parties and FERC that all necessary permits and
approvals have been obtained for Facility Removal, and all contracts
necessary for Facility Removal have been finalized. PacifiCorp shall
convey all right, title, and interest in a subset of the Parcel B lands
47
Rocky Mountain Power
Exhibit No. 2 Page 54 ol 221
Case No. PAC-E-21-01
Vvitness: Timothy J. Hemstreet
designated on Exhibit 3 as lands associated with each Facility to the
State or third party transferee subject to the DRE's possessory interest,
consistent with the terms of this Settlement, including the Facilities,
underlying lands, and appurtenances as further described through
surveys and land descriptions. The DRE shall hold the underlying
land for each Facility in trust for the benefit of the State or third party
transferee. This public trust possessory interest in the DRE shall be
controlled by the terms of the Settlement, the Definite Plan, andthe
transfer document. At the conclusion of Facilities Removal, the DRE
will release the underlying land to the State or third partytransferee.
Upon transfer of ownership of all Facilities, PacifiCorp shall conveyto
the State or third party transferee all right, title, and interest inall
Parcel B lands not already transferred to the DRE in trust, as fuither
described through surveys and land descriptions, without restriction of
possessory interest for the DRE. If transfer of a specific propertyfor
any reason is not consummated in a manner achieving the intent set
forth in Section 7.6.4.A, PacifiCorp, the applicable State, and the DRE
shall Meet and Confer in accordance with Section 8.7.
E. Notwithstanding any provision hereof, in the event either State accepts
title to any portion of Parcel B lands, the State of Oregon and the State
of California retain the right to transfer their ownership to anythird
party for any purpose.
7.6.5 PacifiCorp Water Riehts
A. PacifiCorp shall assign its revised hydroelectric water rights to the
OWRD for conversion to an instream water right pursuant to ORS
543A.305, and OWRD shall take actions to effect such conversion, in
accordance with the process and conditions set forth in Water Right
Agreement between PacifiCorp and Oregon (Exhibit l). Nothing in
this Section 7.6.5 or Exhibit 1 is intended in any way to affect,
diminish, impair, or determine any federally-reserved or state law-
based water right that the United States or any other person or entity
may have in the Klamath River.
B. Except as provided in this paragraph, within 90 days of completion of
Facilities Removal at the Copco No. 1, Copco No. 2 and Iron Gate
Facilities, respectively, PacifiCorp shall submit a Revocation Request
to the California State Water Resources Control Board for LicenseNo.
9457 (Application No. 17527), and shall notify the State Water
Resources Control Board of its intent to abandon its hydroelectric
appropriative water rights at the Copco No. 1 and Copco No. 2
Facilities, as applicable, as identified in Statement of WaterDiversion
and Use Nos. 15374, 15375, and 15376. Should ongoing operations of
the Iron Gate Hatchery or other hatchery facilities necessitate
48
Rocky Mountain Power
Exhibit No. 2 Page 55 ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
continued use of water under License No. 9457 (Application No.
17527) beyond 90 days after completion of Facilities Removal,
PacifiCorp shall consult with the Department of Fish and Wildlife and
the State Water Resources Control Board and shall take actions
directed by such Department and Board as are necessary to ensure a
sufficient water supply to the Iron Gate Hatchery or otherhatchery
facilities under License No. 9457.
7.6.6 PacifiCom Hatchery Facilities
The PacifiCorp Hatchery Facilities within the State of California shall be
transferred to the State of California at the time of tansfer to the DRE of thekon
Gate Hydro Development or such other time agreed by the Parties, andthereafter
operated by the California Department of Fish and Wildlife with funding from
PacifiCorp as follows:
A. Hatchery Fundins
PacifiCorp will fund 100 percent of hatchery operations andmaintenance
necessary to fulfill annual mitigation objectives developed bythe
Califomia Deparhnent of Fish and Wildlife in consultation withthe
National Marine Fisheries Service. This includes funding the IronGate
Hatchery facility as well as funding of other hatcheries necessary tomeet
ongoing mitigation obj ectives following Facilities Removal. Hatchery
operations include development and implementation of a Hatchery
Genetics Management Plan as well as a25o/o constant fractional marking
program. Funding will be provided for hatchery operations to meet
mitigation requirements and will continue for eight years followingthe
Decommissioning of lron Gate Dam. PacifiCorp's eight-year funding
obligation assumes that dam removal will occur within one year of
cessation of power generation at hon Gate Dam. If Facilities Removal
occurs after one year of cessation of power generation at hon Gate Dam,
then the Parties will Meet and Confer to determine appropriate hatchery
funding beyond the eight years.
B. Hatchery Production Continuity
PacifiCorp will fund a study to evaluate hatchery production options that
do not rely on the current hon Gate Hatchery water supply. The study
will assess groundwater and surface water supply options and waterreuse
technologies that could support hatchery production in the absence of Iron
Gate Dam. The study may include examination of local well records and
increasing production potential at existing or new facilities in theKlamath
Basin as well as development of a test well or groundwater supplywell.
Based on the study results and with the approval of the California
Department of Fish and Wildlife and the National Marine Fisheries
49
Rocky Mountain Power
Exhibit No. 2 Page 56 of 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
Service, PacifiCorp will provide one-time funding to construct and
implement the measures identified as necessary to continue to meet
current mitigation production objectives for a period of eight years
following the Decommissioning of Iron Gate Dam. PacifiCorp's eight-
year funding obligation assumes that Facilities Removal will occurwithin
one year of cessation of power generation at hon Gate Dam. If dam
removal occurs after one year of cessation of power generation at Iron
Gate Dam, then the Parties will Meet and Confer to determine appropriate
hatchery funding beyond the eight years. Production facilities capable of
meeting current hatchery mitigation goals must be in place andoperational
upon removal of kon Gate Dam. PacifiCorp shall not be responsible for
funding hatchery programs, if any, necessary to reintroduce anadromous
fish in the Klamathbasin.
8. General Provisions
8.1 Term of Settlement
The term of this Settlement shall commence on the Effective Date and shall continue
until Facilities Removal has been fully achieved and all conditions of this Sefflement
have been satisfied, unless terminated earlier pursuant to Section 8.1 1.
8.2 Effectiveness
The KHSA was effective upon execution on February 18, 2010 ("Effective Date"). The
KHSA as amended will take effect when it is executed by the signatories to the 20l6AIP
("Amendment Effective Date").
8.3 Successors and Assisns
This Settlement shall apply to, be binding on, and inure to the benefit of the Parties and
their successors and assigns, unless otherwise specified in this Settlement. Except as
provided by Section 7.1.10, no assignment may take effect without the expresswritten
approval of the other Parties, which approval will not be unreasonablywithheld.
8.4 Amendment
Except as otherwise expressly provided in Section 8.1 1.3, this Settlement may onlybe
amended in writing by all Parties still in existence, including any successors orassigns.
The Public Agency Parties may also obtain public input on any such modifications as
required by Applicable Law. A Party may provide Notice of a proposed amendment at
any time. The Parties agree to meet in person or by teleconference within 20 days of
receipt of Notice to discuss the proposed amendment.
50
Rocky Mountain Power
Exhibit No. 2Page 57 of 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
8.5 Notices
Any Notice requfued by this Sefflement shall be written. Notice shall be providedby
electronic mail, unless the sending Party determines that first-class mail or analternative
form of delivery is more appropriate in a given circumstance. A Notice shall be effective
upon receipt, but if provided by U.S. Mail, seven days after the date on which it is
mailed. For the purpose of Notice, the list of authorized representatives of the Parties as
of the Effective Date is affached as Appendix K. The Parties shall provide Notice ofany
change in the authorized representatives designated in Appendix K, and PacifiCorp shall
maintain the current distribution list of such representatives. The Parties agree that
failure to provide PacifiCorp with current contact information will result in a waiverof
that Party's right to Notice under this Settlement. The Party who has waived Noticemay
prospectively reinstate its right to Notice by providing current contact informationto
PacifiCorp.
8.6 Dispute Resolution
All disputes between Parties arising under this Settlement shall be subject to theDispute
Resolution Procedures stated herein. The Parties agree that each such dispute shall be
brought and resolved in a Timelymanner.
8.6.1 Cooperation
Disputing Parties shall devote such resources as are needed and as can be
reasonably provided to resolve the dispute expeditiously. Disputing Parties shall
cooperate in good faith to promptly schedule, attend, and participate in the dispute
resolution.
8.6.2 Costs
Unless otherwise agreed among the Disputing Parties, each Disputing Partyshall
bear its own costs for its participation in these Dispute Resolution Procedures.
8.6.3 Non-Exclusive Remedy
These Dispute Resolution Procedures do not preclude any Party fromTimely
filing and pursuing an action to enforce an obligation under this Settlement, orto
appeal a Regulatory Approval inconsistent with the Settlement, or to enforce a
Regulatory Approval or Applicable Law; provided that such Party shall provide a
Dispute Initiation Notice and, to the extent practicable, undertake and conclude
these procedures, before such action.
5l
Rocky Mountain Power
Exhibit No. 2Page 58 o1221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
8.6.4 Dispute Resolution Procedures
A. Dispute lritiation Notice
A Party claiming a dispute shall give Notice of the dispute withrn seven
days of becoming aware of the dispute. Such Notice shall describe: (1) the
matter(s) in dispute; (2) the identity of any other Party alleged to havenot
performed an obligation arising under this Settlement or Regulatory
Obligation; and (3) the specific relief sought. Collectively, the Party
initiating the procedure, the Party complained against, and any otherParty
which provides Notice of its intent to participate in these procedures, are
"Disputing Parties."
B. Informal Meetines
Disputing Parties shall hold at least two informal meetings to resolve the
dispute, commencing within 20 days after the Dispute InitiationNotice,
and concluding within 45 days of the Dispute Initiation Notice unless
extended upon mutual agreement of the Disputing Parties. If the
Disputing Parties are unable to resolve the dispute, at least one meeting
will be held within the 45 days at the management level to seek resolution.
C. Mediation
If the dispute is not resolved in the informal meetings, the Disputing
Parties shall decide whether to use a neutal mediator. The decision
whether to pursue mediation, and if affirmative the identity and allocation
of costs for the mediator, shall be made within 75 days after the Dispute
Initiation Notice. Mediation shall not occur if the Disputing Parties donot
unanimously agree on use of a mediator, choice of mediator, and
allocation of costs. The mediation process shall be concluded not later
than 135 days after the Dispute lnitiation Notice. The above timeperiods
may be shortened or lengthened upon mutual agreement of the Disputing
Parties.
D. Dispute ResolutionNotice
The Disputing Parties shall provide Notice of the results of the Dispute
Resolution Procedures. The Notice shall: (1) restate the disputed matter,
as initially described in the Dispute Initiation Notice; (2) describe the
alternatives which the Disputing Parties considered for resolution; and (3)
state whether resolution was achieved, in whole or part, and state the
specific relief, including timeline, agreed to as part of the resolution. Each
Disputing Party shall promptly implement any agreed resolution ofthe
dispute.
52
Rocky Mountain Power
Exhibit No. 2 Page 59 oI 221
Case No. PAC-E-21-01
Witness: Timothy J. Hemstreet
8.7 Meet and Confer
8.7.1 Applicability
The Meet and Confer procedures in this Section 8.7 shall apply upon the
occrurence of certain events or failure to occur of certain events as specifically
required in this Sefflement.
8.7.2 Meet and Confer Procedures
A. Any Party may initiate the Meet and Confer procedures by sending
Notice: (l) describing the event that requires the Parties to confer, and
(2) scheduling a meeting or conference call.
B. The Parties will meet to discuss the problem and identiff alternative
solutions. The Parties agree to dedicate a reasonable amount oftime
sufficient to resolve the problem.
C. The Meet and Confer procedures will result in: (l) amendment
pursuant to Section 8.a; Q) termination or other resolution pursuant to
the procedures ofSection 8.1 l; or (3) such other resolution as is
appropriate under the applicable section.
8.8 Remedies
This Settlement does not create a cause of action in contract for monetary damages tbr
any alleged breach by any Party of this Settlement. Neither does this Settlement createa
cause of action in contract for monetary damages or other remedies for failure to perform
a Regulatory Obligation. The Parties reserve all other existing remedies formaterial
breach of the Settlement; provided that Section 8.11 shall constitute the exclusive
procedures and means by which this Settlement can beterminated.
8.9 Entire Asreement
This Settlement contains the complete and exclusive agreement among all of theParties
with respect to the subject matter thereof and supersedes all discussions, negotiations,
representations, wa:ranties, commitments, offers, agreements in principle, and other
writings among the Parties, including the 2008 AIP and 2016 AIP, before the
Amendment Effective Date of this Settlement, with respect to its subjectmatter.
Appendices B, C, D, F, H, K, and L are hereby incorporated by reference into this
Settlement as if fully restated herein. Exhibits 1 through 4 are attached to this Settlement
for informational purposes only and are not incorporated by reference except as otherwise
noted herein.
53
Rocky Mountain Power
Exhibit No. 2 Page 60 ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
8.10 Severability
This Settlement is made on the understanding that each provision is a necessary part of
the entire Settlement. However, if any provision of this Settlement is held by a
Regulatory Agency or a court of competent jurisdiction to be invalid, illegal, or
unenforceable: (1) the validity, legality, and enforceability of the remaining provisionsof
this Settlement are not affected or impaired in any way; and (2) the Parties shallnegotiate
in good faith in an attempt to agree to another provision (instead of the provision held to
be invalid, illegal, or unenforceable) that is valid, legal, and enforceable and carries out
the Parties' intention to the greatest lawful extent under this Settlement.
8.11 Termination
8.1 1.1 Potential Termination Events
This Settlement shall be terminable if one of the following events occurs and a
cure for that event is not achieved pursuant to Section 8.11.3:
A. A condition precedent to license transfer set forth in Section 7.l.4is
not met;
B. The Oregon PUC or California PUC do not implement the funding
provisions set forth in Sections 4.1 through 4.6;
C. Conditions of any Regulatory Approval of lnterim Measures, denial of
Regulatory Approval of lnterim Measures including the failureTimely
to approve ESA incidental take authorization, or results of any
litigation related to this Settlement are materially inconsistent withthe
provisions of Section 6.1 through 6.3 and Appendices C and D;
D. Conditions or denial of any Regulatory Approval ofFacilities
Removal or the results of any litigation about such removal, are
materially inconsistent with the Settlement;
E. The DRE notifies the Parties that it cannot proceed withFacilities
Removal because it cannot obtain all permits and contracts necessary
for Facilities Removal despite its good faith efforts; or
F. California, Oregon, the Federal Parties, or PacifiCorp is materially
adversely affected by another Party's breach of this Settlement.
8.11.2 Definitions for Section 8.11
For purposes of this section and Section 7.2.I.C, "materially
inconsistent" means diverging from the Settlement or part thereof
in a manner that (1) fundamentally changes the economics or
A.
54
Rocky Mountain Power
Exhibit No. 2 Page 61 of 221
Case No. PAC-E-2l-01
Vvitness: Timothy J. Hemstreet
liability protection such that aParty no longer receives the benefit
of the bargain provided by this Settlement; or (2) frustrates the
fundamental purpose of this Settlement such that Facilities
Removal or the underlyrng purposes of Interim Measures cannot
be accomplished. Events occurring independent of this Settlement,
other than those identified in Section 8. I I . 1, shall not be construed
to create a material inconsistency or materially adverse effect.
B.For purposes of this section, "materially adversely affected" means
that a Party no longer receives the benefit of the bargain due to:
(1) fundamental changes in the economics or liabilityprotection;
or (2) frustration of the fundamental purpose of this Settlement
such that Facilities Removal or the underlying purposes of Interim
Measures cannot be accomplished.
C.For purposes of this section, a "result of any litigation" is
materially inconsistent with this Settlement or a part thereof ifa
Party is materially adversely affected by: (1) costs to defendthe
litigation; or (2) a final order or judgment.
8.11.3 Cure for Potential Termination Event
A. A Party that believes that a potential termination event specifiedin
Section 8.1 1.1 has occurred shall provide Notice.
(1) The Parties shall use the Meet and Confer Procedures specified in
Section 8.7 to consider whether to deem the event to conform to
the Settlement, or adopt a mutually agreeable amendment to this
Settlement. These procedures shall conclude within 90 days of
Notice.
(2) If these procedures do not resolve the potential termination event,
the Federal Parties, the States, the DRE if a Party, andPacifiCorp
may, within 90 days thereafter, agree to an amendment, ordeem
the event to conform to the Settlement; otherwise, this Sefflement
shall terminate. ln no event shall any amendment under this
subsection provide for Facilities Removal with respect to fewer
than four Facilities.
B. If the Federal Parties, the States, the DRE if a Party, andPacifiCorp
disagree whether a potential termination event specified in Section
8.11.1 has occurred, these Parties shall follow the Dispute Resolution
Procedures in Section 8.6 to attempt to resolve that dispute. If sucha
Notice of Dispute is filed while the Meet and Confer Procedures
referenced in 8.11.3.A are ongoing, those Meet and ConferProcedures
are deemed concluded, subject to being recofirmenced in accordance
55
Rocky Mountain Power
Exhibit No. 2 Page 62 oI 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
with the remainder of this subsection. Upon conclusion of the Dispute
Resolution Procedures in Section 8.6, the Federal Parties, the States,
the DRE if a Party, and PacifiCorp shall issue a Notice of Dispute
Resolution.
(1) E in the Notice of Dispute Resolution, the Federal Parties, the
States, and PacifiCorp agree that a potential termination event has
occurred, or agree to consider whether a cure could be achieved,
the further procedures stated in Section 8.11.3.A(1) and (2) above
shall apply.
(2) lf, in the Notice of Dispute Resolution, the Federal Parties, the
States, the DRE if aParty, and PacifiCorp disagree whether a
potential termination event has occurred, this Settlement shall
terminate unless a Party seeks and obtains a remedy preserving the
Settlement under Applicable Law.
C. A Party may reasonably suspend performance of its otherwise
applicable obligations under this Settlement, upon receipt ofNotice
and pending a resolution of the potential termination event asprovided
in Section 8.11.3.A or B.
D. If the Federal Parties, the States, the DRE if a Party, andPacifiCorp,
pursuant to the procedures in Section 8.11.3.A, agree to an amendment
or other cure to resolve a potential termination event absent agreement
by all other Parties pursuant to Section 8.4, any other Party mayaccept
the amendment byNotice. If it objects, such other Party: (1) mayseek
a remedy regarding the potential termination event that resulted inthe
disputed amendment, to the extent provided by Section 8.8; (2) may
continue to suspend performance of its obligations under this
Settlement; and (3) in either event shall not be liable in any manneras
a result of its objection or the suspension of its performance of its
obligations under this Settlement.
E. The Parties shall undertake to complete the applicable procedures
under this section within six months of a potential termination event.
8.1 1.4 Oblieations Survivine Termination
A. Upon termination, all documents and communications related to the
development, execution, or submittal of this Settlement to anyagency,
court, or other entity, shall not be used as evidence, admission, or
argument in any forum or proceeding for any purpose to the fullest
extent allowed by Applicable Law, including 18 C.F.R' $ 385.606.
This provision does not apply to the results of studies or other
technical information developed for use by a Public AgencyParty.
56
Rocky Mountain Power
Exhibit No. 2 Page 63 ol 22'l
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
This provision does not apply to any information that was in the public
domain prior to the development of this Settlement or that became part
of the public domain at some later time through no unauthoized actor
omission by any Party. Notwithstanding the termination ofthis
Settlement, all Parties shall continue to maintain the confidentialityof
all settlement communications.
This provision does not prohibit the disclosure of: (l) anyinformation
held by a federal agency that is not protected from disclosurepursuant
to the Freedom of Information Act or other applicable law; (2) any
information held by a state or local agency that is not protected from
disclosure pursuant to the California Public Records Act, the Oregon
Public Records Law, or other applicable state or federal law; or
(3) disclosure pursuant to Section 1.6.8.
B. The prohibitions in Section 1.6.8 survive termination ofthis
Settlement.
8.12 No Third-Partv Beneficiaries
This Settlement is not intended to and shall not confer any right or interest in thepublic,
or any member thereof or on any persons or entities that are not Parties hereto, as
intended or expected third-party beneficiaries hereof, and shall not authorize anynon-
Party to maintain a suit at law or equity based on a cause of action deriving fromthis
Settlement. The duties, obligations, and responsibilities of the Parties with respectto
third parties shall remain as imposed under Applicable Law.
8.13 Elected Officials Not to Benefit
No Member of or Delegate to Congress, Resident Commissioner, or elected official shall
personally benefit from this Settlement or from any benefit that may arise from it.
8.14 No Partnership
Except as otherwise expressly set forth herein, nothing contained in this Settlernent is
intended or shall be construed to create an association, tust, partnership, or jointventure,
or impose any trust or partnership duty, obligation, or liability on any Party, or create an
agency relationship between or among the Parties or between any Party and any
employee of any other Party.
57
Rocky Mountain Power
Exhibit No. 2 Page 64 of 221
Case No. PAC-E-21-01
Vvitness: Timothy J. Hemstreet
8.15 Govemins Law
8.15.1 Contractual Oblieation
A Party's performance of an obligation arising under this Settlement shall be
governed bV (l) applicable provisions of this Settlement, and (2) Applicable Law
for obligations of that type.
8. I 5.2 Rezulatory Oblieation
A Party's performance of a Regulatory Obligation, once approved as proposedby
this Settlement, shall be govemed by Applicable Law for obligations of thattype.
8.15.3 Reference to Applicable Law
Any reference in this Settlement to an Applicable Law shall be deemed to be a
reference to such law in existence as of the date of the action inquestion.
8.16 Federal Appropriations
To the extent that the expenditure or advance of any money or the performance ofany
obligation of the Federal Parties under this Settlement is to be funded byappropriations
of funds by Congress, the expenditure, advance, or performance shall be contingent upon
the appropriation of funds by Congress that are available for this purpose and the
apportionment of such funds by the Offrce of Management and Budget. No breach of
this Settlement shall result and no liability shall accrue to the United States in the event
such funds are not appropriated or apportioned.
8.17 Confidentialitv
The confidentiality provisions of the Agreementfor Confidentiality of Settlement
Communications and Negotiations Protocol Related to the Klamath Hydroelectric
Project, as it may be amended, shall continue as long as this Settlement is ineffect.
9. Execution of Settlement
9.1 SignatoryAuthority
Each signatory to this Settlement certifies that he or she is authorized to execute this
Settlement and to legally bind the entity he or she represents, and that such entity shallbe
fully bound by the terms hereof upon such signature without any further act, approval, or
authorization by such entity.
58
Rocky Mountain Power
Exhibit No. 2 Page 65 ot 221
Case No. PAC-E-21-01
\Mtness: Timothy J. Hemstreet
9.2 Sienine in Countemarts
This Settlement may be executed in any number of counterparts, and eachexecuted
counterpart shall have the same force and effect as if all signatory Parties had signedthe
same instrument. The signature pages of counterparts of this Settlement maybe
compiled without impairing the legal effect of any signaturesthereon.
9.3 New Parties
Except as provided in Section 9.4 any entity listed on pages 1 through 2 of this
Settlement that signs this Settlement on or before December 31,2016, will become a
Party to this Settlement. After December 31,2016, any entity listed on pages I through 2
of this Settlement may become a Party through an amendment of this Settlement in
accordance with Section 8.4. After 90 days from the Amendment Effective Date, an
entity not listed on pages I through 2 of this Settlement may become a Party through an
amendment of this Settlement in accordance with Section 8.4.
9.4 DRE and Liabilitv Transfer Corp. as Parties
The Parties expect that the DRE will become aParty by executing this Settlementwithin
90 days of the Amendment Effective Date. No action by any other Party is necessaryfor
the DRE to become a Party. If the DRE assigns any of its responsibilities to aLiability
Transfer Corp. as described in Section 7.1.10 and Appendix L, the Liability Transfer
Corp. shall become a Party by executing this Settlement. No action by any other Partyis
necessary for the Liability Transfer Corp. to become aParty.
[REMAINDER OF PAGE INTENTIONALLY BLANK-SIGNATURES BEGIN ON
FOLLOWTNG PAGEI
59
Rocky Mountain Power
Exhibit No. 2Page66 ot221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
IN WITNESS THEREOF,
the Parties, through their duly authorized representatives, have caused this Settlement to be
executed as of the date set lbrth in this Settlernent.
United States Department of the Interior
Date L 'LL)
By: Sally
United States
l,of the Interior
t of Commerce's National Marine Fisheries Sen'ice
a Date:,l't7T lb
Dr.D. Sullivan
Under Secretary of Commerce lirr
Oceans and Atmosphere
PacifiCorp d/b/a Pacific Power
,"L Date:
By: Stelan A. B and CEO
State of California
WL L
/zal4Date:
By: Edmund G Jr.,
State of Oregon
,1
t^.,/' ti lL r*"Ltr Date:I v.
By Brown, Governor
California Department of Fish and Wildlifc
fftt 4 I
Ir /). v1
By: Chuck Bonham. Director
Amended Klamath Hydroelectric Settlement Agreement
Signature Pages
Date:
Rocky Mountain Porver
Exhiblt No. 2Page67 o1221
Case No. PAC-E-2'|-01
\Mhegs: Timottry J. Hemstreet
California Natu ral Resoures Agency
Date: t{tt,
By:Laird, Secretary
Oregon Department of Environmental Quality
Date:
By: Peter Shepherd, Director
Oregon Department of Fish and Wildlife
Date:
By: Curt Melcher, Director
Oregon Water Resources Department
Date:
By: Thomas Byler, Director
6t
Rocky Mountain Power
Exhibit No. 2Page68 ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
Callfornlr Natural Resources Agency
Da,te
By: John Laird, Secretary
Oregon of
Date:/-za -2o16
By: Peter
Oregon Department of X'ish and lVildlife
Date:
By: Curt Melcher, Director
Oregon Water Resources DoParfu ent
Date:
By: Thomas Byler, Direotor
61
Rocky Mountain Porver
Exhibit No. 2Pageag 01221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
California Natural Resources Agency
Date:By: John Laird, Secretary
Oregon Department of Environmental Quality
Date:
By: Peter Shepherd, Director
Oregon Department of Fish and Wildlife
6^-h-Z firfrL Date:77 lu
By: Curt Meloher, Director
Oregon Water Resources Department
Date:
By: Thomas Byler, Director
6l
Rocky Mountain Porver
Exhibit No. 2PageTO ot2i21
Case No. PAGE-21-01
lMness: Timothy J. Hemstreet
Callfornh Nrtural Rerourcec Agency
Date:
By: Jobn Lair( Secretary
Oregon Dcprrtment of Environmentel Qudlty
Date:
By: Peter Shephad, Dircctor
Oregon llcpertment of tr'leh and Wldltfc
Date:
By: Curt Molcher, Director
Orcgon Wrter Rceources Deportment
Date:q/oila
By: Thomas Byler,
6t
Rocky Mountain Porer
Exhibit No. 2 Pege 7 1 ot n1
Case No. PAC-E-21-01
Whess: Timo0ry J. Hemstreet
Khmath River Renewal Corporafion
Date: Augu*30,2016
By:Lester Snow
Title: Mce Prcsldent
Klamath Hydroelectric Settlement Agreement
February 18,2010
as amended Auril6.2016
Rocky Mountain Pover
E(|ribit No. 2Pqe72ot221
Case No. PAGE-21{1
Vlrtness: Tlmottry J. Hemstlset
Yurok Tribe
P Dare: il- 6-/6
By: Thomas P.O'Rourke, Sr.,
Chairperson
Amended Klamath Hydroelectrjc Settlement Agreement
Signature Pages
Rocky Mountain Power
Exhhit No. 2 Page 73 ot 221
Case No. PAGE-21{1
Whess: Tlmothy J. Hemstreet
I(aruk Tribe
ru$ tM*,Date: 4- 6 '/t
By: RusseliAttebery, C$6irman
Amended Klamath Hydroelectric Settlement Agreement
Signature Pages
Rocky Mountain Power
Exhibit No. 2 Page74 ol 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
Klamath Tribes
Date:
By: Chairman
63
Rocky Mountain Povuer
Exhibit No. 2Page75 o1221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
Humboldt County, California
,-at./{Date:
By: Mark Lovelace
Chairman, Board of Supervisors
65
Rod(y Mountain Power
Exhibit No. 2Page76 01221
Case No. PAC-E-21{1
Wtness: Timothy J. Hemstreet
Ady Iliskict Improvement Company
Date:
By: Jason Flowers
66
Rocky Mountain Power
Exhibit No. 2Page77 ol 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
Collins Products, LLC
Date
By: Eric Schooler
President and Chief Executive Officer
67
Roclry Mountain Powtsr
Exhibit No. 2Page78 ot221
Caee No. PAC-E-21-0'!
Wtness: Timothy J. Hemstreet
Enterprise Irrigation District
Date:
By: Michael Beeson" President
68
Roclry Mountain Power
Exhibit No. 2Page79 ot221
Case No. PAC-E-21-01
Wtne$: Timothy J. Hemstreet
Don Johnston & Son
Date:
By: Donald Scott Johnston, Owner
69
Rocky Mountain Power
Exhibit No. 2 Page 80 ol 22'l
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
Inter-County Properties Co., which acquired title as Inter-County TifleCo.
Date:
By: Darrel E. Pierce
70
Rocky Mountain Power
Exhibit No. 2 Page 81 ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
Klamath Irrigation District
Date:
By: Brent Cheyne, President
7t
Rocky Mountain Power
Exhibit No. 2 Page 82 ot 221
Case No. PAC-E-21-01
Witness: Timothy J. Hemstreet
Klamath Drainage District
Date:
By: Tim O'Connor, President
72
Rocky Mountain Poler
Exhiblt No. 2Page 83 ol n1
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstre€t
Klamath Basin Improvement District
Date:
By: GeorgeRajnus, Chairman
73
Rocky Mountain Power
Exhibit No. 2 Page U ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
Klamath Water Users Association
By: Brad Kirby, President
Date:
74
Rocky Mountain Pouer
Exhibit No. 2Page 8$ ot 221
Caee No. PAC-E-2'!-01
\Mtne$: Timothy J. Hemsheet
Bradley S. Luscombe
Date:
By: Bradley S. Luscombe
75
Rocky Mountain Power
Exhibit No. 2 Page 86 ol ?21
Case No. PAC-E-21-01
lMtness: Timottry J. Hemstreet
Malin lrrigation District
Date:
By: Ed Stastry, President
76
Rocky Mounlain Pourcr
Exhibit No. 2Page87 ot?21
Case No. PAC-E-21-01
\Mness: Timothy J. Hemstreet
Midland District Improvement Company
Date:
By: Frank Andersorl President
77
Rocky Mountain Power
Exhibit No. 2Page 88 ol22'l
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
Pioneer District Improvement Company
Date:
By: Lyle Logan, President
78
Rocky Mountain Power
Exhibit No. 2 Page 89 ot 221
Case No. PAC-E-21-01
VMtness: Timothy J. Hemstreet
Plevna District Improvement Company
Date:
By: Steve Metz, President
79
Rocky Mountain Power
Exhibit No. 2 Page 90 oI 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
Reames Golf and Country Club
Date
By: L.H. Woodward, President
80
Rocky Mountain Power
Exhibit No. 2 Page 91 ot 221
Case No. PAC-E-2I-01
Wtness: Timothy J. Hemstreet
Shasta View Irrigation District
Date:
By: Claude Hagerty, President
81
Rocky Mountain Power
Exhibit No. 2 Page 92 ol 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
Sunnyside Irrigation District
Date:By Pat Pattersor5 Presidelrt
82
Rocky Mountain PowEr
Exhibit No. 2 Page 93 ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
Tulelake Irrigation District
Date:
By: Brad Kirby, President
83
Rocky Mountain Power
Exhibit No. 2Page94 ot221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
Upper Klamath Water Users Association
Date
By: Matthew Walter, President
84
Rocky Mountain Power
Exhibit No. 2Page95 ot221
Case No. PAC-E-21-01
Vvitness: Timothy J. Hemstreet
Van Brimmer Ditch Company
Date:
By: Gary Orem, President
85
Rocky Mountain Power
Exhlbit No. 2Page9lt o1221
Case No. PAC-E-2141
lMness: Timothy J. Hemstreet
Randolph Walthall and Jane lYalthall as trustees under declaration of trustdated
November 28,1995
Date:
By: Jane Walthall
86
Rocky Mountain Power
Exhibit No. 2 Page 97 ol 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
Westside Improvement District #14
Date:
By: Steven L. Kandra, President
87
Rocky Mountain Power
Exhibit No. 2 Page 98 of 221
Case No. PAC-E-2l-01
Wtness: Timothy J. Hemstreet
Winema llunting Lodge, Inc.
Date
By: R. David Bolls, III
88
Rocky Mountain Power
Exhibit No. 2Page99 ot221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemslreet
American Rivers
I ":*- ii,*/:/-:'/Date:
By: W. Robert Irvin, President
90
Rocky Mountain Power
Exhibit No. 2 Page 100 ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
Callfomle
q ls 4nlL
Date:
By:Director
9l
Rodry Mountain Power
Exhibit No. 2Page 101 o1221
Case No. PAC-E-21-01
\Mtness: Timothy J. Hemstreet
Itrsdttrtc Rerourcet
Date:rlr-sf r o
By Spain
Northwest Regional Director
9l
Rocky Mountain Power
Exhibit No. 2Page 102 o1221
Case No. PAC-E-21-01
\Mtness: Timothy J. Hemstreet
Northcrn Callfomle Coun@ Fodsradon of Flyl[rherc
flatc:EA /zu/ 6
By (-/
Vicc-Presideng Conservation
y2
Rocky Mountain Power
Exhibit No. 2 Page 103 ol 221
Case No. PAGE-21-01
\Mtness: Timothy J. Hemstreet
Pacffic Coast Fedendon of Firhemen's Associefionr
Date:t L tg
Regional Director
93
Roclry Mountain Poiver
Exhibit No. 2Page 1A4 o1221
Case No. PAC-E-21-0'|
lMtness: Timothy J. Hemslreet
Salmon River Retoradon Council
Date
By: PeteyBrucker
94
RodcyMomtrln Portr
E fibfi t!b. 2 Ptgc 1G of 221
C't.No.PAC€-21{i
lrfttcu: 11m00ry J. llcmfi;c[
Trout Unlimlted
t ':=>_-*---.-)
't lr* (tuDate:
By: Chris Wood
Ctrief Executive Officer
b,r--,4*l1" 1gw -\
L".1, tu r ',.. ? iqrtu,
Amended Klamath Hydroeletric Settlernent Agreoment
Signatur€ Pages
Rocky Mountain Power
Exhibit No. 2 Page lOO ot 221
Case No. PAC-E-21-01
\Mtness: Timothy J. Hemstreet
Klamath Riverkeeper
Date:
By: Konrad Fisher, Exective Offrcer
96
Rocky Mountain Power
Exhibit No. 2 Page 107 ot 221
Case No. PAC-E-21-01
Vvitness: Timothy J. Hemstreet
Sustalnable
Date:r/r'y'"
98
Rocky Mountain Power
Exhibit No. 2Page 1OB o1221
Case No. PAC-E-21-01
\Mtness: Timothy J. Hemstreet
Arthur G. Baggetf Jr.r
Date:By: Arthur G. Baggett, Jr.
1Mr. Baggett is signing this Agreement as a recommendation to the California State Water ResourcesControl
Board, and not as aParty.
98
Rocky Mountain Power
Exhibit No. 2Page 109 ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
APPENDICES
=,n, o'tl"":? Y.iTi1 e :'"1'r"l
Case No. PAC-E-21-01
ACTIONS IN APPENDIX A HAVE BEEN COMPLEITSS: TiMOthV J. HEMSITEEt
OR ARE NO LONGERAPPLICABLE
APPENDIX A
Coordination Process for the Studies Supporting the SecretarialDetermination
l. Introduction
While the proposed Secretarial Determination is an inherently governmental function that may
not be delegated to others, the Federal Parties understand and recognizethe unique nature ofthis
task and are committed to participating in the development of the basis for the Secretarial
Determination in a Timely, open, transparent manner and employing the highest standards of
scientific integrity. As part of that process and as appropriate and governed by Applicablelaw,
the Secretary will:
A. seek the input from the other Parties and the public, on:
identification of data and analysis necessary to make the Secretarial
Determination;
identification of existing data and analysis and the protocols neededto
assess its suffrciency;
work plans to obtain and study new information necessary to fillmaterial
data gaps that may exist, which may include sediment contamination
studies (including but not limited to dioxin); and
any other process to gather, develop, and assess any additionaLdata,
existing data, or analysis determined necessary by the United Statesto
support the Secretarial Determination,
B
C create the means by which the Parties can ensure Timely performance ofthe
studies.
utilize the expertise each of the Parties may have with regard to data andanalysis
that is necessary to support the Secretarial Determination; and
Further, the Federal Parties have expressed their commitment to ensuring that thestudies,
rq)orts, and analyses utilized to inform the Secretarial Determination are supported bya
complete and scientifically-sound record.
2. Pumose of the Coordination Process
The purpose of the Coordination Process is to seek, discuss, and consider the views of theParties
regarding the basis of the Secretarial Determination in a Timely manner in support ofthe
Secretary's decision-making process. As described in Section 3 below, the Secretary willfoster
communication between the Federal agencies engaged in the Determination and the Partiesto
A-1
11.
iii.
iv.
E,h i b *t::g Y"iTil I :'"1',"i
Case No. PAC-E-21-01
ACTIONS IN APPENDIX A HAVE BEEN COMPLEfETS: TiMOthY J' HEMSITCEI
OR ARE NO LONGER APPLICABLE
this Settlement. This includes providing Timely notice to allow the Parties and the publicto
provide meaningful input to the items identified in Section 1 above.
3. The Process
A.To provide an opportunity for the non-federal Parties to provide input to the
Secretary on the categories of data outlined in Section 1 above, there is
established under the terms of this Settlement a Technical Coordination
Committee (TCC) consisting of membership from all of the non-Federal Partiesto
this Settlement. The TCC will meet or hold conference calls on a monthlybasis,
at a minimum, and more often as deemed necessary. The TCC will also form
sub-teams and hold separate workshops/meetings as necessary to address specific
technical and scientific issues. The principal objective of the TCC will be to
exchange information and data, as appropriate, among the non-federal Parties on
technical aspects of the Secretarial Determination that may affect the resourcesof
the non-federal Parties and provide input to the Federal Parties. The Federal
Parties will hold public workshops or otherwise provide Timely information tothe
TCC and the public concerning the status of the Determination, the studies in
support of the Determination and the environmental compliance actions. To the
extent practicable and in accordance with Applicable Law, the Federal Partieswill
provide the information necessary for the non-federal Parties to have Timelyand
meaningful input consistent with the schedule for completing the Secretarial
Determination. The TCC will provide its input in writing to the Federal Parties
for their consideration, consistent with the CoordinationProcess.
The Parties may participate in the NEPA process as cooperating agencies, if
eligible under the applicable Federal regulations and guidance, or as members of
the public.
C Nothing in this Settlement shall restrict the Department of the Interior orother
Federal agency from providing funding through other agreements ormemoranda
ofunderstanding.
4. Meet and Confer
This Coordination Process is intended to provide the Parties with the opporhrnity toprovide
Timely and meaningful input to the Federal Parties' actions in carrying out the terms ofthis
Settlement. If the Parties flrnd that their needs are not being met by this CoordinationProcess,
then the Parties may engage in Meet and Confer Procedures to try to address theParties'
concerns.
5. Limitations
This Process is not intended to, nor does it, create any right, benefit, or trustresponsibility,
substantive or procedural, enforceable at law or equity by any person or party against theUnited
A-2
B.
on,ont"":?y"iTni'"tr;;
Case No. PAC-E-21-01
ACTIONS IN APPENDIX A IIAYE BEEN COMPLETIED'' TiMOthY J. HCMSITEEI
OR ARE NO LONGER APPLICABLE
States, its agencies, its officers, or any other person. The provisions of this Process arenot
intended to direct or bind anyperson.
6. Govemment-to-Government Relationship
In accordance with Applicable Law, nothing in this Coordination Process is intended to waiveor
supersede any obligation of the United States to fuIfilI its govemment-to-government
relationship with any Indian Tribe, state, county, or local government concerning the Secretarial
Determination or this Settlernent.
A-3
Rocky Mountain Power
Exhibit No. 2 Page 113 ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
APPENDIX B
Interim Measures Implementation Committee (Interim Measure 1)
1. Pumose and Goal of Committee
The purpose of the lnterim Measures Implementation Committee (IMIC orCommittee)
is to collaborate with PacifiCorp on ecological and other issues related to the
implementation of the Interim Measures set forth in Appendix D of theSettlement.
The primary goals of the IMIC are: (a) to achieve consensus where possible; and
(b) timely implementation of the matters within the scope of the IMlC'sresponsibilities
under the Settlement.
2. Committee Functions and Responsibilities
2.1 The IMIC shall meet, discuss, and seek to reach consensus on implementationof
the following Non-ICP Interim Measures as detailed in each InterimMeasure:
2.1.1 Interim Measure 7. The IMIC will consult with PacifiCorp to approve
gravel placement projects and approve third parties to implement the
projects.
2.1,.2 Interim Measure 8. The IMIC will consult with PacifiCorp on a planto
remove the sidecast rock barrier located upstream of the J.C. Boyle
Powerhouse, and approve a schedule for the removal.
2.1.3 Interim Measure I l. The IMIC will consult with PacifiCorp to identify
studies or pilot projects and to develop a priority list of projects to be
carried out following the DRE's acceptance of the FERC surrenderorder,
as approved by the agencies specified in lnterim Measure I l.
2.1.4 Interim Measure 13. The IMIC will identify species specific habitatneeds
on which to base J.C. Boyle Dam instream flow releases in the event dam
removal occurs in a staged manner and anadromous fish are naturallyand
volitionally present in the J.C. Boyle Bypass Reach.
2.1.5 Interim Measure 15. The IMIC will resolve significant disputes thatmay
arise regarding the water quality monitoring plan content orfunding.
2.2 The IMIC shall advise the Settlement Parties conceming anyproposed
amendments to the Interim Measures based on monitoring conducted underthe
lnterim Measures and any other adaptive management considerations.
PacifiCorp will prepare and provide to the IMIC periodic reports, no less
frequently than annually, on the status of implementation of the lnterim
Conservation Plan mea$ues set forth in Appendix C of the Settlement.
2.3
B-1
Rocky Mountain Power
Exhibit No. 2 Page 114 ot 22'l
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
3. Committee Membership and Meetine Participation
3.1 The IMIC shall be comprised of PacifiCorp and the following members, subject
to their signing the Settlement:
A.State and Federal Members: One representative each from: U.S.
Department of the Interior, National Marine Fisheries Service, Oregon
Department of Environmental Quality, Oregon Department of Fishand
Wildlife, Oregon Water Resources Department, and the Califomia
Departrnent of Fish and Wildlife.
Tribal Members: One representative each from the Tribes.
Other Members: One representative each from: conservation group
Parties, fishing group Parties, signatory counties, and irrigationgroup
Parties.
The california state water Resources control Board and the North coast
Regional Board may also be members of the IMIC even though they havenot
signed the Settlement.
3.3 Each member or category of members may designate a primary representativeto
the IMIC within 30 days after the Effective Date of the Settlement, or at anytime
thereafter with five days' notice. Designation shall be by Notice to the Parties in
accordance with Section 8.5 of the Sefflement. Each member or categoryof
members may name alternative representatives to the IMIC. Failure to designate
a representative shall not prevent the IMIC from convening or conducting its
functions in accordance with the time schedules established in the Settlement.
3.4 The IMIC, by unanimous agreement not subject to Dispute Resolution, maygrant
any other Party to the Settlement membership status on the IMIC, providedthat
the entity seeking membership submits a proposal to the IMIC thatrequests
membership and demonstrates: (l) reasons why its interests are not adequately
represented by present IMIC membership; and (2) appropriate qualifications of
the entity to participate in the IMIC.
3.5 Each member should select a representative who has relevant trainingor
experience with natural resource management.
3.6 Participation by identified state and federal resource agencies complementstheir
statutory responsibility and does not otherwise affect their authority. Issues
involving the exercise of specific agency authority can be discussed, butdecisions
are not delegated to the Committee.
3.7 The IMIC may establish technical working groups to facilitate implementationof
individual Interim Measures or categories of Interim Measures, such as a
B-2
B
C
3.2
Rocky Mountain Power
Exhibit No. 2Page 115 o1221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
Fisheries Technical Working Group and a Water Quality TechnicalWorking
Group. The role of the technical working groups would be to make
recommendations to the IMIC.
4. Meetine Provisions
4.1 PacifiCorp shall convene the IMIC not later than three months after theEffective
Date of the Sefflement.
PacifiCorp will arrange, administer, and chair all meetings. A meetingfacilitator
may be used if necessary. PacifiCorp will provide no fewer than l0 days'prior
notice of any meeting to the IMIC members, other Settlement Parties and
agencies with jurisdictional authority, unless otherwise agreed to by the IMICoT
required in order to meet a Settlement deadline or other emergencycircumstance.
PacifiCorp, or the facilitator, will provide draft meeting summaries for
conclurence by the IMIC prior to final dishibution. Meeting summaries willnote
member concerns.
The IMIC will establish protocols for meetings such as agenda development,
location and scheduling. Meetings will be fairly distributed between Portland,the
Medford area, and Sacramento with teleconferencing provided between sites.
The meeting agenda will list specific Interim Measures and all other topics for
action or discussion.
Meetings will be scheduled as required by the actions contained withinspecific
Interim Measure provisions, but no less frequently than annually.
PacifiCorp will bear all costs associated with conducting meetings. Eachmember
will bear its own cost of attendance.
PacifiCorp will circulate final meeting summaries and any otherwritten
comments.
The role of the IMIC will be evaluated at the end of five years after theEffective
Date of the Settlement. The members will review the IMIC and determine ifit
should remain the same, be modified or discontinued.
5. Committee Deliberations
5.1 During meetings, prior to Committee deliberations, other Settlement Partiesand
agencies with jurisdictional authority may address the Committee andprovide
comments on each agenda topic being discussed.
B-3
4.2
4.3
4.4
4.5
4.7
4.8
4.9
4.6
5.2
5.3
5.4
5.5
Rocky Mounlain Power
Exhibit No. 2 Page 116 ot 221
Case No. PAC-E-21-01
Witness: Timothy J. Hem$treet
Following Committee deliberation, the Committee shall seek to reachconsensus
of all members present. Committee decisions shall be based on atwo-thirds
majority vote of those participating.
5.2.1 PacifiCorp or the facilitator will provide the results of the vote to allIMIC
members within three working days.
5.2.2 Decisions of the Committee will stand unless a Party provides Notice
within seven working days that it will seek Dispute Resolution pursuantto
Section 8.6 of the Settlement on the ground of inconsistency with the
Settlement.
5.2.3 In the event that PacifiCorp believes a proposed action or failure Timelyto
propose an action: (1) is inconsistent with this Settlement or anyother
contract to which it is a party; (2) violates the terms of the FERC license
or other regulatory requirement; (3) interferes with operations; or
(4) subjects PacifiCorp to undue risk of litigation, cost overuns, or
liability, PacifiCorp will consult with the IMIC to identify a modifiedor
alternative action. ln the event the IMIC does not approve PacifiCorp's
modified or alternative action, PacifiCorp may implement its proposed
action after obtaining approval by any agency specifically assignedthat
decision under the particular Interim Measure, and after obtaining any
necessary regulatory approvals. An IMIC member who disagrees withthe
elements of PacifiCorp's proposed actions that are not specified inthe
Interim Measures may dispute those elements in applicableregulatory
processes. The Parties agree that such disputes are beyond the scope of
Settlement Section 2. 1.
Any requirements for PacifiCorp to consult with a resource agency orother
member under an Interim Measure that specifically references that agency or
other member shall be deemed satisfied by consultation with that agency orother
member through the IMIC, provided that the IMIC is in existence and thatagency
or other member has participated through the IMIC in consultation on the
requisite items. To the extent agency consultation is not provided through
Committee participation, PacifiCorp shall comply with all applicableregulatory
consultation requirements including plan submission to appropriate agencies,
including agencies specified in the Interim Measure. However, consultationwith
an agency representative participating in the Committee shall not be deemedto
satisfy or predetermine any Regulatory Approval required under Applicablelaw.
PacifiCorp will seek to resolve concems expressed by the federal and statefish
and wildlife agencies and the state water quality agencies on matters inwhich
they have expertise prior to seeking consensus of the IMIC.
These provisions for Committee deliberations do not supersede a decision byan
agency specifically assigned that responsibility under an lnterimMeasure.
B-4
Rocky Mountain Power
Exhibit No. 2Page 117 ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
6. Support for Committee Decisions
6.1 Committee members shall first use the Dispute Resolution process ofSettlement
Section 8.6 to resolve disputes arising from Committee deliberations.
6.2 If Dispute Resolution is unsuccessful and time allows, the IMIC may convene an
independent science advisory panel. The IMIC may considerthe
recommendations of the independent science advisory panel to resolve the
dispute.
6.3 All Committee members participating in a consensus decision will support
PacifiCorp's defense of such decision in any forum where the decision is
challenged and the member is participating, to the extent permitted byApplicable
Law and consistent with Section2.l.3 of the Settlement. For this purpose,
participating means non-opposition and does not include absence.
B-5
Rocky Mountain Power
Exhibit No. 2 Page 118 ot 221
Case No. PAC-E-21-01
Vvitness: Timothy J. Hemstreet
AEPINDILq
Interim Conservation Plan (ICP) Interim Measures2
Interim Measure 2: California Klamath Restoration Eund / Coho tr'nhancementtr'und
PacifiCorp shall establish a fund to be administered in consultation with the California
Department of Fish and Wildlife (after providing notice and opportunity for comment to the
State Water Resources Control Board and North Coast Regional Water Quality ControlBoard)
and NMFS to fund actions within the Klamath Basin designed to enhance the survival and
recovery of coho salmon, including, but not limited to, habitat restoration andacquisition.
PacifiCorp has provided $510,000 to this fund in 2009 and shall continue to provide thisamount
of funding annually by January 31 of each subsequent year in which this funding obligation
remains in effect. Subject to Section 6.1.1, this funding obligation shall remain in effect untilthe
time of decommissioning of all of the Facilities inCalifornia.
Interim Measure 3: Iron Gate TurbineVentins
PacifiCorp shall implement turbine venting on an ongoing basis beginning in 2009 to improve
dissolved oxygen concentrations downstream of kon Gate dam. PacifiCorp shall monitor
dissolved oxygen levels downstream of Iron Gate dam in 2009 and develop a standardoperating
procedure in consultation with NMFS for turbine venting operations and monitoring following
turbine venting operations in 2009.
Interim Measure 4: Hatcherv and Genetics ManasementPlan
Beginning in 2009, PacifiCorp shall fund the development and implementation of a Hatcheryand
Genetics Management Plan (HGMP) for the Iron Gate Hatchery. PacifiCorp, in consultation
with the National Marine Fisheries Service and the California Department of Fish andWildlife,
will develop an HGMP for approval byNMFS in accordance with the applicable criteriaand
requirements of 50 C.F.R. g 223.203(bX5). To implement the HGMP, PacifiCorp, in
consultation withNMFS and CDFW, will develop and agree to fund an adequate budget. When
completed, CDFW shall implement the terms of the HGMP at Iron Gate Hatchery inconsultation
with PacifiCorp andNMFS. Funding of this measure is in addition to the 100 percentfunding
described in Non-ICP Interim Measure 18.
Interim Measure 5: Iron Gate tr'low Variahilitv
In coordination withNMFS, USFWS, States and Tribes, PacifiCorp and Reclamationshall
annually evaluate the feasibility of enhancing fall and early winter flow variability tobenefit
2 The complete ICP was filed at FERC on November 25, 2008 and includes some additional measures notreflected
in this Appendix that are not part of this Settlement.
c-1
Rocky Mountain Power
Exhibit No. 2 Page '119 ot 221
Case No. PAC-E-21-01
Vvitness: Timothy J. Hemstreet
salmonids downstream of Iron Gate Dam, subject to both PacifiCorp's and Reclamation'slegal
and contractual obligations. In the event that fall and early winter flow variability canfeasibly
be accomplished, PacifiCorp, in coordination with NMFS, USFWS, and Reclamation will,upon
a final lncidental Take Permit issued to PacifiCorp by NMFS becoming effective, annually
develop fall and early winter flow variability plans and implernent those plans. Any suchplans
shall have no adverse effect on the volume of water that would otherwise be available forthe
Klamath Reclamation Proj ect or wildlife refuges.
iel
PacifiCorp has established a fund in the amount of $500,000 in total funding to study fishdisease
relationships downstream of hon Gate Dam. Research proposals will be solicited andagreed
upon by PacifiCorp and NMFS for the purpose of determining that the projects areconsistent
with the criteria and requirements developed by PacifiCorp and NMFS in the ESA review
process applicable under Settlement Section 6.2.PacifrCorp will consult with the KlamathRiver
Fish Health Workgroup regarding selection, prioritization, and implementation of such studies,
and such studies shall be consistent with the standards and guidelines contained in theKlamath
River Fish Disease Research Plan and any applicable recoveryplans.
c-2
Rocky Mountain Power
Exhibit No. 2 Page 120 ot 221
Case No. PAC-E-21-01
VMtness: Timothy J. Hemstreet
AEPINDIILD
Non-ICP Interim Measures3
Interim Measure 7: J.C. Boyle Gravel Placement and/or HabitatEnhancement
Beginning on the Effective Date and continuing through decommissioning of the J.C.Boyle
Facility, PacifiCorp shall provide funding of $150,000 per year, subject to adjustnent for
inflation as set forth in Section 6.1.5 of the Settlement, for the planning, permitting, and
implementation of gravel placement or habitat enhancement projects, including related
monitoring, in the Klamath River above CopcoReservoir.
Within 90 days of the Effective Date, PacifiCorp, in consultation with the IMIC, shallestablish
and initiate a process for identiffing such projects to the Committee, and, upon approval of a
project by the Committee, issuing a contract or providing funding to a third party approvedby
the Committee for implementation of theproject.
The objective of this Interim Measure is to place suitable gravels in the J.C. Boyle bl,pass and
peaking reach using a passive approach before high flow periods, or to provide for otherhabitat
enhancement providing equivalent fishery benefits in the Klamath River above CopcoReservoir
Interim Measure 8: J.C. Rovle Rypass RarrierRemoval
Within 90 days of the Effective Date, PacifiCorp, in consultation with the Committee, shall
commence scoping and planning for the removal of the sidecast rock barrier located
approximately three miles upstream of the J.C. Boyle Powerhouse in the J.C. Boylebypass
reach. In accordance with a schedule approved by the Committee, PacifiCorp shall obtain any
permits required for the project under Applicable Law and implement removal of the barrier. If
blasting will be used, PacifiCorp shall coordinate with ODFW to ensure the work occursduring
the appropriate in-water work period. The objective of this hrterim Measure is to provide forthe
safe, timely, and effective upstream passage of Chinook and coho salmon, steelhead trout,
Pacif,rc lamprey, and redband trout.
Jnterim Measure Q: J.C. Rovle Powerhouse Gase
Upon the Effective Date, PacifiCorp shall provide the U.S. Geological Survey (USGS) with
continued funding for the operation of the existing gage below the J.C. Boyle Powerhouse
(USGS Gage No. 1 15 10700). Funding will provide for continued real-time reporting capability
for half-hour interval readings of flow and gage height, accessible via the USGSwebsite.
3 The Parties agree that PacifiCorp will implement the interim measures as provided in this Appendix. Pursuantto
Section 7.3.6 ofthe Settlement, ifthe Parties determine that the schedule for Facilities Removal must extend beyond
December 31,2020, then the Parties shall consider whether modification of Interim Measures is necessaryto
appropriately balance costs to customers and protection ofnatural resources based on circumstances at that time.
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Exhibit No. 2Page 121 ol 221
Case No. PAC-E-21-01
VMtness: Timothy J. Hemstreet
PacifiCorp shall continue to provide funding for this gage until the time of decommissioningof
the J.C. Boyle Facility.
Interim Measure 10: Water Oualitv Conference
PacifiCorp shall provide one-time funding of $100,000 to convene a basin-wide technical
conference on water quality within one year from the Effective Date of this Settlement. The
conference will inform participants on water quality conditions in the Klamath River basinand
will inform decision-making for lnterim Measure No. I l, with a focus on nutrient reductionin
the basin including constructed wetlands and other treatment technologies and waterquality
accounting. PacifiCorp, the North Coast Regional Water Quality Control Board, and theOregon
Department of Environmental Quality, will convene a steering committee to develop theagenda
and panels.
Interim Measure 11: Interim Water Oualitvlmnrovements
The purpose of this measLre is to improve water quality in the Klamath River during thelnterim
Period leading up to dam removal. The emphasis of this measure shall be nutrientreduction
projects in the watershed to provide water quality improvements in the mainstem KlamathRiver,
while also addressing water quality, algal and public health issues in Project reservoirs and
dissolved oxygen in J.C. Boyle Reservoir. Upon the Effective Date of the Settlement untilthe
date of the DRE's acceptance of the FERC surrender order, PacifiCorp shall spend upto
$250,000 per year to be used for studies or pilot projects developed in consultation withthe
Implementation Committee regarding the following:
Development of a Water Quality Accounting Framework
Consffucted Treatment Wetlands Pilot Evaluation
Assessment of ln-Reservoir Water Quality Control Techniques
Improvement of J.C. Boyle Reservoir Dissolved Oxygen
Within 60 days of the DRE's acceptance of the FERC surrender order, PacifiCorp shall develop
a priority list of projects in consultation with the Implementation Committee. The prioritylist
will be informed by, among other things, the information gained from the specific studies
conducted before the DRE's acceptance of the FERC surrender order and the information
generated at the water quality conference specified in Interim Measure 10. Following theDRE's
acceptance of the FERC surrender order, PacifiCorp shall provide funding of up to $5.4million
for implementation of projects approved by the Oregon Department of Environmental Quality
(ODEQ) and the State and Regional Water Boards, and up to $560,000 per year to coverproject
operation and maintenance expenses related to those projects, these amounts subject to
adjustment for inflation as set forth in Section 6.1.5 of this Settlement. Recognizing the
emphasis on nutrient reduction projects in the watershed while also seeking to improvewater
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Rocky Mountain Power
Exhibit No. 2 Page 122 of 221
Case No. PAC-E-21-01
Vvitness: Timothy J. Hemstreet
quality conditions in and downstream of the Project during the Interim Period, the Parties agree
that up to 25 percent of the funding in this measure for pre-surrender-order-acceptance studies
and post-surrender-order-acceptance implementation may be directed towards in-reservoirwater
quality improvement measures, including but not limited to J.C. Boyle.
Interim Measure 12: J.C. Bovle Bvoass Reach and Spencer CreekGasins
PacifiCorp shall install and operate stream gages at the J.C. Boyle Bypass Reach and atSpencer
Creek. The J.C. Boyle Bypass Reach gaging station will be located below the dam and fish
ladder and fish bypass outflow, but above the springs in order to record flow releases fromJ.C.
Boyle Dam. The Spencer Creek gage will utilize an existing Oregon Water Resources
Department gaging location. It is assumed that the required measurement accuracy willbe
provided using stage gaging at existing channel cross-sections with no need for constructed
weirs. The installed stream gages shall provide for real-time reporting capability forhalf-hour
interval readings of flow and gage height, accessible via an agreed-upon website, until suchtime
as it is accessible on the USGS website. The Spencer Creek gage shall be installed in timeto
provide flow indication for hon Gate Flow Variability (ICP Interim Measure 5). Both gages
shall be installed and functional prior to September 1, 2010. Installation of the bypass gage, and
measurement and maintenance shall conform to USGS standards. The Spencer Creek gagewill
be maintained according to USGS standards, as applicable.
Interim Measure 13: Flow Releases and Ramo Rates
PacifiCorp will maintain current operations including instream flow releases of 100 cubic feet
per second (cfs) from J.C. Boyle Dam to the J.C. Boyle bl,pass reach and a 9-inch per hourramp
rate below the J.C. Boyle powerhouse prior to transfer of the J.C. Boylefacility.
Provided that if anadromous fish have volitional passageato the J.C. Boyle blpass reachafter
removal or partial removal of the lower dams and before J.C. Boyle is transferred, PacifiCorp
will operate J.C. Boyle as a run of river facility with a targeted ramp rate not to exceedtwo
inches per hour, and flows will be provided in the J.C. Boyle bypass reach to provide forthe
appropriate habitat needs of the anadromous fish species. The operation will also avoid and
minimize take of any listed species present. Daily flows through the J.C. Boyle powerhousewill
be informed by reservoir inflow gages below Keno Dam and at Spencer Creek. Providedfurther
that if anadromous fish have volitional passage upstream of Iron Gate Dam before the Copco
Facilities are transferred, PacifiCorp will operate the remaining Copco Facility that isfurthest
downstream as a run of the river facility with a targeted ramp rate not to exceed two inchesper
hour and coordinate with NMFS and FWS to determine if any other flow measures are necessary
a Volitional passage shall not be deemed to have occurred if presence of anadromous fish is the result of
anthropogenic placement of such fish above, within or below the J.C, Boyle Bypass Reach, including as a result of
scientific studies, experiments or investigations, prior to removal of Facilities downstream of the J.C. Boyle Bypass
Reach to the extent sufficient to provide fish passage past those Facilities.
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Rocky Mountain Power
Exhibit No. 2 Page 123 ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
to avoid or minimize take of any listed species present. [n either event, flows in therespective
bypass reaches will be based on species-specific habitat needs identified by theIMIC.
The Parties agree that if dam removal occurs in a staged manner, J.C. Boyle is intended to bethe
last dam decommissioned. If, however, the FERC surrender order or Definite Plan directs a
different sequence for Decommissioning and Facilities Removal, then the Parties shall Meetand
Confer to identify adjustments necessary to implement Facilities Removal in a manner that is
consistent with PacifiCorp's Economic Analysis.
Interim Measure 14: 3.000 cfs Power Generation
Upon approval by OWRD in accordance with Exhibit 1, PacifiCorp may divert a maximumof
3,000 cfs from the Klamath River at J.C. Boyle dam for purposes of power generation at theJ.C
Boyle Facility prior to decommissioning of the facility. Such diversions shall not reducethe
minimum flow releases from J.C. Boyle dam required of PacifiCorp under lnterim Measure 13.
The implementation of this interim measure shall not: reduce or adversely affect the rightsor
claims of the Klamath Tribes or the Bureau of Indian Affairs for instream flows; affectthe
operation of Link River dam or Keno Dam or any facility of the Klamath ReclamationProject;
or otherwise adversely affect lake levels at Upper Klamath Lake, flows in Link River, orKeno
reservoir elevations.
Interim Measure l5: Water OualitvMonitorinq
PacifiCorp shall fund long-term baseline water quality monitoring to support damremoval,
nutrient removal, and permitting studies, and also will fund blue-green algae (BGA) andBGA
toxin monitoring as necessary to protect public health. Funding of $500,000 shall beprovided
per year. The funding shall be made available beginning on April 1, 2010 and annuallyon
April 1 until the time the dams are removed. Annual coordination and planning of the
monitoring program with stakeholders will be performed through the Klamath BasinWater
Quality Group or an entity or entities agreed upon by the Parties and in coordination withthe
appropriate water quality agencies. The Regional Board and ODEQ will take responsibilityfor
ensuring that the planning documents will be completed by April I of each year. Monitoring
will be performed by the Parties within their areas of regulatory compliance orTribal
responsibility or, alternatively, by an entity or entities agreed upon by the Parties. Monitoring
activities will be coordinated with appropriate water quality agencies and shall be conductedin
an open and transparent manner, allowing for participation, as desired, among the Parties and
water quality agencies.
Significant disputes that may arise between the Parties, or with the Regional Board, regardingthe
monitoring plan content or funding will be resolved by the Implementation Committee, actingon
input and advice, as necessary, from the water quality agencies. Notwithstanding theforgoing,
the Oregon Department of Environmental Quality and the California State Water Resources
Control Board shall make final decisions regarding spending of up to $50,000 dedicated to BGA
and BGA toxin monitoring as necessary to protect publichealth.
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Exhibit No. 2 Page 124 ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
Interim Measure 1.6: Water Diversions
PacifiCorp shall seek to eliminate three screened diversions (the Lower Shovel Creek Diversion
- 7.5 cfs, Claim # S015379; Upper Shovel Creek Diversion - 2.5 cfs, Claim # 5015381; and
Negro Creek Diversion - 5 cfs, Claim # S015380) from Shovel and Negro Creeks and shall seek
to modify its water rights as listed above to move the points of diversion from Shovel andNegro
Creeks to the mainstem Klamath River. Should modification of the water rights be feasible, and
then successful, PacifiCorp shall remove the screened diversions from Shovel and Negro creeks
associated with PacifiCorp's water rights prior to the time that anadromous fish are likely tobe
present upstream of Copco reservoir following the breach of Iron Gate and Copco dams. To
continue use of the modified water rights, PacifiCorp will install screened irrigationpump
intakes, as necessary, in the Klamath River. The intent of this measure is to provideadditional
water to Shovel and Negro creeks while not significantly diminishing the water rights orthe
value of ranch property owned by PacifiCorp. Should costs for elimination of the screened
diversions and installation of a pumping system to provide continued use of the waterrights
exceed $75,000 then the Parties will Meet and Confer to resolve theinconsistency.
Interim Measure 17: Fall Creek FlowReleases
Within 90 days of the Effective Date and during the lnterim Period for the duration of its
ownership while this Settlement is in effect, PacifiCorp shall provide a continuous flowrelease
to the Fall Creek bypass reach targeted at 5 cfs. Flow releases shall be provided bystoplog
adjustment at the diversion dam and shall not require new facility construction or theinstallation
of monitoring equipment for automated flow adjustrnent or flowtelemetry.
Additionally, if anadromous fish have passage to the Fall Creek following removal ofthe
California dams, flows will be provided in the Fall Creek bypass reach to provide for the
appropriate habitat needs of the anadromous fish species of any kind that are naturally and
volitionally present in the Fall Creek bypass reach. Flows will be based on species specific
habitat needs identified by the IMIC. The operation will also avoid and minimizetake ofany
listed species present.
Jnterim Measure 18: Hatcherv Eundinq
Beginning in 2010, PacifiCorp shall fund 100 percent of Iron Gate Hatchery operations and
maintenance necessary to fulfill annual mitigation objectives developed by theCalifornia
Department of Fish and Wildlife in consultation with the National Marine Fisheries Serviceand
consistent with existing FERC license requirements. PacifiCorp shall provide funding of upto
$ 1.25 million dollars per year for operations and maintenance costs, subject to adjustment for
inflation as set forth in Section 6.1.5 of the Settlement. These operations and maintenancecosts
shall include a program for 25 percent fractional marking of chinook at the kon Gate Hatchery
facilities as well as the current 100 percent marking progftlm for coho and steelhead. Laborand
materials costs associated with the 25 percent fractional marking program (fish marking, tags,
tag recovery, processing, and data entry) shall be included within these operationsand
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Exhibit No. 2 Page 125 oI 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
maintenance costs. This operations and maintenance funding will continue until the removalof
Iron Gate Dam.
PacifiCorp will provide one-time capital funding of $1.35 million for the 25 percentfractional
marking program. This funding will include the purchase of necessary equipment (e.g. electrical
upgrades, automatic fish marking trailer, tags and a wet lab modular building for processingfish
heads). PacifiCorp will ensure the automatic fish marking trailer is available for use byApril
2011. PacifiCorp is not responsible for funding the possible transition to a 100 percentChinook
marking program in the future.
Interim Measure la: Hatchery Production Continuitv
Within six months of the Effective Date of the Settlement, PacifiCorp will begin a studyto
evaluate hatchery production options that do not rely on the current hon Gate Hatcherywater
supply. The study will assess groundwater and surface water supply options, waterreuse
technologies or operational changes that could support hatchery production in the absenceof
Iron Gate Dam. The study may include examination of local well records and the feasibilityof
increasing the production potential at existing or new hatchery facilities in thebasin.
Based on the study results, and within six months following the DRE's acceptance of theFERC
surrender order, PacifiCorp will propose a post-Iron Gate Dam Mitigation Hatchery Plan(Plan)
to provide continued hatchery production for eight years after the removal of Iron GateDam.
PacifiCorp's eight- year funding obligation assumes that dam removal will occur within oneyear
of cessation of power generation at hon Gate Dam. If dam removal occurs after one yearof
cessation of power generation at Iron Gate Dam, then the Parties will Meet and Confer to
determine appropriate hatchery funding beyond the eight years. PacifiCorp's Plan shallpropose
the most cost effective means of meeting hatchery mitigation objectives for eight yearsfollowing
removal of Iron Gate Dam. Upon approval of the Plan by the California Departrnent of Fishand
Wildlife or Oregon Departrnent of Fish and Wildlife (as appropriate) and the NationalMarine
Fisheries Service, PacifiCorp will begin implementation of the Plan. Plan implementationmay
include PacifiCorp contracting with the owners or administrators of other identified hatchery
facilities and/or funding the planning, design, permitting, and construction of measuresidentified
in the Plan as necessary to continue to meet mitigation production objectives. Five years after
the start of Plan implementation, or as otherwise agreed by PacifiCorp, the California
Department of Fish and Wildlife or Oregon Department of Fish and Wildlife (as appropriate)and
the National Marine Fisheries Service, the CDFW or ODFW (as appropriate) and the NMFS
shall meet to review the progress of Plan implementation. The five-year status review willalso
provide for consideration of any new information relevant to Plan implementation. Plan
implementation shall ultimately result in production capacity sufficient to meethatchery
mitigation goals for the eighryear period being in place and operational upon removal oflron
Gate Dam.
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Rocky Mountain Power
Exhibit No. 2 Page 126 ol 221
Case No. PAC-E-21-01
Vvitness: Timothy J. Hemstreet
Interim Measure 20: Hatcherv Fundinq After Removal of Iron GateDam
After removal of kon Gate Dam and for a period of eight years, PacifiCorp shall fund 100
percent of hatchery operations and maintenance costs necessary to fulfill annualmitigation
objectives developed by the Califomia Department of Fish and Wildlife in consultation withthe
National Marine Fisheries Service. The hatchery mitigation goals will focus on chinook
production, with consideration for steelhead and coho, and may be adjusted downward from
current mitigation requirements by the California Department of Fish and Wildlife andNational
Marine Fisheries Service, in consultation with the other Klamath fuver fish managers, in
response to monitoring trends.
Interim Measure 21: BLM Land ManasementProvisions
Beginning in 2010 and continuing until Decommissioning of the J.C. Boyle facility,PacifiCorp
shall fund land management activities by the Bureau of Land Management as specified inthis
interim measure. BLM will provide PacifiCorp an annual Work Plan for the management
measures described below for road maintenance, invasive weed management, culturalresource
management, and recreation. The Work Plan will include the status of Work Plan tasks fromthe
prior year, a description of the prioritized tasks for the upcoming year, and their estimatedcosts.
PacifiCorp or BLM will mutually establish the annual delivery date of the Work Plan takinginto
consideration fiscal and maintenance calendars and may request a meeting to coordinatethe
content of the plan. PacifiCorp will provide funding within 60 days of concurring with theWork
Plan. Adminisfative services, environmental review or permitting efforts, if necessary, to
implement actions under the funds shall not require additional PacifiCorp funding beyond the
amounts specified below.
A.PacifiCorp shall provide up to $15,000 per year to BLM towards projects
identified through the coordination process described above for the purpose of
road maintenance in the Klamath Canyon. This funding will be used to annually
maintain the access road from State Highway 66 to the J.C. Boyle Powerhouse
and terminate at the BLM Spring Island Boat Launch. Remaining funds willbe
used to do non-recurring road maintenance work on roads within the Canyon as
mutually agreed upon in writing by BLM andPacifiCorp.
B.PacifiCorp shall provide up to $10,000 per year to BLM for use by the Oregon
Department of Agriculture (ODA) towards projects identified through the
coordination process described above for the pu{pose of integrated weed
management of invasive weed species along the road system and rivercorridor
within the Klamath Canyon. Noxious weed control projects will becoordinated
with Siskiyou County to ensure that weeds are controlled along the rivercorridor
from the Oregon-California boundary to the top of Copco Reservoir.
C.PacifiCorp shall provide up to $10,000 per year to BLM towards projects
identified through the coordination process described above for the management
of the following 5 BLM cultural sites which are within, or partially within, theTl
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Exhibit No. 2Page 127 o1221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
terrace of the J.C. Boyle fulIflow reach: 35KL211786,35Y\L22,35KL24,
35KL558, and 35KL577.Managertent of additional sites with these funds can
occur with mutual written agreement between PacifiCorp andBLM.
D PacifiCorp shall provide up to, but no more than, $130,000 in funding for the
development and implementation of a Road Management Plan to beimplemented
during the Interim Period. The Road Management Plan shall be developedby
BLM and PacifiCorp and will determine priorities for operation andmaintenance,
including remediation or restoration of redundant or umecessary facilities, ofthe
shared BLIWPacifiCorp road system within the Klamath River Canyon fromJ.C.
Boyle Dam to the slack water of Copco Reservoir.
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E,hibitt'":Ey,iTf)i'"iy;;
Case No. PAC-E-2'|-01
ACTIONS IN APPENDIX E HAVE BEENCOMPLEIffPS:T|MOIhYJ. HEMShEEI
OR ARE NO LONGER APPLICABLE
APPENUX E
Elements for the Proposed Federal Legislation
f,'lements Related to the Klamath Rasin Restoration Asreement
Confirm, ratiff or approve as necessary to ensure the effectiveness of theKlamath
Basin Restoration Agreement (KBRA), including any amendments approvedby
the Parties prior to enactment. Authorize and direct the Secretary of the lnterior,
Secretary of Commerce, and the Secretary of Agriculture or their designees to
execute and implement the KBRA.
Confirm that execution of the KBRA by the Secretary of the lnterior, Secretaryof
Commerce, and the Secretary of Agriculture or their designees is not amajor
federal action for purposes of the National Environmental Policy Act,42U.S.C.
5 432I, and direct all Federal Agency Parties to comply with all applicable
environmental laws in consideration and approval of actions in implementationof
the KBRA following its execution.
Authorize Federal Agency Parties to enter into contracts, cooperative agreements,
and other agreements in implementation of the KBRA; and authorize the
acceptance and expenditure of non-federal funds or in-kind services forKBRA
implementation.
Notwithstanding any otherprovision of law, enactment of the KBRA title ofthis
legislation and implementation of KBRA will not restrict the Tribes' or other
Parties' eligibility for or receipt of funds, or be construed as an offset against any
obligations or existing funds, under any federal or state laws.
Establish in the Treasury the type and number of funds necessary for thedeposit
of appropriations and other monies, including donated funds, forimplementation
of the KBRA. Management of funds shall be in accordance with the KBRA.
Monies donated by non-federal entities for specific purposes to implementthe
KBRA shall be expended for those purposes only and shall not be subjectto
appropriation.
Authorize appropriation of such sums as are necessary to carry out theprograms,
projects, and plans of the KBRA. Costs associated with any actions taken
pursuant to this Agreement shall be non-reimbursable to Reclamation Project
contractors.
Provide that the purposes of the Klamath Reclamation Project include irrigation,
reclamation, domestic, flood control, municipal, industrial, power (as necessaryto
implement the KBRA), National Wildlife Refuge, and fish and wildlife. Nothing
in the project purposes section of the legislation shall be deemed to create awater
right or affect existing water rights or water right claims. The fish and wildlife
and National Wildlife Refuge purposes of the Klamath Reclamation Project shall
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Case No. PAC-E-21-01
ACTIONS IN APPENDIX E IIAVE BEENCOTT,PLTTfftrS:TiMOthYJ' HEMSITCEI
OR ARE NO LONGERAPPLICABLE
not adversely affect the irrigation purpose of the Project, provided thatthe
provisions regarding water allocations and delivery to the National Wildlife
Refuges agreed upon in Section 15.I.2, including any additional watermade
available under Sections 15.1.2.E.ii and 18.3.2.B.v, of the Klamath RiverBasin
Restoration Agteement are hereby deemed not to constitute an adverse effect
upon the Klamath Reclamation Project's irrigation purpose. For purposes ofthe
determination of water rights in the KBA, the purpose or pu{poses of theKlamath
Reclamation Project shall be as existed prior to the enactment of this legislation;
this provision shall be inapplicable upon the frling of Appendix E-l to theKBRA.
Provide that: notwithstanding any other provision of law, the disposition ofnet
revenues from the leasing of refuge lands within the Tule Lake NationalWildlife
Refuge and Lower Klamath National Wildlife Refuge, under section 4 ofPublic
Law 88-567, 78 Stat. 850 (Sept. 2,1964) (Kuchel Act) shall hereafter be:
Ten percent of said net revenues to Tule Lake Irrigation District, as
provided in article 4 of Contract No. 14-06 -200-5954 and section 2(a) of
the Act of August 1,1956;
Payment to Counties in lieu of taxes as provided in section 3 ofPublic
Law 88-567;
Twenty percent of said net revenues directly, without further
authorization, to the U.S. Fish and Wildlife Service, KlamathBasin
Refuges, for wildlife management purposes on the Tule LakeNational
Wildlife Refuge and Lower KlamathNational Wildlife Refuge;
Ten percent of said net revenues directly, without further authorizationto
Klamath Drainage District for operation and maintenance responsibility
for the Reclamation water delivery and drainage facilities withinthe
boundaries of both Klamath Drainage District and Lower Klamath
National Wildlife Refuge exclusive of the Klamath Straits Drain, subject
to Klamath Drainage District's assuming the U.S. Bureau of
Reclamation's Operation and Maintenance duties for Klamath Drainage
District (Area K) lease lands; and
5 The remainder shall be covered to the Reclamation fund to be applied as
follows:
(a) to operation and maintenance costs of Link River and Keno Dams;and
(b) in any year where the remainder exceeds the actual costs in (a), forthe
Renewable Power Program in Section 17.7 of the KBRA or future
capital costs of the Klamath Reclamation Project, pursuant to an
expenditure plan submitted to and approved by the Secretary.
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Case No. PAC-E-21-01
ACTIONS IN APPEI\DIX E IIAVE BEENCOMPLETTtrS:TiMOthYJ. HCMSITEEI
OR ARE NO LONGERAPPLICABLE
L As applicable for the United States and the signatoryTribes
Confirm the commitments made in the KBRA, including the Assurances in
Section 15.3 of the KBRA, and that such commitments are effective and
binding according to their terms.
Authorize the Tribes to issue the voluntary relinquishment and release of
claims against the United States as provided in Section 15.3 of theKBRA.
Establish terms limiting the effect of the commitrnents of the United States
and Tribes to only those provided in the KBRA.
Authorize and direct the Secretary to publish the notice identifiedin
KBRA Sections 15.3.4.4 or 15.3.4.C as applicable.
Provide forjudicial review ofa decision by the Secretary affecting rights or
obligations created in Sections 15.3.5.C, 15.3.6.B.iii, 15.3.7.B.iii, 15.3.8.8,and
15.3.9 under the Administrative Procedure Act, 5 U.S.C. $g 701-706.
Authorize the United States and the Klamath Tribes to enter into agreements
consistent with Section16.2 of the KBRA.
Provide that nothing in the KBRA title of the legislation shall: determineexisting
water rights, affect existing water rights beyond what is stated in the KBRA,
create any private cause ofaction, expand thejurisdiction ofstate courts toreview
federal agency actions or determine federal rights, provide any benefit to a federal
official or member of Congress, amend or affect application or implementationof
the Clean Water Act, Endangered Species Act, Federal Land ManagementPolicy
Act, Kuchel Act (Public Law 88-567), National Wildlife Refuge System
Improvement Act of 1997 (Public Law 105-57), or supersede otherwise
applicable federal law, except as expressly provided in the federal legislation.
The KBRA title of the legislation shall provide that the provisions of theKBRA
are deemed consistent with 43 U.S.C. $ 666.
Require that if the KBRA terminates, any federal funds provided to Partiesthat
are unexpended must be returned to the United States, and any federal funds
expended for the benefit of a Party shall be treated as an offset against anyclaim
for damages by such Party arising from the Agreement.
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Case No. PAC-E-21-01
ACTIONS IN APPENDIX E HAYE BEENCOMPLEfEffS:TiMOthYJ' HEMSITEEI
OR ARE NO LONGERAPPLICABLE
Elements Related to the Klamath Hvdroelectric SettlementAqreement
Authorize and direct the Secretary of the Interior (Secretary), Secretary of
Commerce, and Federal Energy Regulatory Commission (FERC) to implement
the Klamath Hydroelectric Settlement Agreement (KHSA).
Authorize and direct the Secretary to make the determination by March 31,2012
as set forth in Section 3 of the KHSA: whether facilities removal will advance
restoration of the salmonid fisheries of the Klamath Basin and is in thepublic
interest, which includes but is not limited to consideration of potential impactson
affected local communities and Tribes.
Prohibit the Secretary from making the determination set forth in Section 3 ofthe
KHSA if the conditions specified in Section3.3.4 of the KHSA have notbeen
satisfied.
Authorize and direct the Secretary if the Secretarial determination provides for
facilities removal, to designate as part of that determination a dam removal entity
(DRE) with the capabilities and responsibilities set forth in Section 7 ofthe
KHSA; the Secretary may designate either the Department of the Interior or a
non-federal entity as the DRE, consistent with the requirements of Section3.3.4.E
of theKHSA.
Direct the Secretary to publish notification of the Secretarial Determination inthe
Federal Register.
Provide jurisdiction for judicial review of the Secretarial determination in theU.S.
Court of Appeals for the 9th Circuit or the D.C. Circuit.
Authorize the DRE: to accept, expend and manage non-federal funds forfacilities
removal; to enter into appropriate agreements with the States of California and
Oregon, Tribes, other public agencies, or others to assist in implementation ofthe
KHSA; to develop a definite plan for facilities removal; to accept fromPacifiCorp
all rights, title, and other interests in the facilities upon providing notice that it is
ready to commence with facilities removal; and to perform such removal, all as
provided in Sections 4 andT of the KHSA.
Authorize and direct the DRE to seek and obtain necessary permits, certifications,
and other authorizations to implement facilities removal, including but not limited
to a permit under 33 U.S.C. $ 1344.
Provide that Facilities Removal shall be subject to applicable requirements of
State and local laws respecting permits, certifications and other authorizations, to
the extent such requirements are consistent with the Secretarial determinationand
the Definite Plan, including the schedules for Facilities Removal.
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Rocky Mountain Power
Exhibit No. 2 Pat;;:7:;itr1
ACTIONS IN APPENDIX E HAYE BEEN COMPLEryEffS:TiMOthY J' HEMSITEEI
OR ARE NO LONGER APPLICABLE
Direct the Department of the Interior or the Non-Federal DRE to enter into a
contract with PacifiCorp that provides that: upon transfer of title to thefacilities,
and until notified by the DRE to cease generation of electric power, PacifiCorp
shall continue such generation, retain title to any and all power so generatedby
the facilities, and continue to use the ou@ut for the benefit of its retail customers
under the jurisdiction of relevant state public utility commissions.
Authorize and direct the Secretary of the lnterior, upon notice that the DRE is
ready to perform removal of the J.C. Boyle development, to accept transfer ofthe
Keno Dam from PacifiCorp, to be managed as a part of the KlamathReclamation
Project, as provided in Section 3.3.4.B and Section 7.5 of the KHSA.
Provide PacifiCorp with protection from liability as follows:'Notwithstanding
any other federal, state, local law or common law, PacifiCorp shall not be liable
for any harm to persons, property, or the environment, or damages resultingfrom
either Facilities Removal or Facility operation arising from, relating to, or
triggered by actions associated with Facilities removal, including but notlimited
to any damage caused by the release of any material or substance, includingbut
not limited to hazardous substances."
Further provide: "Notwithstanding any other federal, state, local law orcommon
law, no person or entity contributing funds for facilities removal pursuant tothe
KHSA shall be held liable, solely by virtue of that funding, for any harmto
persons, property, or the environment, or damages arising from either facilities
removal or facility operation arising from, relating to, or triggered byactions
associated with facilities removal, including any damage caused by the releaseof
any material or substance, including hazardous substances."
Further provide that: 'Notwithstanding Section 10(c) of the Federal PowerAct,
this protection from liability preempts the laws of any State to the extent such
laws are inconsistent with this Act, except that this Act shall not be construedto
limit any otherwise available immunity, privilege, or defense under anyother
provision of law."
Fur*rer provide that the liability protections in Paragraphs L through N, above,
shall take effect as they relate to any particular facility only upon transfer oftitle
to that facility from PacifiCorp to the DRE.
Direct FERC to issue annual licenses authorizing PacifiCorp to continue to
operate Project No. 2082 until PacifiCorp hansfers title to the DRE, andprovide
that FERC's jurisdiction under the Federal Power Act shall terminate withrespect
to a given facility upon PacifiCorp's transfer of title for such facility to theDRE;
if the facilities are removed in a staged manner, annual FERC licenseconditions
applyng to the facility being removed shall no longer be in effect, andPacifiCorp
shall continue to comply with license conditions pertaining to any facility stillin
E-5
K.
L.
M.
N
o
P
on,oot"":?Y.iTill'"itrI
Case No. PAC-E-21-01
ACTIONS IN APPENDX E IIAYE BEENCOMPLETTDS:TiMOthYJ' HCMSITEEI
OR ARE NO LONGERAPPLICABLE
place to the extent such compliance is not prevented by the removal of anyother
facility.
a Direct FERC to stay its proceeding on PacifiCorp's pending licenseapplication
for Project No. 2082 as long as the KHSA remains in effect, and resume such
proceeding, and take final action on the license application, only if theI(HSA
terminates; except that FERC will resume timely consideration of thepending
FERC license application for the Fall Creek development within 60 days ofthe
transfer of the Iron Gate Facility to the DRE.
R.Provide that if the KHSA terminates, the Secretarial Determination andfindings
of fact shall not be admissible or otherwise relied upon in FERC's proceedingson
the license application.
S Provide that on PacifiCorp's filing of an application for surrender of theEastside
and Westside developments of Project No. 2082 pursuant to Section 6.4.1 ofthe
KHSA, FERC shall issue an appropriate order regarding partial surrender ofthe
license specific to the Eastside and Westside developments, includirrg any
reasonable and appropriate conditions.
T Provide that nothing in the KHSA title of the legislation shall: modiffexisting
water rights; affect the rights of any Tribe; or supersede otherwise applicable
federal law, except as expressly provided in the legislation.
E-6
Rocky Mountain Power
Exhibit No. 2 Page 134 ot 221
Case No. PAC-E-21-01
Witness: Timothy J. Hemstreet
APPENDIX F
Oregon Surcharge Act (as codified)
757.732 Definitions for ORS 757.732 to757.744.
As used in ORS 7 57 .732 to 7 57.7 44:
(1) "Agreement in principle" means the agreement signed November 13, 2008, by the states of
Oregon and California, by the United States Deparhnent of the lnterior and byPacifiCorp.
(2) "Allocated share" means the portion of PacifiCorp's costs assigned to this state underthe
interjurisdictional cost allocation methodology used by the Public Utility Commission forthe
purpose of establishing rates for PacifiCorp.
(3) "Customers" means the Oregon retail electricity customers of PacifiCorp.
(4) "Final agreement" means a successor agreement to the agteement inprinciple.
(5) "Klamath River dam" means the J.C. Boyle Dam located in Oregon, the Copco I Dam
located in California, the Copco 2 Dam located in Califomia or the Iron Gate Dam locatedin
California. 12009 c.690 $21
757.734 Recovery of investment in Klamath Riverdams.
(l) Not more than six months after the execution of a final agreement, the Public Utility
Commission shall determine a depreciation schedule under ORS 757.140 for each KlamathRiver
dam based on the assumption that the dam will be removed in2020. The commission may
change a depreciation schedule determined under this section at any time if removal of a dam
will occur during ayear other than 2020.
(2) The commission shall use the depreciation schedules prepared under this section to establish
rates and tariffs for the recovery of Oregon's allocated share of undepreciated amountsprudently
invested by PacifiCorp in a Klamath River dam. Amounts recoverable under this sectioninclude,
but are not limited to:
(a) Retum of investment and return on investment;
(b) Capital improvements required by the United States or any state for continuedoperation
of the dam until dam removal;
(c) Amounts spent by PacifiCorp in seeking relicensing of the dam before July 14, 2009;
(d) Amounts spent by PacifiCorp for settlement of the issues of relicensing or removal ofthe
dam; and
(e) Amounts spent by PacifiCorp for the decommissioning of the dam in anticipation ofthe
dam's removal.
(3) If any amount specified under subsection (2) of this section has not been recovered by
PacifiCorp before a dam is removed, the Public Utility Commission shall allow recovery ofthat
amount by PacifiCorp in PacifiCorp's rates and tariffs. The commission shall allow therecovery
without anamortization schedule if the impact of the recovery does not exceed one-half ofone
percent of PacifiCorp's annual revenue requirement. If the impact exceeds one-half ofone
percent of PacifiCorp's annual revenue requirement, the commission may establish an
amortization schedule that limits the annual impact to one-half of one percent ofPacifiCorp's
annual revenue requirement.12009 c.690 $3]
F-1
Rocky Mountain Power
Exhibit No. 2 Page 135 ol 221
Case No. PAC-E-21-01
Vvitness: Timothy J. Hemstreet
757J36 Surcharges for funding costs of removing Klamath River dams; judicial review.
(1) Not more than 30 days after the execution of a final agreement, PacifiCorp must file a copy
of the final agreement with the Public Utility Commission along with fuIl and complete copiesof
all analyses or studies that relate to the rate-related costs, benefits and risks for customers of
removing or relicensing Klamath River dams and that were reviewed by PacifiCorp duringthe
decision-making process that led to PacifiCorp's entering into the final agreement.
(2) PacifiCorp must include with the filing made under subsection (1) of this section tariffsfor
the collection of two nonblpassable surcharges from its customers for the purpose of payingthe
costs of removing Klamath River dams as described in subsection (11) of this section.
Notwithstanding the commission's findings and conclusions under subsection (4) of thissection,
the commission shall require PacifiCorp to begin collecting the surcharges on the date thatthe
filing is made under subsection (l) of this section, or on January 1,2010, whichever is later, and
PacifiCorp shall continue to collect the surcharges pending a final decision on thecommission's
order under subsection (4) of this section. The surcharges imposed under this section shallbe:
(a) A surcharge for the costs of removing the J.C. Boyle Dam; and
(b) A surcharge for the costs of removing the Copco 1 Dam, the Copco 2Dam and thelron
Gate Dam.
(3) The surcharges imposed under this section may not exceed the amounts necessary to fund
Oregon's share of the customer contribution of $200 million identified in the agreement in
principle. ln addition, the total amount collected in a calendar year under both surcharges may
not exceed more than two percent of PacifiCorp's annual revenue requirement as determined in
PacifiCorp's last case under ORS 757.210 decided by the commission before January 1,2010.
(4) Not more than six months after a filing is made under subsection (l) of this section, the
commission shall conduct a hearing under ORS 757.210 on the surcharges imposed underthis
section, and shall enter an order setting forth findings and conclusions as to whether the
imposition of surcharges under the terms of the final agreement results in rates that are fair,just
and reasonable.
(5) Notwithstanding ORS 183.482 (1), jurisdiction for judicial review of any appeal of anorder
entered under subsection (4) of this section is conferred on the Supreme Court, and aperson
seeking judicial review of the order must file a petition for review with the Supreme Court inthe
manner provided by ORS 183 .482. ORS 1 83.482 (3) does not apply to an order entered under
subsection (4) of this section. If a petition for review is filed, the surcharges imposed underthe
terms of the final agreement shall remain in effect pending a final decision on the petition, but
shall be refunded if the rates resulting from the surcharges are finally determined not to befair,
just and reasonable. A petition filed under this subsection must indicate on its face that the
petition is filed pursuant to this subsection.
(6) The commission may not use any commercially sensitive information provided to the
commission in a filing made under subsection (1) of this section for any purpose otherthan
determining whether the imposition of surcharges under the terms of the final agreementresults
in rates that are fair, just and reasonable. Notwithstanding ORS 192.410 to 192.505, the
commission may not release commercially sensitive information provided to thecommission
under this section, and shall require any person participating in a proceeding relating to the
F-2
Rocky Mountain Power
Exhibit No. 2 Page 136 of 221
Case No. PAC-E-2t-01
Witness: Timothy J. Hemstreet
surcharge to sign a protective order prepared by the commission before allowing theparticipant
to obtain and use the information.
(7) The surcharges imposed under this section must be of a specified amount per kilowatthour
billed to retail customers, as determined by the commission. The amount of each surchargeshall
be calculated based on a collection schedule that will fund, by December 3l,2llg,Oregon's
share of the customer contribution of $200 million identified in the agteement in principle. To
the extent practicable, the commission shall set the surcharges so that total annual collections of
the surcharges remain approximately the same during the collection period, and, when settingthe
rate for the surcharges, the commission shall account for the actual and expected changes in
energy usage over the collection period and account for the actual and expected changes in
interest rates on the collected funds over the collection period. The commission may changethe
collection schedule if a Klamath River dam will be removed during ayear other than2020.
(8) Except as provided in ORS 757.738 (2), all amounts collected under the surchargesimposed
under this section shall be paid into the appropriate trust account established under ORS 757.738.
(9) If the commission determines at any time that amounts have been collected under thissection
in excess of those needed, or in excess of those allowed, the commission must:
(a) Direct the trustee of the appropriate trust account under ORS 757.738 to refundthese
excess amounts to customers or to otherwise use these amounts for the benefit ofcustomers;
or
(b) Adjust future surcharge amounts as necessary to offset the excess amounts.
(10) If one or more Klamath River dams will not be removed, the commission shall direct
PacifiCorp to terminate collection of all or part of the surcharges imposed under this section.ln
addition, the commission shall direct the trustee of the appropriate trust account under ORS
757.738 to apply any excess balances in the accounts to Oregon's allocated share ofprudently
incurred costs to implement Federal Energy Regulatory Commission relicensing requirements.If
any excess amounts remain in the trust accounts after that application, the Public Utility
Commission shall order that the excess amounts be refunded to customers or otherwise beused
for the benefit of customers in accordance with Public Utility Commission rules andpolicies.
(1 1) For the purposes of subsection (2) of this section, "the costs of removing Klamath River
dams" includes costs of:
(a) Physical removal of the dams;
(b) Site remediation and restoration;
(c) Avoiding downstream impacts of dam removal;
(d) Downstream impacts of dam removal;
(e) Permits that are required for the removal;
(f) Removal and disposal of sediment, debris and other materials, if necessary; and
(g) Compliance with environmental laws. 12009 c.690 $4; 2011 c.394 $11
757.738 Surcharge trust accounts related to removal of Klamath River dams.
(lXa) The Public Utility Commission shall establish a separate trust account foramounts
generated by each of the two surcharges imposed under ORS 757.736. The commissionshall
establish the trust accounts as interest-bearing accounts:
(A) With an agency of the United States identified in the final agreement;
F-3
Rocky Mountain Power
Exhibit No. 2 Page 137 ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
(B) ln a depository that is qualified under ORS 295.001 to 295.108 to receivepublic
funds;or
(C) With the State Treasurer, to be invested as provided in ORS 293.701 to293.857.
(b) The commission may establish each of the two trust accounts with a differenttrustee
among those listed in paragraph (a) of this subsection.
(c) The commission may authorize transfer of funds from one tust account to anotheras
necessary to fund removal of the Klamath River dams.
(2) If an agreement is entered into under ORS 757.742 (2),the parties to the agreementmay
agree that a portion of the amounts collected under one surcharge may be deposited in thetrust
account established for amounts collected under the other surcharge.
(3) Upon request of an agency of the United States, or upon request of the designee of an agency
of the United States, the commission shall require the trustee of the appropriate trust account
established under this section to transfer to the agency or designee the amounts that arenecessary
to pay the costs of removing the Klamath River dams as described in ORS 757.136 (ll).
(4) If any amounts remain in a trust account established under this section after the trusteemakes
all payments necessary for the costs of removing the Klamath River dams as described inORS
757.736 (11), the commission shall direct the trustee of the account to refund those amountsto
customers or to otherwise use the excess amounts for the benefit of customers. [2009 c.690 $5;
20rt c.394 $21
757,740 Recovery of other costs incurred as result of changes in operation to or removal of
Klamath River dams.
Pursuant to ORS 757.210, the Public Utility Commission shall allow PacifiCorp to include inits
rates and tariffs this state's allocated share of any costs that are prudently incurred byPacifiCorp
from changes in operation of Klamath River dams before removal of the dams, or that are
prudently incurred for replacement power after the dams are removed, that are not otherwise
recovered under ORS 757.734 ard757.736.12009 c.690 $61
757.742 Public Utility Commission authorization to enter agreement with California
related to cost apportionment and trust fund.
(1) The State of Oregon may enter into an agreement with representatives of the Stateof
California, either as part of a final agreement or by separate agreement, that establisheseach
state's share of the customer contribution of $200 million identified in the agreement in
principle.
(2) The Public Utility Commission may enter into an agreement with representatives of theState
of California to establish and administer the trust accounts authorized under ORS 757.738 andto
ensure that trust account moneys are disbursed for dam removal costs that are necessary and
appropriate. [2009 c.690 $7]
757.744 Disclaimers.
( 1) ORS 7 57 .732 to 7 57 .7 44 do not authorize the expenditure of any public moneys for removal
of Klamath River dams.
F-4
Rocky Mountain Power
Exhibit No. 2Page 138 of 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
(2) ORS 757.732to757.744donotcreateacauseof actionagainsttheStateof Oregonor
against any of the officers, employees or agents of the state and may not be used as the basisfor
an assertion of liability on the part of the State of Oregon or of any officers, employees oragents
of the state. [2009 c.690 $8]
F-5
Rocky Mountain Power
Exhibit No. 2 Page 139 ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
APPENDIX G.l
Water Bond Language (California)
CALIFORNIA BOND FI.INDING APPROVED THROUGH VOTER APPROVAL OFTHE
WATER QUALITY, SUPPLY, AND INFRASTRUCTURE IMPROVEMENT ACT OF2OI4
(PROPOSTTTON 1) rN NOVEMBER2014.
G-1
E,hibittTgy"iTniiw
Case No. PAC-E-2'|-01
ACTIONS IN APPENDIX G-2 HAYE BEEN COMPL#TT'fD TiMOthY J. HEMSITEEI
OR ARE NO LONGERAPPLICABLE
AEENDI!@
CEQA Legislation Language (California)
Uncodified Statute
Application of Division 13 of the Public Resources Code to activities and approvals relatedto
the Klamath Basin, as more particularly described in two agreements between the United States,
the State of California, the State of Oregon and other Klamath Basin Stakeholders, shall be
limited as follows:
(a) The following activities related to restoration of the Klamath Basin are not a "project"as
defined in Public Resources Code section 21065:
(1) Execution of the Klamath Hydroelectric Settlement Agreement;
(2) Execution of the Klamath Basin Restoration Agreement;
(3) A request to the California Public Utilities Commission to establish a surcharge to fund
dam removal activities pursuant to the Klamath Hydroelectric Settlement Agreement, orthe
Califomia Public Utilities Commission's action on such request.
(b) Division 13 of the Public Resources Code shall apply to the decision of whether toconcur
with the determination by the United States to remove any or all of the dams described inthe
Klamath Hydroelectric Settlement Agreement, whether to approve any projects that areproposed
for approval pursuant to such determination and whether to approve any projects that are
proposed pursuant to the Klamath Basin Restoration Agreement after its execution.
Environmental review prepared pursuant to this subdivision shall focus on the issues that areripe
for decision at the time of the concurrence and/or proposal, and from which laterenvironmental
review may tier. The Department of Fish and Game may be the lead agency for the
environmental review of the decision of whether to concur in the determination by theUnited
States described in this subdivision.
G-l
Rocky Mountain Power
Exhibit No. 2 Page 14'l ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
APPENDIXII
Calculation of Initial Customer Surcharge Target
H-1
APPENDD( H
ffi
AnnudSp.rdffi
AmdSmhrlp
ln6ll
SudEgD Coil.ctcd Jdl2 - Orc2O
lnlmstRa.
Ionthly lnt r.rtEdlmrlor
Aftarrttdna umptlom,
MonhlySpad
0.00%
o.42fi
0.83%
Anrud
AnruC
Cch OutiwlG12Clh Orriil11l6
Csh Outiil17-19
AnnuCcdlrdiil
colhcLdJ.nlo-Jm12 $ 17200$ 17,4'0ffi8ffi
ArsDr{9oriOrm 3hrdad c.[a ddrr.bL amPdm tcrAmurl lntapt r.L rnd
CdLciidclrel( lril{attohcl(Bdhninq Balan€clholrdldv lntr.rtEmd EndinsBd.mY.r cshldlw
1,4331,18
1,433
l,/fi!3
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147
193
1to
XA
210
216u27
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2C024
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261
2t7
273
27824
2CO
295
301
306
c12
318
38
329
33t
3/O
345
351
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368
373
379
384
390
395
4014(r
112
J-10F-to
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A-10
M-to
,t'r0
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$10ot0
t+to
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F-11
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i/L'tl
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$11G'tlt+fiDll.t12
F-12
tf.12
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n12
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$12or2
tc12
c;.12
J-13
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M-13
A-13
i/L13
J-13
J-13
A"'t3913
o13
it-13
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F-14
itr14
t*11
M-l.l
..1-14
J-'14
4".t4
$'14
Gt4
tt1/t
D'14
J-15
F-'t5
M-15
A"15
M-l5
J-i5
.J-15
A-15
$15o'r5
1+.15
1,435
2,475
,1,3'19
5,767
7,21E
8,6?6
10,136
11,60r
t3,07t11,*
1G,W)17,s
r8,991
20,41
21,971
23,176
24,94O
26,48E
2E,ml
29,51831,ilo
32,568
3rt,096
35,Gr1
?7,'170
36,714
10,262
41,815
43,373A,g
46,313
47,@1,10,G8
50,{40
51,812
54,s5r
55,918
s7,283
58,647
60,008
61,36E
62,727
6/t,(Blt
05,/tsE6,74
68,1.13
69,.t93
70,41
72,147
73,532
71,C75
76,2177t,ffi
78,E94
80,231
E1,565
62,t98u,2n
E5,559
86,887
88,213
89,538
90,861
92,142
93,502
94,E20
96,136
97,151
9A,7U
53,182
2
6tot5
t9
23
27
32
36
10
45
{9
53
57gz
66
71
75
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8a
93
97
102.
105
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120
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137
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173
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200
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212
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2A
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239
213
217
251
255
259
263
267
270
271
278
2U2
286
290
lllustratw Enmpl6
27 May2009
Rod<y Mountaln Porer
Exhibit No. 2 Page 142 ot ?21
Case No. PAC-E-21-01
lMtne'ss: Timothy J. Hemstreet
r,435
2,A75
/t,319
5,767
7,219
6,678
10,138
'11,601
't3,071
11,94
B,q2i2
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16,991N,81
21,577
23,q4
2/r,e80
2G.,&
28,001
29,518
31,040
32,566
34,@6
36,C0r
37,170
u,7114,ftz
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46,313
17,691
a9,G6
50,{/t0
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53,13'l
54,551
55,91til,24
5t,0a7
60,000
81,t68
62,727
6{,6s
65,l(r8
66,712
6E,143
e0,$3
70 t'11
72,1E?
73,532
u,475
76.217
2,356
78,t94
E0,231
81,585
82,8e8
8/f,230
t9,659
66,887
88,213
89,538
90,861
92,1U
93,502
9,t,820
96,136
s7,151
98,764
100,075
$ 17,200 $304
$ 17,200 $427
$ 17,200 $ 1,561
$ 17,200 $ 2,19i2
$ 17,200 $ 2,710
I,-15
.J-16
F-16
$
$
$
1{ro,o75
101,385
102,693
'tu,o00
1(E,30/t
1G,608
107,909
109,209
110,507
11t,to,t
113,090
I l/t,392
I 15,66.t
fi6,974
117,7f1
ttE,570
119,352
r20,150
120,933
121,71212.,M
123,257
121,O23
121,7A5
125,5/t3
12s,207
127,U7
127,7e3
128,5U
129,272
130,005
130,735
131,461
132,183
t32,9oO
13i!,614
13,,921
135,031
135,733
136,431
137,18
137,417
138,50.1
139,188
139,t68140,9
111,216
141,6E5
l/12,550
1,43i!
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1,125
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293
297
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309
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335
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351
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356
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365
87
369
371
373
375
37E
380w
344
386
38E
390an
39/t
336
398
ttoo
1q2
/404
4G
408
410
112
111/fi6
t tor,tES
'r@,593
104,(xl0
't05,3(x
105,606
r07,909
to0,2o0
fi0,507
,11,804
113,099
1l/t 392
1t5,6E4
110,97.t
117,771
118,570
11q362
't20,150
120,9&r
121,712
12.,&'
123257
124,@3
121,785
125,543
1?i2A7
127,U7
127,793
128,5&t
129272
130,005
't30,7!t5
131,461
13e183
132,t00
r33,ot4
l3.,,41t8q@t
135,73:t
136,431
137,126
137,A17
't38,5o/l
13e,18E
130,8681$,*
't1'1,216
1r11,885
1.t2,550
1,B.212
$ r7,2OO $ 3,267
M-16 $
A-18 $
M-16 $
J-16
,!16
A"r6st6
Gt6
1$16Dl5
.h17
F-17
iit-l7
r",17
tlF17
J-17
J-17
A-17
s-17
Gl7
t$'r7
E;.17
J.IE
F.IE
irl-18
4.16
t/L18
J-1E
J-18
A"1E
918
$ t7.2oo $ 3.816
$ t7,2OO $ 4,253
o18 $
Itl-18 $rlE
J-19
F-10
irL19
4.19
iI-19
J-19
J-19
4.19
919ot9
t919r19
$ r7,2OO $ 4,568
$ l7,zn $ 4,E04
ItrY..rTot.lr EIE@IE]T@UtrlEil
APPENDX H
Rocfty Mountain Poruer
Exhiblt No. zPage 113 o1221
Case No. PAC-E-2l-01
Wtness: Timothy J. Hemstreet
lllustEtiw Eremple
27 May 2009
Rocky Mountain Power
Exhibit No. 2 Pa t; ;#:NZi
ACTIONS IN APPENDX I HAVE BEEN COMPLEfff]ffS: TiMOthY J' HEMSITCCI
OR ARE NO LONGERAPPLICABLE
APPENDIX I
Study Process Guidelines
In providing the information to support the Secretarial Determination as set forth fullyin
Section 3 of the Settlement, the federal team will address three decisions to be made bythe
Secretary:
Whether Facilities Removal can be completed within the State Cost Cap or anamount
otherwise agreed to by the Parties,
The "Secretarial Determination" of whether Facilities Removal will benefit thefisheries
and will otherwise be in the public interest, and
Whether lnterior will be the Dam Removal Entity in the event of anAffrmative
Determination.
Overall, the supporting analyses will, at a minimum, address thefollowing:
o A cost estimate of Facilities Removal;
o Identification and management of risks and of foreseeable liabilities associatedwith
Facilities Removal;
o The environmental effects of Facilities Removal;
o The impacts on local and Tribal communities; and
o An economic analysis.
This Appendix outlines the approach to complete the analyses needed to supportthe
Secretarial Determination. The key discipline areas that need study and analysis forthe
Secretarial Determination fall into six categories, including:
Engineering
Sediment Composition, Fate and Transport
Water Quality
Fisheries
Economics
. Liability and Risk Management
The study efforts will concentrate on these areas. However, if other key disciplinesare
identified in the process, they will be included. The Parties recognize that other studies and
analyses are established in the existing record. The non-federal Parties agree to collaborateand
provide recommendations for prioritized activities related to the Secretarial Determinationfor
each of the six categories and shall communicate through the Technical CoordinationCommittee
(TCC). See Appendix A. Such recommendations will include developing key questionsor
I-l
a
a
a
a
a
Rocky Mountain Power
Exhibit No. 2 Pa t; ;:i:;ia1
ACTIONS IN APPENDIX I HAVE BEEN COMPLETED OR Adff!TM[T'NE{ff't'.""1
APPLICABLE
objectives for the Secretarial Determination in order to provide context for the near-termpriority
studies and analyses. However, final decisions on studies and analyses remain at theSecretary's
discretion.
t-2
E,h i b *lTY y.iTile :ilfl
Case No. PAC-E-21-01
ACTIONS IN APPENDX J HAVE BEEN COMPLEtffffS: TiMOthY J. HEMSITEEI
OR ARE NO LONGER APPLICABLE
APPENDIX J
Science Process
1. Introduction
The federal team agrees to an open and transparent science process for the 2012 Secretarial
Determination and continuing through the subsequent phases, if there are any, leading upto
Facilities Removal in the event of an Affirmative Determination. The goal of this science process
is to provide for transparency and integrity in the preparation, identification, and use of scientiflc
and technological information that supports the actions and decisions arising from the Settlement.
2. Description of Science in Settlement
For purposes of the Settlement,
Science Process means the essential technical studies undertaken that will supportthe
Secretarial Determination and that will continue through subsequent phases up to Facilities
Removal. Consistent with well-established scientific standards, the process shall seek tomake
reasonable, objective, accurate, technically appropriate use ofdata and analyses, including
existing work, and not advocate or otherwise limit the analyses and conclusions of the studiesto
fit a predetermined outcome. The studies developed or used or the process used to review
existing studies will be conducted in accordance with Memorandum on Scientific Integrity
affached herein.
Sufficiency of Science means that all new studies and analyses undertaken, or any
existing data sets or studies relied upon in whole or in part, shall be of high technicalquality,
scientifically defensible, and of sufficient depth and scope to support fully informeddecision-
making by the Secretary.
3. Application
The Secretary of the Interior will determine whether Facilities Removal should proceed.
Elements ofthe science process to be established to support the Secretarial Determination
are described in the Coordination Process for the Studies Supporting the Secretarial
Determination (Appendk A) and the peer review process outlined below. The Secretary and the
federal team will also seek public input during the Secretarial Determination process.
For the Secretarial Determination there may be opportunities to include findings and
raw data from previous studies conducted in the Klamath Basin that could reduce, minimize, or
even eliminate the need for new data collection and studies. The federal team will coordinate with
the Parties, through the TCC, to identify those important previous studies, current data gaps,
and work plans as outlined in Section 1.A of AppendixA.
J-l
Rocky Mountain Power
Exhibit No. 2 Pa t; ;::r:N31
ACTIONS IN APPENDIX J IIAYE BEEN COTWT,TTffffS:TiMOthYJ' HEMSITCEI
OR ARE NO LONGERAPPLICABLE
4. Peer Review Process
The federal parties will consider input from the Parties, through the TCC, and from the public
regarding which studies should be peer reviewed. At the discretion of the Secretary, reports and
data sets with the potential of having a major effect on the Secretarial Determination will be peer
reviewed by subject-matter experts.
J-2
Rocky Mountain Power
Exhibit No. 2Page 148 ol 221
Case No. PAC-E-21-01
VMtness: Timothy J. Hemstreet
APPENDIX K
List of Authorized Representatives
For PacifiCorp:
Sarah E. Kamman
Vice President & General Counsel
PacifiCorp dlb I a P acifrc Power
825 NE Multnomah Street, Suite 2000
Portland, Oregon 97232
Tel: [phone]
sarah. kamm an@p acifrcorp. com
For United States Department of the Interior:
Sally Jewell
Secretary of the Interior
Deparbnent of the Interior
1849 C Street, NW
Washington,Dc 20240
For United States Department of Commerce's National Marine Fisheries Service:
William W. Stelle, Jr.
Regional Administrator
NOAA Fisheries West CoastRegion
U. S. Deparhnent of Commerce
7600 Sand Point WayNE, Seattle, WA 98115
Tel: [phone]
[e-mail]
For Oregon Department of Environmental Quality:
Chris Stine
Oregon Department of Environmental Quality
165 E. 7ft Avenue, Suite 100
Eugene, OR 97401
Tel: [phone]
chris. stine@state. or.us
K-1
Rocky Mountain Power
Exhibit No. zPage 149 ot 22'l
Case No. PAC-E-21-01
Wtness: Timothy J. Hemsheet
For Oregon Department of Fish and Wildlife:
Ken Homolka
Oregon Department of Fish andWildlife
4034 Fairview lndustrial Drive SE
Salem, Or,97302
Tel: [phone]
Ken. Homolka@state. or.us
For Oregon Water Resources Department:
Dwight French
Oregon Water Resources Department
725 Summer St NE, Suite A
Salem, OR 97301
Tel: [phone]
Dwight.W.French@wrd. state.or.us
For California Department of Fish and Witdlife:
ChuckBonham
Director
CA Departrnent of Fish & Game
1416 Ninth Street
Sacramento, CA 95814
[e-mail]
For California Natural Resources Agency:
TomGibson
Deputy Secretary and General Counsel
Natural Resources Agency
l4l6 Ninth Street, Ste. 1311
Sacramento, CA 95814
Tel: [phone]
Thomas. gibson@resources. ca. gov
For Karuk Tribe:
Russell Attebery
Chairman
Karuk Tribe
PO Box 1016
Happy Camp, CA 96039
Tel: [phone]
[e-mail]
K-2
Rocky Mountain Power
Exhibit No. 2 Page 150 ot 221
Case No. PAC-E-21-01
Vvitness: Timothy J. Hemstreet
For Klamath Tribes:
Chairman
The KlamathTribes
Box 436
501 Chiloquin Blvd.
Chiloquin, OR 97624
Tel: [phone]
For Yurok Tribe:
Chairman
YurokTribe
190 Klamath Boulevard
Klamath, CA 95548
Tel: [phone]
For llumboldt County, California:
Mark Lovelace
Humboldt County Board of Supervisors
825 5th Street, Room 111
Eureka, CA 95501
Mark. [e-mail]
For Trout Unlimited:
Chris Wood
CEO
1808B 5th Street
Berkeley, CA947l0
Tel: [phone]
For California Trout:
Curtis Knight
Executive Director
California Trout
701 S. Mt. Shasta Blvd.
Mt. Shasta, CA 96067
Tel: [phone]
[e-mail]
K-3
Rocky Mountain Power
Exhibit No. 2Page 151 of 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
For American Rivers:
Steve Rothert
Director, California Regional Office
AmericanRivers
120 Union St.
Nevada City, CA 95959
Tel: [phone]
Fax: [phone]
srothert@amrivers. org
For Pacific Coast Federation of Fishermen'sAssociations:
Glen H. Spain
Northwest Regional Director
Pacific Coast Federation of Fishermen's Associations
P.O. Box 11170
Eugene, OR 97740-3370
Tel: [phone]
Email: frshl [e-mail]
For Northern California Council, Federation of FlyFishers:
LowellAshbaugh
Vice President, Conservation
677 Equador Place
Davis, CA 95616
(s30)758-6722
ashbaugh. lowell@gmail. com
Salmon River Restoration Council:
PeteyBrucker
Salmon River Restoration Council
Salmon River Watershed Center, PO Box 1089,
Sawyers Bar, CA 96027
s30-462-466s
peteybrucker@ gmail. com
K-4
Rocky Mountain Power
Exhibit No. 2Page 152 o1221
Case No. PAC-E-21-01
Vvitness: Timothy J. Hemstreet
For Instifute for Fisheries Resources:
Glen H. Spain
Northwest Regional Director
Institute for Fisheries Resources
P.O. Box 11170
Eugene, OR 97740-3370
Tel: [phone]
Email: [e-mail]
For Sustainable Northwest
Mike Gerel
Director of Programs/TVater Program Director
812 SW Washington, Suite 700
Portland, OR 97205
503-221-6911 ext. 106
mgerel @ sustainabl enorthwest. org
For Upper Klamath Water Users Association:
Matthew Waltet President
Upper Klamath Water Users Association
1 8 1 50 Sprague River Road
Chiloquin, OR97624
541-28r-6827
[e-mail]
For Tulelake Irrigation District:
Brad Kirby, Manager
P.O. Box 699
Tulelake, CA96l34
Tel: [phone]
[e-mail]
For Klamath Irrigation District:
Brent Cheyne, President
6640 K.LD. Lane
Klamath Falls, OR 97603
Tel: [phone]
[e-mail]
K-5
Rocky Mountain Power
Exhibit No. 2Page 153 ot 22'l
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
For Klamath Drainage District:
Mary Cheyne, Secretary
270H Main Street/P.O. Box 1090
Klamath Falls, OR 97601
Tel: [phone]
[e-mail]
For Klamath Basin Improvement District:
Cindy Cherry, Secretary
6640 K.I.D. Lane
Klamath Falls, OR 97603
Tel: [phone]
[e-mail]
For Ady District Improvement Company:
Jason Flowers
P.O. Box 224
Midland, OR 97634
Tel: [phone]
[e-mail]
SodmanTT @hotnnail. com
For Enterprise Irrigation District:
Shane McDonald, Manager
3939 South 6ft Street,#325
Klamath Falls, OR 97603
Tel: [phone]
[e-mail]
For Malin Irrigation District:
Luke Robinson
P.O. Box 355
Malin, OR97632
Tel: [phone]
shastaviewirri gation@hotrnail. com
K-6
Rocky Mountain Power
Exhibit No. 2 Page 154 ol 221
Case No. PAC-E-21-01
lAtltness: Timothy J. Hemstreet
For Midland District Improvement Company:
Joe Frost, Manager
P.O. Box 64
Midland, OR 97634
Tel: [phone]
[e-mail]
For Pioneer District Improvement Company:
Lynette Ward
11821 Hwy66
Klamath Falls, OR 97601-9082
Tel: [phone]
[e-mail]
For Shasta View Irrigation District:
Luke Robinson, Manager
Shasta View Irrigation Distict
P.O. Box 46
Malin, OR 97632
Tel: [phone]
chagerty @centurytel. net
K-7
Rocky Mountain Power
Exhibit No. 2 Page 155 ol 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
For Sunnyside Irrigation District:
Dean Hill, Secretary
P.O. Box 544
Merrill, OR 97633
Tel: [phone]
For Don Johnston & Son:
Donald Scott Johnston
13619 Hwy 66
Klamath Falls, OR 97601
Tel: [phone]
For Bradley S. Luscombe:
Brad Luscombe
16622 Lower Klamath Lake Road
Tulelake, CA96l34
Tel: [phone]
For Randolph Walthall and Jane Walthall as trustees under declaration of trustdated
November 28,1995:
Darel E. Pierce
P.O. Box 534
Placerville, C495667
(s30) 622-3142
[e-mail]
For Inter-County Properties Co., which acquired title as Inter-County TitleCo.:
Darrel E. Pierce
P.O. Box 534
Placerville, CA95667
(s30) 622-3t42
[e-mail]
For Reames Golf and Country Club:
Laine Wortrnan, General Manager
4201 Highway 97 South
Klamath Falls, OR 97603
Tel: [phone]
[e-mail]
K-8
Rocky Mountain Power
Exhibit No. 2Page 156 of 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
For Winema Hunting Lodge,Inc.:
R. David Bolls,III
43445 Business Park Drive, Suite 103
Temecula, CA92590
Tel: [phone] ext. 450
dbolls@outdoorchannel. com
For Van Brimmer Ditch Company:
Gary Orem, Manager
620 Main Street
Klamath Falls, OR 97601
Tel: [phone]
[e-mail]
For Collins Products, LLC:
Steve Metz
P.O. Box 16
Klamath Falls, OR 97601
Tel: [phone]
[e-mail]
For Plevna District Improvement Company:
Steve Metz
P.O. Box 16
Klamath Falls, OR 97601
Tel: [phone]
[e-mail]
For Klamath Water Users Association:
Brad Kirby, President
2455 Patterson Street, Suite 3
Klamath Falls, OR 97603
Tel: [phone]
[e-mail]
K-9
Rocky Mountain Pofler
Exhiblt No. 2Page 157 ot 221
Caee No. PAC-E-21-01
\Mtness: Tlmothy J. Hemsfeet
For Klamath Water and PowerAgencY:
Hollie Cannon, Executive Director
2455 Patterson Street, Suite 3
Klamath Falls, OR 97603
Tel: [phone]
hcannon54 I @charter.net
\ilestside Improvement Disftict #4:
Steve Kandra, President
c/o Tulelake Lrigation Distict
P.O. Box 699
Tulelake, CA96l34
Tel: [phone]
snkaadra@fi reserve.net
K,l0
Rocky Mountain Power
Exhibit No. 2 Page 158 ot 221
Case No. PAC-E-21-01
Witness: Timothy J. Hemstreet
APPENDIX L
DRE and Contractor Qualifications, Insurance, Bonding, and RiskMitigation
Requirements
Part I: Contractor 0ualilications
The DRE agrees to conduct a competitive procurement process, including price and
qualifications, to select a contractor(s) to perform Facilities Removal and to providerisk
mitigation as described below. The DRE further agrees that a contractor(s) must meetthe
following minimum qualifications:
1. Past performance in performing similar projects in scope, magnitude (complexityand
size, such as but not limited to performance of work at multiple locations at the same
time), and tlpe (water way work; environmentally regulated);
2. Sufficient financial strength, including basic financial metrics such as corporate networth
and profitability;
3. Experience with federally-regulated permitting processes; and
4. Longevity in industry
Eartlilnssrirca
The DRE agrees to follow, or to contract with a contractor(s) that will follow, theconsolidated
insurance program ("CIP") approach so the DRE, or the contractor(s) that it contracts with, will
purchase the General Liability insurance and Worker's Compensation insurance for all the
contractors involved in Facilities Removal. The DRE further agrees that it will obtainthe
support of a nationally established insurance advisor to assist with the design and
implementation of the insurance program, and that as part of its best value evaluation and
procurement of a contracto(s) that will perform Facilities Removal or provide liability
protection or both, it will consider savings and other benefits obtained by selecting a
contractor(s) that already has CIP infrastructure inplace.
Unless the States and PacifiCorp agree otherwise, the DRE will obtain the followingprojecc
specific types of insurance policies, if applicable. The policy tlpes and coverage limits
ultimately obtained by the DRE to provide risk mitigation to the States and PacifiCorpare
subject to the approval of the States and PacifiCorp in consultation with the FederalParties:
1. Commercial General Liability ("CGL") policy to cover third-party property damageand
third-party bodily injury that occurs from activity performed at the damdeconstruction
site;
2. Workers Compensation / Employer's Liability / USL&H policy to provide coverage for
injuries that occur on the dam deconstruction site to individual workers;
L-1
Rocky Mountain Power
Exhibit No. 2 Page 159 ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
3. Builder's Risk / Inland Marine or Commercial Property policy to provide property
coverage for damage to any equipment or components of the dam that will be restored or
salvaged;
4. Automobile Liability policy to provide coverage for third-party property damage and
third-party bodily injo.y for the auto fleet used related to the constuction activities;
5. Umbrella Liability policy to provide excess coverage for General Liabilityand
Automobile Liability;
6. Professional Liability policy to provide coverage to protect an insured if their clientis
financially harmed from the rendering of their professional services or advice (including
lack thereof) and for which the insured is held legally liable;
7. Contractors Pollution Liability ("CPL") policy to provide third-party coverage forclean-
up and remediation costs, bodily injury, property damage (including natural resource
damages, loss of use and diminution in value) and legal defense expenses, as a result of
pollution conditions arising from operations performed by or on behalf of thecontractor;
and
8. Fixed Site Pollution Liability ("PLL") policy to provide coverage for on-site &off-site
clean-up/remediation costs, third-party claims for bodily injury and propertydamage
(including natural resource damages, loss of use and diminution in value) and defense
expenses and legal costs not otherwise addressed by the CPL (i.e. Pollution Conditions
not caused or exacerbated by the contractors) and arising from Pollution Conditions on,
at, under, migrating to and migrating from property owned or leased by the Insured.
The DRE further agrees that the insurance required above will include PacifiCorp, the State
of Oregon, the State of California, and their respective officers, agents, employees, and
members as additional insureds. As evidence of this required insurance coverage, theDRE
will furnish a certificate or certificates of insurance including all of the foregoingcoverage(s)
to PacifiCorp and the States before any contract for Facilities Removal is effective andbefore
Facilities Removal work begins. The following language shall be used for namingadditional
insureds:
ADDITIONAL INSURED: PacifiCorp, the State of Oregon,
the State of California, and their respective officers, employees
and agents are Additional Insureds for theCONTRACTOR's
activities to be performed under this Contract. Coverage is
primary and non-contributory with any other insurance and
self-insurance.
EartllliEgldiry
The DRE agrees to provide, or to contract with entities that will provide, conventional
performance and payment bonding, unless otherwise agreed to by the States, DRE, and
L-2
Rocky Mountain Power
Exhibit No. 2 Page 160 ol 221
Case No. PAC-E-21-01
\Mtness: Timothy J. Hemstreet
PacifiCorp, from a financially sound surety company to assure that Facilities Removal willbe
performed as required:
1. Bid Bond;
2. Performance Bond (in an amount equivalent to original contract value); and
3. Payment Bond (in an amount equivalent to original contract value).
The DRE agrees to include PacifiCorp and the States as Third Party Beneficiaries in anycontract
with a contractor(s) that will perform Facilities Removal or any activities associatedwith
Facilities Removal.
Part IV: Risk Mitiqation
A. Contractual lndemnification
The DRE agrees to contract with a specialty corporate indemnitor ("Liability Transfer Corp.")to
protect ttre States and PacifiCorp against any harm to persons, property, or the environment, or
damages resulting from either Facilities Removal or Facility operation arising from, relatingto,
or triggered by actions associated with Facilities Removal, including but not limited to any
damage caused by the release of any material or substance, including but not limitedto
hazardous substances that is not covered contractually or by insurance. Without limitingthe
generality of the foregoing, this liability protection must include protection fromthird-party
diminution in value land or property claims to the extent not already covered bycontractor(s)
insurance or mitigation funding.
The Parties agree that the approval of a Liability Transfer Corp. is not subject to theprovisions
of Section 8.3 of this Settlement; provided, however, that the Parties further agree thatthe
selection of a Liability Transfer Corp. will be subject to the approval of the States and
PacifiCorp, in consultation with the Federal Parties, whose approval may not beunreasonably
withheld.
PacifiCorp and the States agree that, in the selection of a Liability Transfer Cotp., thefollowing
parameters constitute the minimum indicia ofsufficiency:
1. Appropriate corporate capitalization as agreed to by the States andPacifiCorp;
2. Past performance in performing similar projects in scope, magnitude (complexityand
size, such as but not limited to performance of work at multiple locations at the same
time), and type (water way work; environmentally regulated);
3- Experience with federally regulated permitting processes; and
4. Longevity in industry.
L-3
Rocky Mountain Power
Exhibit No. 2 Page 161 of 221
Case No. PAC-E-21-01
\Mtness: Timothy J. Hemstreet
The Parties agree that the DRE may contract with a Liability Transfer Corp. toprovide
contractual indemnifrcation for the above-described risks, and further agree that the DRE may
also transfer its ownership of the Facilities and Parcel B Lands, in whole or in part, to thatentity
The Parties further agree that the Liability Transfer Corp. will become a party to this Sefflement
before ownership of the Facilities, in whole or in part, is fransfered to the LiabilityTransfer
Corp.
L-4
Rod<y Mountain Pouer
Exhlbit No. 2Page 1a2ot221
Case No. PAGE-2'141
Witness: Timothy J. Hemstreet
EXHIBITS
Rocky Mountain Power
Exhibit No. 2 Page 163 ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
UEIEIL1
Water Rights Agreement between PacifiCorp and the State of Oregon
The purpose of this Water Rights Agreement (Agreement) is to establish a process forthe
reauthorization and resolution of water rights and claims related to the Klamath Hydroelectric
Project and for participation of state agencies in such process, in a manner consistent with the
Klamath Hydroelectric Settlement Agreement dated February 18, 2010 (Settlement). Parties to
this Agreement are PacifiCorp (the Company), and the State of Oregon by and throughthe
following agencies: Oregon Water Resources Department (WRD), Oregon Department of
Environmental Quality (DEQ), Oregon Department of Fish and Wildlife (ODFW), andthe
Hydroelectric Application Review Team (HART).
This Agreement between PacifiCorp and the State of Oregon will be included as an
exhibit to the Klamath Hydroelectric Settlement Agreement; however, this Agreement has force
and effect independent of the viability of the Klamath Hydroelectric Settlement Agreement.
L Reauthorization and Expansion of Use under HE 180
The Company has filed an application with WRD to reauthorize its right to use 2500 cfs ofwater
under HE No. 180 at J.C. Boyle powerhouse. Pursuant to Section 6.1.1 of the Sefflement, the
Company will perform certain interim measures and may, subject to the terms describedbelow,
divert a maximum of 3,000 cubic feet per second ("cfs") of water, for purposes ofpower
generation at J.C. Boyle hydroelectric plant prior to the decommissioning and removal of theJ.C.
Boyle facility. This section addresses agreements between the Company and WRD related to
this request.
A.Reauthorization of HE No. 180: The Company seeks to enlarge its water rightby
an amount up to 500 cfs more than the 2,500 cfs currently authorized under HE
No. 180, pursuant to ORS 543A.145. The Company will provide written notice to
WRD expressing its intent to enlarge its water right. If a reauthorized waterright
is issued by WRD, the priority date for the additional 500 cfs, if approved, shall
be the date the Company filed the notice of intent to reauthorizeEB No. 180, as
provided in ORS 5434.145(3). Any reauthorized water right shall provide that
use of any amount additional to the currently authorized 2,500 cfs may not occur
following termination of the Settlement as provided in Section 8 ofthe
Settlement, unless extended by mutual agreement of the Company and WRD.
WRD will extend the expiration date of HE No. 180 as necessary to allow for
completion of the reauthorization process, pursuant to ORS 5434.150(2).
The Parties agree that any reauthorized water right issued by WRD shall have an
expiration date of December 3l , 2020. The expiration date may be extended in
accordance with applicable law.
The Parties agree that any reauthorized water right issued by WRD shall
incorporate and require compliance with protocols developed pursuant tothe
Water Rights Agreement 1
B
Rocky Mountain Power
Exhibit No. 2 Page 164 of 221
Case No. PAC-E-21-01
Witness: Timothy J. Hemstreet
Settlement for: quantit/ing any additional flows in the Klamath Rivermade
available through implementation of the Klamath River BasinRestoration
Agreement dated February 18, 2010; and for coordinating with the Company on
the timing and manner of release of such flows.
Limited License: The Company may apply for a limited license for use of 500 cfs
for hydroelectric purposes in addition to uses currently permitted by HE No. 180.
The purpose of the application for a limited license is to obtain permission foruse
of water that the Company intends to request as part of its reauthoization
application while the reauthorization application is pending before WRD. The
Company's application for a limited license, WRD's review of anddetermination
on the Company's application, and the terms of use of any limited license issued
are subject to ORS 537.143 and applicable administrative rules. In addition, any
limited license issued as a result of the Company's application is subject to the
limitations described herein.
The Parties agree that use of water under this limited license will not havepriority
over any other water right exercised according to a permit, certificate, or
adjudicated right subject to regulation by the watermaster, and shall be
subordinate to all other authorized uses that rely upon the same source. The
Parties agree that any limited license issued by WRD shall incorporate protocols
developed pursuant to the Settlement for: quantifying any additional flows inthe
Klamath River made available through implementation of the Klamath River
Basin Restoration Agreement dated February 18, 2010; and for coordinating with
the Company on the timing and manner of release of such flows. IfOWRD
determines to issue a limited license pursuant to the Agreement, and theprotocols
developed pursuant to the Settlement have not been completed, OWRD will
include in the limited license a condition that the protocols will be incorporated
by reference upon their completion. Any limited license subsequently issued
pursuant to the Agreement shall incorporate the protocols. In addition, anylimited
license issued by OWRD shall provide that use under the limited license maynot
occur following termination of the Settlement as provided in Section 8 ofthe
Settlement, unless such use is mutually agreed to by the Company andWRD.
The Parties further agree that WRD may reconsider or revoke the limited license
if the use is determined by WRD in a legal or administrative proceeding to be
inconsistent with applicable law or policy. WRD will revoke the limited license
upon issuance of a final order on the application for reauthorization ifthe
reauthorization order contains an enlargement of HE No. 180 in the amount of
500 cfs, or if the reauthorization order contains an enlargement of HE No. 180 by
an amount less than 500 cfs, WRD will revoke the limited license to the extentof
the enlargement. The limited license will have a duration of not more than one
year. Prior to the expiration of any limited license term, the Company may
request the issuance of a new license for the same use, but the total duration of
licenses issued for this use may not exceed five years. The Company agrees to
Water Rights Agreement -2-
Rocky Mountain Power
Exhibit No. 2Page 165 o1221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
I
Water Rights Agreement
pay fees and expenses provided for in Oregon law and associated with arequest
for a limited license, pursuant to ORS 537.143 and OAR690-340-0030.
Assignment of the Company's Water Rights and Claimsl Conversion to Instream
Water Rights
A.Backeround: The Company holds rights for the use of water forhydroelectric
purposes as provided by HE 180 and Certificate 24508.In addition, theCompany
maintains Claim Nos. 167, 168 and 218 for use for hydroelectric purposes in the
ongoing Klamath Basin Water Rights Adjudication. ORS 5434.305 provides for
the "conversion" of a hydroelectric water right to an instream water right when
use of the water ceases for the hydroelectric project.
B.HE 180: Within 365 days of December 31,2020, or, if the J.C. Boyle power
plant is still operating on that date, within 365 days after use of water under HE
No. 180 ceases, or as otherwise provided by ORS 543A.305, the Company shall
assign HE 180, or any right resulting from reauthorization of HE 180, to WRDfor
conversion to an instream water right pursuant to ORS 543A.305. WRD shall
accept HE 180 "AS IS"; the Company expressly disclaims any representation or
warranty concerning HE 180 or its convertibility to an instream water right. Prior
to the assignment, the Company shall use reasonable efforts to avoid allowingHE
180 to become subject to forfeiture for non-use, and shall not otherwise
intentionally jeopardize the validity of HE 180, and in times of water shortage the
Company and WRD may agree with other existing water users to proratewater
shortages notwithstanding relative priority dates. If the Company's historic use of
water under HE 180 becomes a matter of dispute in a legal proceeding the
Company shall cooperate with WRD in defending the validity of HE 180by
making reasonable efforts to provide documentation regarding the history of the
use of water pursuant to HE 180.
Certificate 24508: Within 120 days after use of water under Certificate 24508
ceases, or as otherwise provided by ORS 543A.305, the Company shall assign
Certificate 24508 to WRD for conversion to an instream water right pursuant to
ORS 5434.305. WRD shall accept Certificate 24508 "AS IS";the Company
expressly disclaims any representation or wa:ranty concerning Certificate24508
or its convertibility to an instream water right. Prior to the assignment, the
Company shall use reasonable efforts to avoid allowing Certificate 24508 to be
forfeited for non-use, and shall not otherwise intentionally jeopardize thevalidity
of Certificate}45}8, and in times of water shortage the Company and WRDmay
agree with other existing water users to prorate water shortages notwithstanding
relative priority dates. If the Company's historic use of water under Certificate
24508 becomes a matter of dispute in a legal proceeding the Company shall
cooperate with WRD in defending the validity of Certificate245}& bymaking
reasonable efforts to provide documentation regarding the history of the use of
water pursuant to Certificate 24508.
C
J
D.
E.
Water Rights Agreement
Rocky Mountain Power
Exhibit No. 2 Page 166 ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
Klamath Basin Water Right Adjudication Claims 167 and 168: Within 120 days
after use of water under Claims 167 and 168 ceases, pursuant to a final FERC
order amending the license for Project No. 2082 to remove the Eastside and
Westside power plants and appurtenant facilities on the Link River from the
license, or a final FERC order accepting surrender of the license for Project No.
2082 as it pertains to the Eastside and Westside power plants, or asotherwise
provided by ORS 5434.305, the Company shall assign Claims 167 and 168 as
described herein. If rights based on either Claim 167 or 168 are determined to
exist, and all appeals pertaining to either claim have been exhausted, the
company shall assign such right(s) to wRD. If the Findings of Fact and orderof
Determination ("FFOD") for Claims 167 and 168 has not yet been issued in the
Adjudication pursuant to ORS 539.130, or if the portion of the FFOD pertaining
to either of these claims is still subject to appeal, the company shall assign such
claim(s) to ODFW. If assignment is made to ODFW, WRD will proceed with
conversion as appropriate pursuant to ORS 543A.305, but ODFW will be
responsible for further prosecution of Claims 167 and I 68 in the Adjudication,
unless WRD and ODFW agree to another course of action.
Prior to the assignment of Claims 167 or 168, or any rights recognizedunder
Claims 167 or 168, the Company shall use reasonable efforts to avoidallowing
Claims 167 or 168 to be deemed abandoned for non-use prior to adjudication; or
for any rights recognized under Claims 167 and 168 in the FFOD, to avoid
becoming subject to forfeiture for non-use, and shall not otherwise intentionally
jeopardize the validity of Claims 167 or 168, except to the extent that theFERC
annual license or Settlement requires flow regimes inconsistent with Claims 167
or 168, and in times of water shortage the Company and ODFW may agree with
other existing water users to prorate water shortages notwithstanding relative
priority dates. If the Company's historic use of water under Claims 167 or 168
becomes a maffer of dispute in a legal proceeding, the Company shall cooperate
with ODFW in defending the validity of Claims 167 or 168 by makingreasonable
efforts to provide documentation regarding the history of the use of water
pursuant to Claims 167 or 168 prior to assignment. If conversion occurs, at the
time of conversion the right(s) will be held by WRD as provided by ORS
543A.305. The Company shall cooperate with WRD by making reasonable efforts
to provide historic documentation in aid of the conversion.
Klamath Basin Water Rieht Adiudication Claim 218: In the event the Company
decides to permanently cease power generation at Fall Creek hydroelectricpower
plant in California, or decides not to exercise Claim 21 8 for power generation,
within 365 days of permanent cessation of power generation or water diversion,
or as otherwise provided by ORS 543A.305, the Company shall assign Claim218
as described herein.
If rights based on Claim 21.8 are determined to exist, and all appeals pertaining to
the claim have been exhausted, the Company shall assign such right(s) to WRD.
If the Findings of Fact and Order of Determination ("FFOD") for Claim 218 has
4
Rocky Mountain Power
Exhibit No. 2 Page 167 ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
not yet been issued in the Adjudication pursuant to ORS 539.130, or if the portion
of the FFOD pertaining to Claim 218 is still subject to appeal, the Companyshall
assign Claim 218 to ODFW. If assignment is made to ODFW, WRD willproceed
with conversion as appropriate pursuant to ORS 543A.305, but ODFW will be
responsible for further prosecution of Claim 218 in the Adjudication, unless WRD
and ODFW agree to another course of action. For the purposes of this Agreement,
transfer of the Fall Creek hydroelectric power plant, along with Claim 2t8,to
another entity shall not constitute permanent cessation of power generation;
provided, that any transfer of the Fall Creek hydroelectric power plant will be
governed by applicable law.
Prior to the assignment of Claim 21 8, or any rights recognized under Claim 21 8,
the Company shall use reasonable efforts to avoid allowing Claim 218 to be
deemed abandoned for non-use prior to adjudication; or for any rights recognized
under Claim 218 in the FFOD, to avoid becoming subject to forfeiture fornon-
use, and shall not otherwise intentionally jeopardize the validity of Claim 218,
except to the extent that the FERC annual license or Settlement requires flow
regimes inconsistent with Claim 218, and in times of water shortage the Company
and ODFW may agree with other existing water users to prorate water shortages
notwithstanding relative priority dates. If the Company's historic use of water
under Claim 218 becomes a matter of dispute in a legal proceeding, the Company
shall cooperate with ODFW in defending the validity of Claim 218 bymaking
reasonable efforts to provide documentation regarding the history of the use of
water pursuant to Claim 21 8 prior to assignment. If conversion occurs, at the time
of conversion the rieht(s) will be held by WRD as provided by ORS 543A.305.
The Company shall cooperate with WRD by making reasonable efforts to provide
historic documentation in aid of the conversion.
WRD shall accept Claim 218 "AS IS"; the Company expressly disclaims any
representation or warranty conceming Claim 218 or its convertibility to an
instream water right.
Nothing in this Section E is intended in any way to limit the Company's use of
water under Claim 218.
III. The Company's Protests to State Instream Water Right Applications
Within 90 days of the sooner of; (1) assignment of the water rights or claims pursuant to Sections
II.B through II.D of this Agreement; or (2) issuance of a final order in the KlamathBasin
Adjudication pursuant to ORS 539.140 and 539.150 and completion of all appeals pertaining to
the Company's Claims 167 and 168, and the Company's contests in Cases 282 and 286 ofthe
Klamath Basin Adjudication, the Company agrees to withdraw with prejudice its protests to
Instream Water Right Application Numbers 7 0094, 7 0812 and 708 I 3 . The withdrawal must be in
writing in a form subject to the approval, not to be unreasonably withheld, ofOWRD.
Water Rights Agreement -5-
Rocky Mountain Power
Exhibit No. 2Page 168 of 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
IV. Agency Reauthorization Costs
Under ORS 543A.405, the Company, as applicant for reauthorizationof a hydroelectric project,
must pay all expenses related to the review and decision of the HART incurred by anystate
agency participating in the HART that are not otherwise covered by the reauthorization fee paid
under ORS 543A.415. The Company's application is for water rights reauthorization for the
Klamath Project (HE 180, J.C. Boyle), located near Klamath Falls, Oregon. WRD, ODFW and
DEQ will incur costs in connection with review of the Company's reauthorization application
and during participation in federal studies under the Settlement, which studies may also form a
basis for the FIART's decision whether reauthorization and enlargement of the Company's water
rights are in the public interest.
Pursuant to ORS 543A.405, the Company has requested an estimate of the anticipated costs tobe
incurred in processing and reviewing these applications. The costs to be paid by theCompany
under this Agreement and their estimate are attached to and incorporated into this Agreement as
Appendix 1. For the period of September r,2009, through September r,2012, the HART
estimates the costs for these activities to be :
Estimated costs from September 1,2009
through September l, 2012:
(See Appendix 1)
$ 216.371.00
25Yopayment due upon signing:$ s4.093.00
Under terms of this Agreement, the Company will make four payments of 25%o each of the
estimated costs of review according to the following schedule: The initial payment of 25o/o isto
be made within 45 days of the signing of this Agreement, with the remaining three payments of
25%o eachto be made on or before October 1,2010, July l, 2011, and January 30,2012.
Payment shall be made to: Oregon Water Resources Department, 725 Summer Street NE, Suite
A, Salem, OR 97301.
During the course of this Agreement, the Company will receive from HART, coordinated bythe
WRD, a quarterly report indicating cost reimbursement funds received under this Agreement and
expenses charged against the project. The reports will be provided to the Company accordingto
the regular report generation schedule of the HART. The report will display the revenue and
expenses for each agency receiving funds under the Agreement. [n addition, participating
agencies will provide a quarterly status report to the Company that includes a sunmary ofwork
performed. The Company may, at its discretion, request additional revenue and expense
information from any agency receiving funds under this Agreement. If requested bythe
Company, agency parties to this Agreement will work with the Company to provide additional
information concerning revenues and activities associated with charged expenses. WRD will
only provide additional information for project revenues and expenditures incurred by it and is
not responsible, nor is it within its scope, to audit the expenditures of other agencies. If the
HART quarterly reporting becomes more that six (6) months delinquent, the Company may
withhold payments specified above until quarterly reporting is made current.
Water Rights Agreement -6-
Rocky Mountain Power
Exhibit No. 2Page 169 ot 221
Case No. PAC-E-21-01
Witness: Timothy J. Hemstreet
If the costs of evaluating the applications exceeds the estimate provided herein, the HART
members receiving funds under this Agreement shall comply with the provisions of ORS
543A.405(5). Additionally, if the total amount paid by the Company exceeds costs actually
incurred by the agencies, the excess payment shall be refunded to the Company accordingto
oRS s43A.40s(5).
Costs paid by the Company under this Agreement are in addition to any other fee required by
applicable law, including but not limited to the annual fee established under ORS 543.088. The
Company's payment of costs under this Agreement does not create an obligation to pay the
project-specific fee required under ORS 543.080 for agency oversight of measures included in
ihe reauthorized water right, which fee shall be established in and payable under the reauthorized
water right.
V. Other Terms
Reservations: Nothing in this Agreement is intended or shall be construedto
affect or limit the authority or obligation of any Party to fulfill its constitutional,
statutory, and regulatory responsibilities or comply with any judicial decision.
Nothing in this Agreement shall be interpreted to require any Party to implement
any action which is not authorized by applicable law or where sufficientfunds
have not been appropriated for that purpose. The Parties expressly reserve all
rights not granted, recognized, or relinquished in this Agreement.
No Arzument. Admission. or Precedent: This Agreement shall not be offered for
or against a Party as argument, admission, or precedent regarding any issue of fact
or law in any mediation, arbitration, litigation, or other administrative or legal
proceeding, except that this Agreement may be used in any future proceeding to
interpret or enforce the terms of this Agreement, consistent with applicable law.
This Agreement may also be used by any Party in litigation by or against non-
Parties to implement or defend this Agreement. This section shall survive any
termination of this Agreement.
A.
B.
C Successors and Assiqns: This Agreement shall apply to, be binding on, and inure
to the benefit of the Parties and their successors and assigns, unless otherwise
specified in this Agreement. No assignment may take effect without the express
written approval of the other Parties, which approval will not be unreasonably
withheld.
Amendment: This Agreement may be amended in writing by all Parties stillin
existence, including any successors or assigns.
Disoute Resolution: The Parties agree to devote such resources as are needed and
as can be reasonably provided to resolve any disputes arising under this
Agreement expeditiously. Each Party shall bear its own costs for itsparticipation
in dispute resolution. If a dispute cannot be timely resolved informally, the
Parties may elect to use a neutral mediator. Mediation shall not occur ifthe
D
E
Water Rights Agreement -7 -
Rocky Mountain Power
Exhibit No. 2 Page 170 ot 221
Case No. PAC-E-21-01
Vvitness: Timothy J. Hemstreet
Parties do not unanimously agree on use of a mediator, choice of mediator, and
allocation of costs.
F Remedies: This Agreement does not create a cause of action in contract for
monetary damages for any alleged breach by any Party of this Agreement. The
Parties reserve all other existing remedies.
G Entire Aereement: This Agreement contains the complete and exclusive
agreement among the Parties with respect to the subject matter thereof, and
supersedes all prior discussions, negotiations, representations, warranties,
commitments, offers, agreements in principle, and other writings among the
Parties, with respect to its subject matter.
H Severabilitv: This Agreement is made on the understanding that each provision is
a necessary part of the entire Agreement. However, if any provision ofthis
Agreement is held by a regulatory agency or a court of competent jurisdiction to
be invalid, illegal, or unenforceable: (i) the validity, legality, and dnforceability of
the remaining provisions of this Agreement are not affected or impaired in any
way; and (ii) the Parties shall negotiate in good faith in an attempt to agree to
another provision (instead of the provision held to be invalid, illegal, or
unenforceable) that is valid, legal, and enforceable and ca:ries out the Parties'
intention to the gleatest lawful extent under this Agreement.
I.Confidentiality: Disclosure of settlement communications pertaining to this
Agreement shall be governed by the "Agreement for Confidentiality of Settlement
Communications and Negotiations Protocol Related to the Klamath Hydroelectric
Project" dated December 3,2008.
J Termination: This Agreement may be terminated at the sole discretion eitherof:
(i) PacifiCorp, or (ii) WRD, DEQ, ODFW, and the HART collectively, inthe
event of termination of the Settlement.
K.No Third Party Beneficiaries: This Agreement is not intended to and shall not
confer any right or interest in the public, or any member thereof or on any
persons or entities that are not Parties hereto, as intended or expected third party
beneficiaries hereof, and shall not authorize any non-Party to maintain a suit at
law or equity based on a cause of action deriving from this Agreement. The
duties, obligations, and responsibilities of the Parties with respect to thirdparties
shall remain as imposed under applicable law.
L.
M.
Elected Officials Not to Benefit: No Member of or Delegate to Congress,
Resident Commissioner, or elected official shall personally benefit from this
Agreement or from anybenefit that may arise from it.
No Partnership: Except as otherwise expressly set forth herein, nothing contained
in this Agreement is intended or shall be construed to create an association, trust,
Water Rights Agreement -8-
Rocky Mountain Power
Exhibit No. 2Page 171 of 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
partnership, or joint venfure, or impose any trust or parhership duty, obligation,
or liability on any Party, or create an agency relationship between or among the
Parties or between any Party and any employee of any other Party.
N Governins Law: This Agreement shall be govemed by the laws of the State of
Oregon. Any reference in this Agreement to any applicable law shall be deemed
to be a reference to a statute or regulation, or successor, in existence as ofthedate
of the action in question.
VI. Signatures
PacifiCorp
Date:
by:
Oregon Water Resources Departrnent
Date:
by:
Oregon Deparfinent of Environmental Quality
Date:
by:
Oregon Department of Fish and Wildlife
Date:
by:
Approved As To Legal Sufficiency in Accordance With ORS 291.047
By:Date:
Jesse D. Ratcliffe
Assistant Attomey General
Oregon Deparhnent of Justice
Water Rights Agreement -9-
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Exhibit No. 2 Page 185 of 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
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-Lst ooc {fl mil th rguurcrrl quctrr d tlr nort}0rrt eurrtar 0focstrm onr.lll rn tormilr^p fgrrt (rol rouqi.r",u. i,r (rii E-rif"lo:j-"ij-i.ril rrrlel, thrc. l3l urd_rou.r It) or mottotr rr* lol ldtgtiirriD'iorrt lr0l eoutii'mrisitcyGtt ['l cotl or iilllaacttG ]hrlalanl.orecDttrE rnd ftrgi.vtrt itrrt_s-trtoln-raffioltrrfhD of -rry lryrc-rofora ror0 to thr Eod$cur|eutrla Bathry !qp-ri, -d"{ iurl-1 ritout trDil dcrcrllcd 1a t\al c.rt.ln deod dl'r. lrptolbor s?, if,oe r-r"riirico on oitobar{, 1f'00. tt Jtl3r {61 oi toluE !g of thr doc6 ricor{r of illllotn Gorrrrtrr 0r;gont
llro. oll of tho rt6ht, tltt! urd taLrrrt of Utt,irtt of, tbc flrrtPolt-_ln tn{_Eo li:!t crttotn lntlrJl-nl datt0 llrrelr tlr 10e0, gron loon:f. tndarlollrod llcltlc t. tndnrranl huetanO anrt rtfr. o!,Ifonrtl Coutlr 6totc of O*eon, io- -
l'ctlarttll; ?rtrst Co:{rcnt, of 3m Frmoltcor Crltlornla. rbiih arl,d aotucnit ilrFcccrdod oa iDrll l]r l9?0. lq-rlr df ter of thr corsrti Clort of antd tilrsarh Gounttl:r lblu.an 32 ef hrBi. p*d 3t?.
Rocky Mountain Power
Exhibit No. 2 Page '196 ot 221
Case No. PAC-E-21-01
VMtness: Timothy J. Hemstreet
LEGAL DESCRIPTIONS OF PACIFICORP PARCEL BPROPERTIES
OREGON PARCELS
oRKL-0501
t tr fl'. (5!, rtr (5) rnd ctghr, lE) f Sootloa 81r (61 llr To''rrrdp fctr {{olSorthr rrnrr trici-(Z) ri"t or th-illU.trrttc Eatlrlglr, ooni*tatng rl,ghiy-ftvi rut-96r{go(8.961 .orlr,
ORKL-0504
Lotr 0m (Il. Tno (Pl oird ltror l3l ol Eootlol ftrtrtt'llr (16)r to,ft'rhtD ?Ilrtrnlnc (5f I Southr llangr Sortn (?l lrtt. illtG.ttt ]lrlit!tl
oRKL-0s05
Govenmeut Lot { in Sestion 36 Towmhtp 39 south, Range ? Errt of the wllhme&
Merldlu, Iflamafr Courty, Oregor.
oRKL-0s07
TLr $El/4 SWl/{ rnd the SWU{ SEl/4 rnd Gsvornmmt Loh 3,4 rnd 5 in Socfion 3$
Townrhlp 39 Sonrh, trnge 7 Erct of &c Wllt*mth hleridir* trOrmrth &unty, Omgoni
EXCEPTING TIIERDFROM that portion thereof dcserlbed m Prmel S h &rtc+rtrh
Wrrrr*y Deed ftom tle Cdlfionle Oregou Pcwor Compaly, a coqnrafioe, to Wcyertrurer
Tlmbcr ComprnS l conlorsfiorr rosldd Jdy 15, 1959 in Deed Volume 31{, prye 179,I}srd
Rocord* of Xlamrtr County, Ortgom.
oRKL-0508
Govcrumcnt Lot 7 ln Sccfion 36 Town*ip 39 $ouft, R.rngt ? Errt of tte Wlllemette
Meridirn, Klemah Comty, Orcgon.
Rocky Mountain Power
Exhibit No. 2 Page 197 oI 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
(road easement granted to Klamath County, l-26-68)
Rocky Mountain Power
Exhibit No. 2Page 198 o1221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
oRKL-0509
The foflowing dcscribed lfitd b€ing ia Sastion 31, Toumship 39 Soudf Raugo S Esst, Willamettc
Mcridiq lUmrath County, Oregon.
Bcgiming at a point on the oestiou 1im rrti& beae South t I I .4 fe€t from tho quartcr corni( on tre
Wcst boundaryof Soction 31, Town*rlp 39 Boufi, RttrgE I Bast, Wilhmfie Mcridia& Klaruslh
Corety, Oregpn; thsrcc South 44e01 ' East I 316.7 fffi to a point on the Northerly boundry line of
Riverside Additim to the Town ofKcuo" Orcgou; thcnce South 53"30lVest ?8.5 fect more or less,
dong the Northrly bomdary of ssid RivEtuide Addition to the low nratcr linc on thc Norlh bank of thc
Klmath Rive'r, thcncc Northwest€rly along the low wster line of lb Nordr bank of the Klauratlr Rivcr
down cheam to apoint ou ilrc Wc6t bowdary linc of said Section 3l; thcmce 82"0 fm, more or lees"
North along said Section linc to the point ofbogiming.
Togdher udft a ship of lsnd 40 fcst widc cxtending along the Waeterly line of Riverride Addition to
Kao, Oregou from lhe Northerly linc of Broylce Avrnue to thc Northerly line of the abovs dcscribd
pranises.
Rocky Mountain Power
Exhibit No. 2 Page 199 ol 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
oRKL-0510-A
lot EtgLt {0l,uni Bouthreat quertcr fglttl of seotloa.frcoty-alne
(89l,Tornrhlp tthlrty-nlue (s0l gorth,Rengo Sevsn (?l East cf iltllonctte
lltrlillao,
lote flvr (61 auit $1= (61 of sectlor thtrty ($0) forrohtp
thlrty-rtte [$9I South,Runge Bevtn Saat of Ul.]Iu,etto Herl0lsr..
[ot Blr {61 of, srotlo! Ihlrty-oro (31}, [ornahf,p Thtrty-nluc
(991 Bouth,Sarga Scrsn {?l E,.et of llltlanotte lJrrldlra'
I.otr One lt) snd lihro (8l.cnd, Xorthtsst quarttr of llorthrtlt
quutu {ffifitr*l.stri Dolth hr1f of trorthlast quurtar (S}mtl teatlou
Ehtrtg.tro [48] ln formehlp Ehtrty-tlnr 159) gotth.franElt scrsr (?]
Eagt of illlleu€tta ltrsrl0luu.ello thc folloalug flcuorlbcil parot},t
of lBuA,to-ultl
{}l Couocnclrrg at o poltt lrcnty {E0l obalnn Soutb of ths
cornrr of atctlons E8,89tgB arit SE nartcil by a atale mrkoil l*;
theroc 'ilstt {B llnlta; thenoe $outh 5{ ilagreee 6B nfnutcr llcrt
18.19 chuluE;thcooc $onth E6 [tgrms fft $lu[tra EEg't 8.?S. ohalns
Lntcrsecttog tho f,ortb and Botth aeatlou llnc tattror acotloDi ggr
rn0 5Sl thrnoc Bortb 1+,?8 clralla to polnt of teglurln8,contetrntng
E.{{ aores [ors ot lttt,
lel BegrlnaLtg at r Dotnt trcutt (a0l otatlB soutt tEil Folty-
trvs l*51 ltuka iteet of tho so'rnrr of asotloaa 08reg,s8 ruil Bs.
thonoc 'lcst 19.55 oballr to thc Xorthrrst oorosr of tlto Southcrst
querter of lortheast quartsr of acattotr 88; theuoc Sontb lGvtn l7l
obatrueI tbsuoc Ecgt par&l,Iel to thr [ortb ltuc ol aal0 Southoutt
Rocky Mountain Power
Exhibit No. 2 Page 200 ot 22'l
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
quertrr of Uorthatst qtarttr af s€otlor glrl{.BI ahatnpl thrnoo
Dorth 3{rlegrras S,nlnntel ,EaBt E'{6 ohalaa.-to.the ploce 'ofScotlon 0?.
beglnnlng; ell of Bali t*o ptrocla of lanl }qttf tnAirmghtp Ihtrty
nlnr (591 South,deugn Etvu (?l Bart of ?ttllamatt6 ltrerlillan,
uortlrregt qulrter of tlorth*est qu'Brter (ffitmrtl rno $outh
half of l{ortbrcst gualtor (s$r,ill $l{ Aorttr hall of Eout'ht€st qnelter
(ffftilt) of ncotlor Ehtrty-thrte (Sgl iln fomrhLp fhlrtf-uta+ tggl
BouthrBonga Sevcn {r, SEst .of lllllenctta lltrldlar.
Southroat gusrt.r 0f llottLtsst rgrtBr ($utfE+I,',test he1f of
Ecnthsrst qugrter {Irl8Btl, Eact half 0f Eonthnelt qusrttr (E+glr}l,
unat Southureet qu*rter ol SouthreAt gntrter {8?t+g',t+} of tectlor .6,lu
SonnohLp Sorty l*0) $outn,fiengr Srvm (f l lost"iiltllunstte l{erldllan,
Lote three (01 ani! irour l4lrSoutheust quartor pf Eouthrcst
Busrtsr {SU1}3fllran{l Eoutbrrost guart* of Sonthseet girerter {Stttgigl
of rcctlqn Sevcn (tl Sornahl} forty Boutb,.lflrgc 8rr*n {t) E&{t
illl].sttl tte llerl iI ru.
less property sold to the lnternational Paper Company (all or a portion of Lot 2, Section
32, T39S, R7E, W.M.
less property sold to Ernest and Judy Smith 914187 (a portion located in the N1/2 of
Section 32, T39S, R7E, W.M. lying south of State Highway 66 )
less property sold in Section 33 T39S, R7E, W.M.
oRKL-0513
Goverument InE llr 12 end l3 in Sectlor 3( Tomrhtp 39 souflL Ruge 7 Errt of the Wilhmdtt
ffnolOf"", Xlamatil County, Oregou EXCIrTING thcrefrom troro pordons corvtyed to the
Urited Stetcs of Amerlcu
oRKL-0516
isir:{i.ii1r';gi*H{*#i*il$rhill{ jffi tdii}li,i,$f ii{:ti#,ft it:,,
o "" nY"-'-' "-fi:iltii,l ;:f; li liih';di;i,i:il'iil'#iii'*ii f riiH:hli ikXoE3h lla'frrlr tirrnIi'l.tt l'i.IH'i i:.:TliilHi.lil;liiii ilIro'ii"i""ETi't*; i'-iioiiH'icf 'ro'nrrrp
Rocky Mountain Power
Exhibit No. 2 Page 201 ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
oRKL-0518
of besin+rngr.9ontaperty"Eelng-situate
less that part conveyed to Leo J. Brennan et al by deed dated February 7,1967
oRKL-O519
t m
i&trgE
less that part conveyed to Leo J. Brennan et al by deed dated February 7,1967 .
oRKL-0520
Beginning at a pqint 1282.2 fset north of a point 786.1
,eet ur83t rl tire cornor tD TorffiehlP3 39 and .*0 Sotrttt
nlnecl Srvrn (7l srd Etght (81 Errt of tho Wlllemene
lvlerldioo, Orofpa;
THEHCE lbrth 208.7 ipat;
THENCE Wglt 208.? foat;
TI.FNCE South tr0S.7 ferti
THENCE East 2OE.7 ,E€t to the placa of boglanlng,
excBtlng trrt port ol ths hroln dsa;lbed lend corvryrd
to Leo J. Brennrn st sl by doBd d6rsd Fehrurry, 7. lgc?
and rsco(dqd ln Book irlB7 st Paer 0a2 dmd ruoodt of
Klamsth Coumy, Orrgon.
oRKL-Os21
(A:Lots 9 and l0
B, C, D: Lot 8)
i*t of lorr rrsht (g), nine {g) aucr ren (10) of
$ectlon Thirty-slx {SO}, Tor+nship ?htr{r-nlno (gS) South,
E*ngc seven (r) uaet slr"laiaette l{ertdtan, EmfiFf, ttre porttonr
thereof alreedy conveyod by rhomaB lfccomrlck a.nd wlfe, aB
follorer-
1l- fs the United States of l*I[erioa, b$ desd dated,troverber 14, 1906, and recorded'ln-yofune-gi oADeoda, 1.age d66, record; of tfla"mf,tf Couniy, 0renon,
2t- To the Uniled Btates of .6rerlcB, bJ d.eed datedAuguat 5, 1999, c,nti rccorded in'Voimi-if-oiDeeda, page 29{, recordr of, eeid Couniy.- --
Er- iiu[:!l iqqil'{i$-!;"3}q3!"i,ufiJil,"-ffirtlJ:, 1'.' :, 1
Fega 68, recorde of eeld County.
Rocky Mountain Power
Exhibit No. 2 Page 202 oI 221
Case No. PAC-E-21-01
VMtness: Timothy J. Hemstreet
-..1t, :i'4t-
5;-
6J-
?g-
To George,Croggsnr-W A99d dat€d *uguat 10, I9Ag,e.nd recorded ln yslume g9 of Deeas,-14g, SiA, ---'
Recorde of, galri County.
fo Ererett llotchkiaa, b-y_deed-dgtad Docembe,r 6,19&8, end rceorded ia Volune g6 of peeail'-;rg;'&6, records of aaid Oountyr
fo 8an ]Iiarrlt and Ray-Ilarrla, by deEd dateil July16, 1928, e.nd reoorded in Vol.rmi g6 of Ueeda,--'page 50S, roeords of satd County.
!o A..Et Xeea$_,C. by deed deted Uay IS, l9p6 a$dDesorileat ln Voluns ?B of Deeda, pirge 93. ruooratof t*1d Oounty.f'stL
oRKL-0522
3eglnnlng at a point ry th. Rengc llno between Secfi,on Thlrty.One (31), Townrhlp Thlrty-!{tne(39), sou& Renge Etghr (s) Eastof thr rililrms*tc MrrHirn and secdon Thrrty-sk {roTownship Thirty'Ntne !39), south Range seven (7) Ersr of the wllpmstte Meridien, rhict isElgtt Hundrclfutrty-ol5 rnd sh-Tcntfis (&3t.6i feet soutt ortnu qurrrsr coraer betwom sridsectlou 3t rrd 36; th*nce soulL on Rrnge ui* s"*rty-eighr ilit*o-rrnrhr (7t.1) foe,[ rhcnce$outh 5{P{15' Errt rhrse Hu1lroo twen-ty-one rad ono-Tenthr (l3l.l) frrq &emce North rg55'Erst to &c ccnltr line of the Iilrerfr mvir; thence aown s*riLo* tLe ceutor lirc of cr6rtrcam rlong t&e oBntor llne of mld strerm to srld Rrnge li"e; thil-tu $outh rlong rald Rrnge llnetn tte polnt of begiunlng.
Rocky Mountain Power
Exhibit No. 2 Page 203 ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
oRKL-0523-B
Ipta Seven (?1, El8}tt (8), and Xrne (9) oI S€ctlon Ehlrt5r-one
tlx) ana Iot three (3) or Eectton ftrlrty-troo (521, lbmEhtp flnfnty-
nt.ne (19) Southl BarrSo Beven (7) BEBI of U. E.
oRKL-0524
Also, bsginning at a point or tho Range linc bstwcca $ection 31, Touruhip 39 Souttr" Rage I Esst,
Willamettc Meiidian end Sostion 36, Township 39 Sor*h, Range 7 EaBL \ryilhmcfiG Mcridim, 40.6 fCIct
Soutr of thc quffier corncr bctwsa Sactiom 3l md 36 on gaid rmgn line; thcncc South etong said
range line 7 I .6 f€Et to e poitrl which is tho moet Norlh€rly point of the Uact of lmd cmvqrcd by thc
grfl*ors to the grmtco by dcod dated May 29, 1930 md rocordcd in Volumo 90, prg6 340, of the dscd
rgoords of Klaath f*unty, Oregm; thorco $outh 44"00' East aloag the Northcrly bormdary of srid
bact 5?2.6 foct to a poiut; theucc North 59o59' Easl 51.5 feet to a poinq theirce North 44o00' Wcst
636.4 fcet, motr or lesa, to thi point of begiming.
oRKL-0529
Begimiry et the Northnrest corncr of eaid Scctiom 29; themrc Soutb ff08' Wcst along thc Wcct line of
add Srction for a di,strncc of 1 812.E2 foct to a point markcd by a ooppcr nickcl pipc" 5/8 iroh in
dimstff ard 40 inches h lengft, cat in a rcck mound; thmoo North 86o17' East for a distanco of 697.69
frat to a point mdced by m irorr pipe, 3/4 iuch in diumeter, driven f,r6h $rith tbe pound and deoig[Etcd
es LB lQ naid irun pipc, aa arc all othcr irou pipce mcntionod in tri* dcrahtioq bcfutg rcfcrcncGd by a
copper-nickel pipe, 5/8 instr in dimetrr and 40 inches in l€ogtlt driven sdjacerrt theleto uttil iE top is
l0 inshes abovo the gount ttrmpe Norttr ?o03' EaEt on a linc ufrich passee thrcugh apoint 693.53 faet
disail, marted by an imn pipe, 3/4 inc,h in diarncta, driven fltutr with ttre gl,ound urd designntod LB
I l, to its inter*ction with the South linp of said NWU4 Mtrl/4, said point of ht€rscction bcing the true
point ofbeginring of thie desctiption; theurce continuing North ?o03' EaEt 250 f€et mot? tr leco, to said
poiu doaisnatcd LB t 1; thape South 80p43' Eaet for a distmce of 382.2? fea m a point marteil by an
irurpipc, 3/4 irch ir diamc,tcr, deignatud LB 12; thcmcc Sonft 11"24' Eest oa a lirc whichpa*cs
tkough a point ?42.04 fcct distanL martcd by an iron pipo, 3/4 inch itr dimetet, driven lfush with the
gnound and dtsiglrtsd LB 13, for a dietance of 193 foct, mora or lc;s, to its inlcrscctioD with lhe South
line of eaid HWI/4 NWI/4; thence Wcctaly along said Sou*r linc to thc tnrc point of bceinniry of this
d*cription,
Rocky Mountain Power
Exhibit No. 2 Page 204 ot 221
Case No. PAC-E-21-01
Vvitness: Timothy J. Hemstreet
Also parts of Government Lots 2 and l,theEl/2 SWI/4, Government Lots 3 and 4 of Section 30 and the
NWI/4NEl/4 of Section 3 I ,Townsmp 39 South, Range 7 East.Willamette Meridian, Klamath County,
Oregon, more particularly described as follows:
Beginning attheNorlheast comer of said Section 30; thurce South 0oO8' West alurg the East line of
said Section for a distance of 18 D.82 fed to a point marked by a copper-nickel pipe, 5/8 inch in
diameter and 40 inches in length set in a rock mound, said point being the truepoint of beginning of tms
description; ttrcnce South 86" I 7' West for a distance of 0 .92 feet to a point marked by an iron pipe 3/4
inch in diameter, driven flush with the ground and designated WT 8, said ircn pipe, as are all other iron
pipes mentioned in tms description, being referenced by a copper<rickel pipe, 5/8 inch in diameter and
40 inches in langth, driven adjacent thereto until its top is l0 inches above the ground; thence North
75o46' West for a distance of 460.81 feet to a point marked by an iron pipe,3/4 inch in diameter, driven
flustr with the ground ard designated as WT 7; thence South72o24' West for a distance of 118371 feet
toa pointmarked byan ironpipe, 3/4inchin diameter, driven flushwiththeground and designated WT
6;thenceNorth 75"06' West for a distance of 516.19 feet to a point marked by an iron pipe, 3/4 inch in
diameter, driven flush with the ground and designated as WT 5 ; thence South 36"06' West for a distance
of 1396.82 feet to a point marked by an iron pipe, 3/4inch in diameter, and driven flush with the ground
and designatedWT4;thence South2"46'Westforadistance of 103 1.45 feetto apointmarked by an
ironpipe,3/4 inch in diameter,driven flush with the ground and designated as WT 3;thence South
41"00' East (at a distance of 1540.84 feet crossing the South line of said Section 30 at a poiot which is
7 67 .05 feet distant South 88"34'East from the South 1/4 comerthereof) fora distance of 1542.89 feet to
apoint marked by an iron pipe,3l4 inch in diameter,drivenflush with the ground and designated WT 2;
thence South 39"59' East for a distance of 660.00 feet to a point marked by a copper-nickel pipe, 5/8
inch in diameter and 40 inches in length,driven in the ground until its top is l0inches abovethe ground;
thence continuing South 39"59'Eastfora distance of 195 feet, more orJess,to apoint on the Eastline
of the NW I/4 NE U4 of said Section 31 ;thence North along said East line fcr a distance of 640 feet"
rnoreorless,totheNortheast correrofsaidNWl/4NEl/4;thenceEastalongtheSouthlineofsaid
Section 3O to the Southeast comer of said Lot 4; thence Northerly along the Easterly line of said Lot 4,
the Easterly line of said Lot 3 and the Southeasterly line of said Lot2 to the Southwest comer of said
Lot I ; thorce Easterly along the South line of said Lot 1 to the Southeast comerthereof; therce North
along the East line of said Section 30 to the true point of beginning.
Rocky Mountain Power
Exhibit No. 2 Page 205 ol 221
Case No. PAC-E-21-01
VMtness: Timothy J. Hemstreet
ORKL-0530
Parcel tat I
-a
Int!;c (r! of Bectlon
,91 South, Han6e SevenountI. OreEoilr
conlBqcrqsnor{}Ia s5.
J'nlng il.rs0 ecrqs, Eqre gr 1ep5, of,:nhtgn 21.90r more or less. trre ln saLd Ipt l, 7.60 ocres,or less, ln sald lot 2, and 5.oo screar morc orIn sald l,ot ,.
Rocky Mountain Power
Exhibit No. 2 Page 206 of 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
Farcel ii:
?arts of lots Sfx {6} antl Seven t?} of Sectlon Trenty:"nlne
(29) . Tounshlpr?hlrty-nlne (19, Southl ltange Seven (?, East,Ulllinette Plerldlan, Klarnth County, Qtegon, nore pattlcularly
deserlbed as follorsr
Beg lnntng at the sectlsn corner connon to $cctlonsshlp 19 Souttr,7 East,
lane*,te i.lerld ncri Eouth ,r8o ile sts dlstance of 2 ,eet to a olnt rnarked by 8nlron pln anrJ de s as tlrB:l4 a,I
n theace South 0o
24r 58 tl Iast, a of 868.9 feet to e FIo 1ntan i.ro -!ot 6 sald P
1
olnt bc nE the
OT BEGTIINING of h1s d escr ption a,
1
thence
Ifsrth g2o 0 5k
lslance of s76.0 feet toa polnt ru{r
OIr! llest to
ed by an lron pln aIt thenco South '5Bo 291
the onr th the South llne oI
Eald lrot ?a IlC15 feetf rrore or iees;
theneo I{ec along the South tr1ne of satd Int 7rarth alot:gd lstanae 0f 700 f t I r.ore or less;e ltotlest Llne of 3a Ltl Lot ? *o the erscction ult!:
the I{eander Ltnc a!sa 1d tot ?I
1
a Gstance of 110
more or less nce Easter on6 the l.leantierllnesof satd lpts ction ulththe IIh e bcarlng South 0o 24! 58il East tueen.saldpolnt rr trB-I4tt an d the true polnt of beglruitng t henc e
Sr:uth 0c 24t 58 lr Eaet alo n6 .sald llne r'a dtstance of
L88.91 fee t, moreorl-es8 ,
7
to the true po lnt of
conta acr€g i Erore or less of
aereS t nore olr e38 ln sald Lot 6?
anC 5
Rocky Mountain Power
Exhibit No. 2 Page 207 of 221
Case No. PAC-E-21-01
Witness: Timothy J. Hemsheet
Pareel III
-
falls of Lots PgpT (41 and Eluq (5) ot Seetlon Thlrty*one
-t?1], f'ounshlp-Tlirty-n1ne lrg) SAuth, Eange Seven l?t Easr.tllllanette l,lerldtan, more partlcularty desdrlbed as-fo11orsi
Be6lwrtng at the L/4 seetlon cornsr comrron to sectlons30 alO 31, lounshlp 39 Bouth, Range ? East. 'rltllsrtettr
Merldlgn; thence South BBo 59t ?9tr East a15ng theiforth rlne of secticn Jr to the latersectton-rlih thel{est l1ne of sald.I/ct li3-llstance of Ir}48.p? feet,nore or less, tc the IRUE ?0rli1 tlP BEcilIfrinc of this'descrlptlqT; thence,Bouth alon6 the tieat rLne of gatdIot,5, B-dlstaree of 640.48 feCt to a polntr thenceSouth {1o Il, _Ig,' East, a dlstBnce of aCO,Zi fuei tsa_polnt.marked 9y an lfgn plni thence South-4Zo 5Or
_07" East, a dlstance dlrlg4.4? feet to a polnt iarkedby an lron_pln; thence Briuth go lll Zgd Eait. a d1s-tance cf 585.02 feet to__e polnt rirked FJ an'licn pin;thencr south 4lo 451 4ltr ilast to thb.rnt-eriec[ion urththe lto:th Bor:ndary.9f ilre Ferr! of-l{ay ;i-sGi;-iirsi,ray
Ig.,-?1!_thence Noitheasterly-along th-e aald hlsh,ayrlght of ray to the rntersectlcn Irttr the l,leanEei- Ltnealong tho East etde of sslg^Fl i; ,tt_]ence ilorlherly alongths l{eander r,lne of ss,1d {ttl 4 airt--s-f; tlre lntersectionulth the liorth llne oi sald Suetti-i jf;-thancc lrriilr-Cu.1?r 29ri i{est along the llcrth rtne or-ilro sentron {} .
iiii:iitdillsiilJrl:il. i*o
.n" ri"u polii*;l"i;eiffi im;"",
:rcre or rrssn are 1n *;rc'ljt";,':;;'rllo, .rcycs, niorE orlecg, tn sald Iot 5.
Rocky Mounlain Power
Exhibit No. 2 Page 208 of 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
tstrce lry
of In lie ;nrh !ne t9 Sout:r !?an1;edescribc$
Rocky Mountain Power
Exhibit No. 2 Page 209 ot 221
Case No. PAC-E-21-01
VMtness: Timothy J. Hemstreet
ORKL-0539I and II
Prrcel lj
Thc Nor& 550 fuet of the wsst l& of the Southeast u4 of Sostim 36, Tormship 39 soutl,, Rmge ZEast lilillmatc Mcridian, Kt&rflth Couutg Orogffi.
EXCEPTING thcretrom that-portion oonvcyed to the unitcd Statcs of Amcrica by Deed rccordedAu$st 9, 1909 in volume 27, page 294, M Rcoorils offi i -cormty, orrfr - --
Parccl 2r
A sftip of ltd for road purposer 60 ftet iE widtb lyins 30 fct on €arh sido of thc foltowing dcscntodcentar line:
9:gryye at a point onLto ll$rgar right orway linc of omgon state Highway 66 ar station180?+71; thnoccNorth 29"2E'5/' wcrt, 400 feet t*o*Nontl-iiJi3,n u/est,4gg fect to apointwhich is 3o fe€t East and lo feet North of ftc soutl qusrter "**i"its"rd; i6, i".rfip gs soutl,RaruE 7 Bffit ltrill8afite nflcddiaq Klanrath co*rv, or"pr; ur# No(hcrly aloqg a line wbich isparallcl to and 30 fect Ea*erly of tho $/est linc of the soufie"lt ili or..id s;rim3E, aTilrncc or1700 foeq thcnca Notth 4oo48'41" w€st J0 fee*, morc or hrs, b " point on said lveet liuo of thcSouttrsost U4.
oRKL-0540
lfl thrt porfion of Lor s, sectlon 16 Townslip lg south, Rrnge 7 Ert of tbc wfltrmettrMorldlrnr EXCEPT thc North 319 fset ttercoi*l l.ti rn*I porm*r""rv dercrlbed ls follorr:
It^$ning { a polnt ou fte wc* llne of r"ot 5, secfion 34 Touchlp lg sortl, Rrngr ? Erat o,f thcwlfirmue Mcrldlm finur whlc,t tls Northwcst sDrler of cald l.ot 5 btr|:l Hortt gol]g'22" Erst319'il1 foct d&tul; flrmct rlong tte *rld lYcct ltre of rdd i* is*t oq0e'tao lve:t d25.El ferto thc North brn& of Klrrn*th R vcr; tlcuoe rtang Xlrmrtt ruvcr UorO ?lc0grlfr E{ rt?l[l.g6feet; thercc surtt 76o39'45t nr$ 380.77 foet; tnmoe North 7755'55" nt't s{-ss-foeq fr*..Souah 82q01'05'Eert ?03.00 frcE therce Nortt ?rq!:I'ls!'Errt Z2t.6sfsB thcuoc south6'013'45'Prst 19&60 fecq thcuco south saofll'4Sp ILrt ci.zl r*ut, morc or leer to thr Erst linc offid Lot 5, Soctlon 36i S-ence{mg the rrid Eart line of midl,m i, North 0{3'0?,r E13a 4glJI
{qT to a point hom wllch tte Nor[h qurrtr mmer of rrld sscltor 36 bcrrs Nortt 0q03'07', E."t319.00 foct dhruu ttc,noc Norrh 99043'16r lycrt ll4r.lt fu.t;; r, hB to ttc polnt ofhdnulng.
Rocky Mountain Power
Exhibit No. 2Page210 ot221
Case No. PAC-E-21-01
Wtn$s: Timothy J. Hemstreet
ORKL-0541
Int 6 ereept ttret portlon thereof vhleh lles norther\yof the fol.lortng descrfted ll,ne r Cmenctrg at a llolnt
Located on the tlne betreen Gort. Iots t ond 6, aatd
pofut betrg locateil Sqrth 0n 03t Crfil tf,Egt, .3.19.0 festfrm ths nortlr quarter corner of, Sectlm 36t theuce.gouth 89' b3t L6" East, 640,0 feet to a pfrt; thenccln a eoutheaeter\y d.Lrectlon to tttq Dorthrcst correrof GoYt. Idt ? of saJ.0 Eegtton 36.
subject to road easement granted to Klamath County l-26-68
oRKL-0542
A trrct of land tr Lot l, ($Wl/{) of Socdor 3l' Townrllp 39 South' Rrrye 8 Ertt of thc
\Vllhmcttc Merldlu, dpcdbod rr folbwr:
BcglnniEg rt thc lrtGnccdon of ttc ccntcrlinc of Rtvsr $truot md ttc lilatcrly bomdrry lhc of
Brlg[ton-lvcnrc (Hgwry 6Q to thr torvr oflDolcu, (nw lfuro) Orqol vhlct poLt b mrr]ed
rrttt rE lrol pipc; thae Nortt SFl[t Wcrl rtory ltc catcrllnc of reld Rlvcr Stncct' profcctdr r
dhtruce of trt94.5 fcr$ Ocrcc Nortl t252' Errt 372.1 fcct to &c truc pdtt of bcgbnlngS t[cmcc
cortlnulng Nortl t}95o, Errt t59.t fcct, morc or lcer to tle ncan wrtcr [ne of t[e Klrnrtt Rtvtn
ttone Nortt 4lfrtA) lYert 179.7 fcet rloug reH meln wdcr llnc b tte Errtcrly boundrry of ttc
tmct of hd dercrlbcd lr Book }{ rt page 36, DGd Rccordr of IOrmdL County, Orcaor; tLocc
rlorry thc Eratcrly rnd Soutterty boundrrlcr of nld percct rr followl: Sonft 41047' Wcct 5t.9 fcct
rnd North glqfi Wctt 321.1 fcct to thc Ertcrly boundrry of tf,c tnct of lrnd dcrcribed h
Volnmc 130 of prge4f4 DGed Rccordt of lflrnrtt Comty, Ortgon; ttcucc Sortl 01)5t Eact
elorg rdd Uounarry e dlrtrnce of 4il.0 feeg ttcnce Sonth 71016' Eltt27!.3 fcct to tle truc polnt
of bcgirnlng
Rocky Mountain Power
Exhibit No.2Page211 o'f 221
Case No. PAC-E-21-01
Vvitness: Timothy J. Hemstreet
CALIFORNIA PARCELS
CASI-OOO9
""fr{"
6-au*tt#-rt
r,8g+ Arr*ti*f-f.-
.fr.a2:.lrl:
of Bcction.,fr,cttt t.J.t ,..-. itl
-
.+A.Lt*Ihrlh,
frmtc Ncridian,
conlaining ,r%i" ',4lrrr.4.r.l .trr./ 1r.,.r./,, r ,f2o.,
,.**.@,';ffi trtr::#;ii::"#";:,#:1f"fffi flJ;iorthe
present reservoir.
CASI-0011
Lot lour l4l c.r0 the uouth :iuet qui:.rter of the Soufi:
.Test qui:rtor (SAt of Slh) e.ni the Souili hi:lI ol.the $outli $Lst
querrtor (s{' of '$ea} of Loeti or, fhirt;.r (lio) , .:otrnslrip r,ort;.-e i,ght
(*e)'itorth :le,n6e i'our (4) l7ost, t.tount )ietlo i,ieriilt{:n;
CASI-OO2O
Soutn trrrf (tl)
ol llctlon thlrt?-6tr. lltll **, rnEHF*-&ri&tlGL!-JlFrIXnntL- nun ?ar.r I r I
Jount-DtaLlo*---lrrt r*i llqiitrm, mrtontrg-.J[h.erlJt&dlc{.r1flarn-,ane .r !/100- (.il6-17}-
; rcccth|:to-itrillnlt.+€tri., foblh&rwr;-
CASI-OO2I
tha narthrost ouBrtor of the aouth-rBBt quarter (Hfit of 8lt+) of Sscttonthlrtrelx (se), fgnBshtp, forty-elght (48)ilprth, Bange ftga (5) f,eet, llorrnt Dlablo
Baee and lferldl*u,
Rocky Mountain Power
Exhibit No. 2 Page 212 ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
CASI-0024
Eeclnnlng at' a pdfnt oo th-ii qu,aftor eftDasffi
Ilue ruintng iorth gnil gouth ln Ssotlon 56 [. 48
il;B"ng; E .feet. ilr{gb -le. eeveqlsel F-u+f,foil trs ena
asven-.Ieuthg (t?0e.?l feet aouth of tho-quarter
Isotlon oorntr qn thc aorth ].lne'of aalfl aeottor
56. thrnce norti-tii-ty-tio iegr-ees, clgb'tceu anil
oni uart nlnutes ( 6qr- lgt' I caet tr-cnty frlE Brro
ilrac-teathg (e5.S)- feet to thc begllrnlqg of e oulY,..
rihose total diflestlon augle 1s thlrty oggroee ano
tbtrty four uliutog (gO" 5{r I to t}e r16ht^. !oF:1tcnttl la ono hunflred- trgnty 14d. three-tP1*t]: Itr^:9tseI, raillue la four hunilrrd fort! ruit elEPIy TouTnunaiailtm l4t6.04 I feot aud icqih 1E trq hundlrro
thtrty flva ma ona'tenth (gs6:ll faat' thsnce Porlt
Rocky Mountain Power
Exhibit No. 2 Page 213 of 221
Case No. PAC-E-21-01
VMtness: Timothy J. Hemstreet
0r legg.
Rocky Mountain Power
Exhibit No. 2 Page 214 ol 221
Case No. PAC-E-21-01
Witness: Timothy J. Hemstreet
CASI.OO25
(,1,* d**r,l'-t*# fiu *7t /-"'dill:('df^$l'D
ths foat Ealf, of thc l{orthrset qnartor lf}ffil^or Seotlon
Ihlrty onc {Ul} la Sornehlp Forty elBbt (4O) uoirtb of Esnge
tour ({l feat, ltount DXatlo l[ortrtlanl also all of tbat portlon
of Eeotlon lbtrty 3,r ($61 Iorushtp lorty Elght ({8) }Iorth
o!RargoFlvs16)t{est,ltountDlablo}Ierldlaa'lglu8gontb
of, the Etamtb BlYer, aavlug anil alocBt lng the xorthveet
qusrter of tha Boutbrost quarter tilIt$nt) d c810 Sootlou
lblrty gl8 (561.
CAISI-0026
and Saottoa P"6 of tlre Barr€ 'llovnahtp
Rocky Mountain Power
Exhibit No. 2 Page 215 ot 221
Case No. PAC-E-21-01
VMtness: Timothy J. Hemstreet
Snd ranga to a Folnt On tha
Qent.er llno pf fal',I Croski thenoq,'Soutbraete.qly dlolg lhe C6nterl{aq of FaIl' Creekp to th6 irolutof lntemeo.tlon of' the CcntarIIne of FaII Crsek and ths narathBlyer; thenoe IIorthEEBt€rIy alotrgthe Center ltne of the f,lauath
,Bfve! to the Eagt' Ilne .of tne EalASeotIoI $6; theuoe northe.{Ifl etongsstd East ltue pf saLd Seetlou $6i
1190.0, fast to the Bolnt of begloilog'
LESS THE FOLLOWING:
Afractlonalportlomofthe$outheaetquarteroftfiBsouthaast
<lunter of Seetino-af , m*tnrp [S farih' ]*su ] Iftat' I'bunt
Dt"5lo tdertittan, betng *r* p"itlcularly descrlbeil ap follsrel
I
and subject to a telephone line easement to PT&T 9l28l8l and subject to a 30'pipeline
easement to the City of Yreka&l30l68.
CASI-0027
fhe Eaat ha1f, of the $outlurert guartot (eb of Sttl') s,nd tho Bouth-
ouet quarter {Sf}) of Seotion Nine (9); the t{ort}wsct guarter of
tho tlorttnrest querter (ffi of $T-]') of Soction Sixtcon (16), sd
the East tralf of the ttortfroast qiarter (Elr; of Nd+).of Sootlon
Savenbeen (12) fr, Tonrrahlp Forty-s6ry6n (l+7) Uorth (N) of Rengc
ftvc (5) Tleat, Xount Dlablo Baas and llcrlillun; aatrlng rnil eroaptlng
that portion thcreof hsrotoforE Eonlreyed to the Klesrath Laka
Hntl.roatl Cotryany;
and subject to a telephone line easement to PT&T 10/13/80 and a 20' road
easement to James Liskey.
Rocky Mountain Power
Exhibit No. 2 Page 216 ot 221
Case No. PAC-E-21-01
\Mtness: Timothy J. Hemstreet
CASI-0028
Tbe Seat HaIf of the Eaat EaIf, of the l{ortbroat
Quartsr (f,* Bt llfifl aril tbo ltegt Hst! of tL€ f,eatffEtf (ll+ f,ill, au0 aleo thEt portlo+ gf-thg Eaet Halrot nait-Esii'of trorthvest Quirter tEt El Uftl of
Saotlou trluc (gl ln f,rnahtB Borty-siTon (*?l Northof Batrgs Elve (5) ?art, l[outrt Dlablo uerliltsn, -nh.loh1les o[ tne reste=l*y slde of the oenter l;lm of ths
Elapath Blvsr, rhere eal{ rlrer flora tbroqh sald'sub-allrlsloa; subJeot, hcre?er, to rlgbt of ray one
hundrs0 (IO0l taat ul4er aouoit ga1d, geotlonr hersto-fore conveyeil to Klamsth Iake Ballmaf, Cmltany by
Central Paoltto Ball;ay Coryary and Unttefl Btatesftrrgt Conpary of Ncr Torlr, Dy ilosil ntrnbereil *IS-C '0ateil tugust 16, I90S.
CASI-OO3O
the Eaet half of the }lorthwest Euart€r, the South-
roet quartor of thg ilorthrest quarter and , ths
llorthiaet quar[er of tho Southreet guarter of
Sectlon 54. Tonnshlp l8 llorth. rango 5 l'Iest, M-D'[I.
Callfornlaq loss lhe Eiauth Iake Hallroafl Companyrleht of way.
subject to a20 road easement to H.J. Rhodes 6112164
CASI-0031
rll .t trctlm lhragr-lrltl lt?li lrttum.t qlr t l lftllr l!3tl tr lll rt lmtlr.|l
qI.r3.r ltl rf !I1, rla t'trtL'.rt quttrt sf lfltlllrl ltsrr}lr l]lt rt ll+l rr t..tlrt
t[lrt -tLro l!tl, lornruD tllty-jg11 (all ltrtl. trt ,ltt ltl ftrtr lrut llrlb
Il.tt rla l.rlltur 'lloetrldl. !l!. llllr.l lqrlur .!a oorrco tlE.ool &r..r rort .r ulll
t.3ot[r! rtt! rtr^:l rt&tr, ;rlrllrgr. ..a rrD$t !r!ot. ttat r!t, ).frall| ll lr rg
rtm.?rtrtrfrf*t .t]lJect !.rfirrf tc uTrl6btrr ltur.F r!.EDtteaaa alaful rt D.t.
rlttrl, )y u7 rtbs trrr.r. t5.! tb rrtl tlm3 tnttr, llott rrrl l3r Lltll d.r mftr]
tc tb. malltl'. tbt lltrt Flt, ridu ot tr trll llrllr fu t; rnF.rllratr m
rrll prrlrtr l; rrbtfla attrl ..a lrlr;Lln llrrr
tlctltt!0 Srcr tbr t'lllrlaai .cc?rrrn. r rl6bl rl nt ri Drto rlltl lrt rr0 ral
frfl rrrrlr* .lrr brttllt .rtrULL.l Grilt, h.f,
less the following sold to Rhodes and Roberts 4113164:
theN % and the SW % of Section 27, Township 48N, Range 5W, MDM.
Rocky Mountain Power
Exhibit No. 2 Page 217 of 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
CASI-0032
It lortb hll d lbr Soutf brlt ct lhr lorti frrt Qrrrtrr rf lmtlrl lrralrrrt&
ral lLr itrt arlt tt lrcttro t!trtr-t[r,ar. lo|lrltt tcttr-ai3lt, lortlr lrran tlft lrtll
rta tL. fcrt! tmt qtrrtlr cl ttra fcltl ttat guultr It lrollrj lrnrr trrgtfft tffr-
rfirl torlDr lr&Gt ,l?. flrt, Itu.ot Dtrulo lrrtlulr t0&.t lt t!. rEtf. .C lta torm{
tliotl tlrttlll.
lorrlhrr rltt rll llttr rlgitlt rttar cttcE.t r..a illar lrlrll.a.r tr.r.r$o ralar{.
tnl .' 1l rayrltl rrDrrtrluoar
CASI-0033
Ihc $ourhoasr quurrer j [h] f,auu hslr ur tr]' Southrresl
quartcr und uha $ourh hai.f or thg l{or.thne$t,,luortcr oI Sgctrort
F'our'r :ionnshlp Forr.y-e averr l{Orth, Itange Tlye lifestr r llouRt UlurU o
Lle.rrdtax' Eerrng uno exoepilrrg rhat porrl.oa of lEB Ssrrtneaet
{luarLer oI ths Uo}thnecl ituar.tcr or sslo $ecrlon'trorE lyrng
lorrn€rlI 6no rresrerl.y or the centEr ilne oi tne Klamlh i(lyBt
gonl,Etnlng 010 acreer ffiorE or LeE$
CASI-0034
All thdt lrortloo of thc Eeet hBIf {x*) of th6 EBBI halt,
(E*l . of tha f,orthtJest quartcr (ffi| of Sootlon lLn (9), I{rlng on
tbe itaat sillo ot tlrc l0anth 8lvsr rfrcre lt ftorE throngh sal.al land;
:
. Se Uorth Eaat quartsr lilEll of Esotlon tltruo (g)t tlre [orth half
(f*l of, thc Xortb Hest guarts (ffi*l ana thc f,oet L81f, (EL) of tho
' North Daot quertet (Et) of Esstlo-n {en {1O} i BII Lu Sorra}rlp
. lorty-asvgn (4?1, [orth of BBug€ Elve (61 [ogt, Ift. Dta]Io l[er{.ttaa,
, oontElnlng ln a,Il 540, aolos, Eore or l.eee3 togetLsr rlth aLI
rater rlghtr, rater il.tobs sni rator prtlvlloBes resd, or ortoyeit on!
the ebove itgeorlteil BroBorty , otr ln oounrotLon tbsrenlth. 1art1ou3.a,r-
l1r tuoluetug all rlglrts of satil. tlrtt Barty la. thc vators of Sogus
' Greetsr
Rocky Mountain Power
Exhibit No. 2 Page 218 ot 221
Case No. PAC-E-21-01
\Mtness: Timothy J. Hemstreet
CASI-0035
ttha Soutb Bast (hrarEer ot tha South Eaat quirtsr of gootlon r
fhlrty-ttor llo;oahtp Forty-slgbt Northr Bange Flve tlsatr llouat Dlablo i
llcrtiltan.
Iogether rlth all ratsr rlghta, rater dltobEa and uatcr
prlvllsgea thoreunto bslolrglng or tn aa5nleo appertalulng.
CASI-0036
AIf that portlon of the sqrth East Quarter of tbe llorth
flleet Slartar' (SEt of Nfill of gectlon X'our (4) TownaLtg Forty'
36v€tr {4?) Horth of Rqnge flve t$) 'rlestr }tount Dlablo l{erl(tlrn,
lylng on ths l{orth and iloat nld,c of the oenter of tbc, trl,anath
nlvor,
cAsr-0038
The East half; the South',IBBI qusrt€r, th Eest half c.rf, ths
North :'Iost Qprarter ard the $outh ilest Quarter of ttn Horth ilest
quarter of Seotlon dlxteen ln Bonnehlp Forty-Eoven Northr llange Flve
'.I€st, llount Dlauto ltrerldlant
CASI-0039
Tte l{orthoast quartcr (}IEi[} of tho southreet quartor
(stv*! of $eotlon fblrty-frur (o*1 , Tormebtp Forty-elEht (*B]
North of Eango $lvo (51 'r{ert, },lolmt Dlablo uort0lanr oontalulng
forty asr6a of la.lrd.
Rocky Mountain Power
Exhibit No. 2 Page 219 ot 221
Case No. PAC-E-21-01
Wtness: Timothy J. Hemstreet
CASI-OO4O
Those portions of the Southeast 1/4 of Section 29 and the Southwestll4 of Section 28, Township
48 North Range 4 West, M.D.M., known as Siskiyou County, California Tax Lot 004050390;
Those portions of the Northeast 1/4 of Section29 andthe Northwest ll4 of Section 28, Township
48 North Range 4 West, M.D.M., known as Siskiyou County, California Tax Lot 004050380;
That portion of Section 28, Township 48 North Range 4 West, M.D.M., known asSiskiyou
County, Califomia Tax Lot 004050060;
That portion of the Northwest l/4 of Section 33, Township 48 North Range 4 West, M.D.M.,
known as Siskiyou County, California Tax Lot 004040010;
That portion of the Southeast ll4 of Section 21, Township 48 North Range 4 West, M.D.M.,
known as Siskiyou County, California Tax Lot 004360040;
That portion of the South 1/2 of Section2T, Township 48 North Range 4 West, M.D.M., known
as Siskiyou County, Califomia Tax Iot 004300020;
That portion of the North 1/2 of Section34, Township 48 North Range 4 West, M.D.M., known
as Siskiyou County, Califomia Tax Lot 004040060;
Those portions of Section 35 and Section 36, Township 48 North Range 4 West, M.D.M., known
as Siskiyou County, Califomia Tax Iot 004030070;
CASI-0042
Illra routheaat qua.rtar af ths aoutheect qu8!rt6t of Scctlon 33r
f.ownshlp [8 lonthr Range 5 llest end tht nontheert quart#r of
Bebtlon-h, Ioraahlp h?-f,ortJor Ren8c $ tleat, lf.Il.!I.r .Ed
no thrcrt qurrtcr of sout"htraat quartorr tfirtb brlf of louthhelf rnd aortbqett quEirt r of eouthtart quarttr of S,eatlon,5, $otrmhJ.p hB ilorth, no"tge $ Ucrt, Il.D.t{.
CASI-0043
flre Scrrth Half (S fle) excel,t the south ha.If of the Ecuthhelf o,f the sqrihwelt-quarter (s t/e s r/a su 1/t+) or
Soctlon 26, Tomship lr8 Uortn, nange I West, l,tout PIabIoMerld.lan, Sisklyou Cornty, CellfunLe, corrtalnlrg 28O
acr€g, more or lsss,
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