HomeMy WebLinkAboutKetchikan Public Utility - Whitman Lake Hydroelectric Project - FERC Review 2009126 FERC ¶62,205
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Ketchikan Public Utilities Project No.11841-002
ORDER ON OFFER OF SETTLEMENT AND ISSUING ORIGINAL LICENSE
(March 17,2009 )
INTRODUCTION
1.On September 10,2004,Ketchikan Public Utilities (Ketchikan),a municipality
pursuant to section 3(7)of the Federal Power Act (FPA),1 filed an application for an
original license to construct,operate,and maintain the 4,600-kilowatt (kW)Whitman
Lake Project (project),pursuant to Part I of the Federal Power Act (FPA).2 The project
would be located on Whitman Creek in Ketchikan Gateway Borough,approximately four
miles east of the City of Ketchikan,Alaska.The project would occupy 155.8 acres of
lands of the United States --155 acres in the Tongass National Forest,administered by
the U.S.Department of Agriculture,Forest Service (Forest Service);and 0.8 acre
administered b y the U.S.Bureau of Land Management (BLM).3 As discussed below,I
am issuing an original 50-year license for the project.
BACKGROUND
2.Public notice of the application was published in the Federal Register on
December 7,2005.The Alaska Department of Fish and Game (Alaska Fish and Game),
Ketchikan Electric Company (Ketchikan Electric),and the Forest Service filed motions to
intervene,which were timely and unopposed and therefore were automatically granted 15
1 16 U.S.C.§796 (7)(2006).
2 16 U.S.C.§§791a-825r (2006).
3 FPA section 23(b)(1),16 U.S.C.§817(1)(2000),requires the project to be
licensed because of its location on federal lands.
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days after they were filed,pursuant to Rule 214(c)(1)of the Commission’s Rules of
Practice and Procedure.4
3.On November 30,2005,the Commission issued public notice that the project was
ready for environmental analysis and solicited comments,recommendations,terms and
conditions,and prescriptions.In response,comments and recommendations were filed
by Alaska Fish and Game,Ketchikan Electric,and the Forest Service.
4.An Environmental Assessment (EA)was prepared by Commission staff and issued
on June 19,2007.Comments on that EA were received from Ketchikan;Southern
Southeast Regional Aquaculture Association (Southern Southeast Aquaculture);the
Forest Service;and the Alaska Department of Natural Resources -Division of Mining,
Land and Water Resources Section.
5.On February 8,2008,Ketchikan filed a multi-party Settlement Agreement
(Settlement)with the Commission,amending its proposal.5 The Settlement was reached
between Ketchikan,Alaska Fish and Game,Alaska Department of Natural Resources -
Division of Mining,Land and Water Resources Section,and Southern Southeast
Aquaculture (collectively,the Settlement Parties).The Settlement was publically noticed
for comment on February 11,2008.6
6.On July 2,2008,Commission staff issued a final EA for the project,analyzing
Ketchikan’s amended proposal.The final EA7 considered both comments on the June
2007 EA and on the provisions of the Settlement.
7.The motions to intervene,comments,and recommendations have been fully
considered in determining whether,and under what conditions,to issue this license.
4 18 C.F.R.§385.214(c)(1)(2008).
5 The “Notice of Settlement Agreement and Soliciting Comments”was issued on
February 11,2008.
6 73 Fed.Reg.9,116 (2008).
7 Unless otherwise specified,EA refers to the July 2,2008 final EA.
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PROJECT DESCRIPTION
A. Project Area and Existing Facilities
8.The Whitman Lake H ydroelectric Project would be located on the southeast end of
Revillagigedo Island in southeastern Alaska,approximately four miles east of Ketchikan,
within the Whitman Lake and Achilles Creek watersheds.The watersheds in the project
vicinity are surrounded by undeveloped coniferous forests,consisting of mountainous
ridges and peaks located almost entirely within the Tongass National Forest.Whitman
Lake,the project’s reservoir,has several small,unnamed tributaries,with only one
significant tributar y,Deer Creek.Deer Creek is 2.3 miles long and enters Whitman Lake
from the northwest.
9.Whitman Lake was a naturally formed lake prior to impoundment.In 1927
construction of the 39-foot-high,220-foot-long concrete gravity arch dam (Whitman
dam)with a 40-foot-wide Ogee spillway,increased the reservoir’s area to 0.23 square
mile (148 acres).Whitman Lake has a normal maximum water surface elevation of 379.8
feet mean sea level (msl).The Whitman Lake watershed is 4.11 square miles,providing
an average annual inflow of 75 cubic feet per second (cfs)into the lake.Whitman Lake
tapers from its widest point of 2,200-feet in the west to its narrowest point of 100-feet
wide at Whitman dam in the east.Whitman Creek exits Whitman Lake at the dam and
continues 4,000 feet to its mouth at George Inlet at the Pacific Ocean.Whitman Creek
serves the Ketchikan Gateway Borough’s domestic water supply at a diversion located
approximately 2,800 feet downstream of Whitman dam (1,900 feet downstream of the
Whitman Creek’s confluence with Achilles Creek).
10.Achilles Creek,a tributary of Whitman Creek,originates northeast of Whitman
Lake and enters Whitman Creek approximately 900 feet downstream from Whitman dam.
The 0.92-square-mile Achilles Creek watershed provides an average annual flow of 17
cfs.
B.Whitman Hatchery
11.In 1977,Southern Southeast Aquaculture received from BLM a recreation and
public purposes lease for the construction of a fish hatchery (Whitman Hatchery).8
8 The hatchery was built on land formerly occupied by the New England Fish
Company’s powerhouse for its hydroelectric project,which operated between 1908 and
1957.In 1957,the City of Ketchikan purchased the h ydroelectric facilities and shortly
thereafter retired them.The powerhouse was removed in 1963-1964,and any remaining
facilities associated with the powerhouse were demolished in 1978.
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Salmon incubated and/or reared at the hatchery are used to augment natural salmon
production and support the area’s commercial salmon fishing industr y and sport fishing.
The hatchery’s production was estimated in 2001 dollars to be worth $3,000,000 annually
to the Ketchikan economy alone.9
12.The Whitman Hatchery currently draws approximately 30 cfs of water from
Whitman Lake through a variable-depth intake and a deepwater intake.10 The water is
carried to the hatchery through two 2,260-foot-long pipelines.
13.Because Whitman Lake is the hatchery’s sole source of water,Southern Southeast
Aquaculture is concerned that use of that water to support hydroelectric power generation
could jeopardize the hatchery’s water supply.As described in more detail below,
Ketchikan proposes to construct and operate the project in a manner that protects the
Whitman Hatcher y’s water supply.
D.Proposed Project Facilities
14.The Whitman Lake H ydroelectric Project,as amended by the Settlement,would
incorporate Whitman Lake and Whitman dam.In addition,Ketchikan proposes to
construct new project facilities consisting of:(1)a new deep water intake at Whitman
dam capable of operating as a siphon with utilization of a vacuum pump,which would
provide a source of cooler water to the Whitman Hatchery,even at low reservoir
elevations;(2)a new surface water intake to supply Unit 1;(3)a 15-foot-square valve
house at Whitman dam;(4)a 40-foot-square powerhouse located approximately one half
mile downstream of Whitman dam that would contain two turbine/generator units (Unit 1
would be 3,900 kW and have a maximum h ydraulic capacity of 152 cfs and Unit 2 would
be 700 kW and have a maximum hydraulic capacity of 32 cfs);(5)an access road from
Whitman dam to the powerhouse;(6)two 2,450-foot-long penstocks from Whitman dam
to the powerhouse,one 60 inches in diameter and ending at Unit 1 and the other 36
inches in diameter and ending at Unit 2;(7)a tailrace channel (approximately 100 feet
long)from the powerhouse to Herring Cove with a 30-foot-wide concrete barrier weir to
prevent anadromous fish from entering the tailrace;(8) a 30-foot-diameter head tank
connected to the hatchery via the primary hatchery supply line (not a project facility);
(9) a pressurized supply line to pass water from the Unit 2 penstock above the
9 August 17,2007 letter from Rod Neterer of Southern Southeast Aquaculture to
Kimberly Bose,Secretary of the Commission.
10 Southern Southeast Aquaculture holds a water right for up to 39 cfs from
Whitman Lake.
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powerhouse via a pressure-reducing valve to the head tank;(10)a switch yard adjacent
to the powerhouse;and (11)a 1,500-foot-long,34.5 kilovolt (kV)transmission line.11
15.Ketchikan would also construct:(1)a 7.5-foot-high,25-foot-long concrete
diversion structure on Achilles Creek (creating an impoundment with less than 1 acre of
surface area)with an 8-inch-diameter instream flow release pipe and a 3-foot-wide sluice
pipe;(2) a 2,500-foot-long,24-inch-diameter pipeline to divert up to 20 cfs from Achilles
Creek diversion to Whitman Lake;(3) an access road from the upper penstock to the
Achilles diversion;(4)four stream flow gages (three on Whitman Creek and the other on
Achilles Creek);12 and (5)four pipeline-flow-metering devices,located on each of the
two penstocks,the Whitman Hatchery’s 12-inch-diameter rearing and incubation pipeline
(discussed below),and on the primary hatchery supply line downstream of the project’s
head tank.
E. Proposed Project Operations
16.The Whitman Lake Project would utilize water from Whitman Lake and indirectly
from Achilles Creek for hydropower generation.With the installation of the diversion
dam on Achilles Creek,water from Achilles Creek would be impounded and diverted (up
to 20 cfs)to Whitman Lake via a pipeline.Ketchikan proposes to release a minimum
instream flow in Achilles Creek downstream of the diversion of 1.5 cfs,or inflow,
whichever is less.It also proposes to release a minimum instream flow of between 6 and
11 cfs from Whitman dam (or via a release point from the Unit 2 penstock,if the
Whitman Lake’s surface water elevation is below 364 feet msl)to the 4,000 foot-long
lower Whitman Creek.Water for power generation would be made available to the
project through the use of three intake structures located in Whitman Lake:(1)a new
screened surface intake to supply Unit 1;(2)the existing variable intake to supply Unit 2;
and (3)a new deep water intake also to supply Unit 2.
17.Water for Unit 1 would exit Whitman Lake through a new screened intake,pass
through Whitman dam,flow through the valve house at the base of the dam,and flow to
11 The primary transmission line consists of 200 feet of new 34.5-kV line and
1,300 feet of 34.5-kV line mounted on top of a reconfigured existing 12.47-kV
distribution line and associated poles (owned and operated by Ketchikan).The existing
12.47-kV non-primary distribution line would continue to provide service to the Whitman
Hatchery and other customers along the alignment.
12 Although Ketchikan proposes to install four stream gages,for reasons discussed
below,this license requires the installation of two of the four proposed stream gages.
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Unit 1 through the new 60-inch-diameter penstock.Upon exiting Unit 1,water would
flow into a tailrace channel and discharge into Herring Cove upstream of the Whitman
Hatchery’s fish ladder facilities.As discussed in further detail below,the tailrace channel
would be constructed in a manner that would prevent the false attraction of salmonids
returning to the Whitman Hatchery.Finally,Unit 1 would only operate when water
levels within Whitman Lake are at or above 370 feet msl.
18.Water for use at Unit 2 would be drawn from Whitman Lake via the existing
variable intake and/or the new deep water intake.Water from these two intakes may be
mixed,for reasons discussed below,within the new valve house that would be located at
the base of Whitman dam,and delivered to Unit 2 via the new 36-inch-diameter
penstock.Water discharged from Unit 2 would flow to the new head tank for the
Whitman Hatcher y for use,as discussed in greater detail below.Water in excess of the
Whitman Hatcher y’s usage would be discharged from the head tank to the Unit 1 tailrace.
Unit 2 would operate continuously,except for periods of maintenance and unplanned
outages,to provide a continuous supply of water to the Whitman Hatchery.When Unit 2
is not operating,water from the Unit 2 penstock would be bypassed around Unit 2
through the new pressure reducing valve and delivered to the head tank.
F.Whitman Hatchery Operations
19.In addition to the water provided from Unit 2 at the head tank,the Whitman
Hatchery would continue to draw water directly from Whitman Lake to supply its egg
incubation.The two existing pipelines that currently provide the Whitman Hatchery with
its water supply would be removed.Ketchikan would install a new 12-inch-diameter
incubation pipeline to replace the Whitman Hatchery’s existing 11-inch-diameter supply
line.13 Water currently being provided to the Whitman Hatchery via the existing 24-inch-
diameter pipeline would alternatively be supplied by the Unit 2 penstock after it has been
utilized at Unit 2 for power generation and discharged to the head tank.As mentioned
above,the Unit 2 penstock would be equipped with a pressure reducing valve to allow for
a continued supply of water to the head tank when Unit 2 is offline for maintenance or
unplanned outages.
20.To continue to provide the hatchery with the ability to manipulate the temperature
of the water it receives from Whitman Lake,water being drawn from Whitman Lake for
13 As provided for in the Settlement,Ketchikan agreed to install a new 12-inch-
diameter incubation pipeline for the Whitman Hatchery;however,this supply line would
not be a project facility.As such,operation and maintenance of the incubation line
would be the responsibility Southern Southeast Aquaculture.
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use at Unit 2 would be supplied b y the existing variable intake and the new deep water
intake.Inflow from these two intakes will be able to be mixed within the new valve
house before being delivered to Unit 2 and the downstream head tank.This will allow
Ketchikan to provide water at a temperature conducive to the Whitman Hatchery’s needs
for the rearing of salmonids and within the ambient temperature limitations of Whitman
Lake’s water.14
G. Project Boundary
21.The proposed project boundary would encompass federal and non-federal lands,
and enclose Achilles Creek diversion dam and impoundment,pipeline and associated
access route,Whitman Lake and dam,the penstocks and associated access route,the head
tank,powerhouse,tailrace channel,the primary transmission line,15 the Whitman and
Achilles creeks stream flow gaging stations and each of the four flow metering devices,
and (as discussed below)project recreation facilities (hiking trail,parking area,and
information kiosk).
SETTLEMENT AGREEMENT
22.As noted previously,a settlement agreement was reached between Ketchikan,
resource agencies and Southern Southeast Aquaculture.In general,the Commission
looks with favor on settlements in licensing cases.When entities are able to reach
settlements,it can save time and money,avoid the need for protracted litigation,promote
the development of positive relationships among entities who may be working together
during the course of a license term,and give the Commission,as it acts on license and
exemption applications,a clear sense as to the entities’views on the issues presented in
each settled case.16 At the same time,the Commission cannot automatically accept all
14 By varying the amount of water provided by the deep water intake and the
variable intake,Ketchikan would be able to provide tempered water ranging from the
cold water of the deep water intake to the warmer water of the variable intake,providing
optimal water temperatures to the Whitman Hatchery for rearing and growing of
salmonids (e.g.,15 cfs from the deep water intake with an ambient temperature of 5
degrees Celsius mixed with 15 cfs from the variable intake with an ambient temperature
of 15 degrees Celsius would result in the deliver y of 30 cfs at a temperature of
approximately 10 degrees Celsius to the Whitman Hatchery).
15 The revised Exhibit G drawings filed May 1,2008,did not include the
transmission line in the project boundary.
16 See Settlements in Hydropower Licensing Proceedings under Part I of the
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settlements,or all provisions of settlements.Section 10(a)(1)of the FPA requires that
the Commission determine that any licensed project is “best adapted to a comprehensive
plan for improving or developing a waterway or waterways for the use or benefit of
interstate or foreign commerce,for the improvement and utilization of waterpower
development,for the adequate protection,mitigation,and enhancement of fish and
wildlife (including related spawning grounds and habitat),and for other beneficial public
uses,including irrigation,flood control,water supply,and recreational and other
purposes referred to in section 4(e).”17
23.The Settlement establishes measures for the protection,mitigation,and
enhancement of resources to be potentially affected by the project.The Settlement
includes nine proposed license articles for inclusion in the original license (Appendix A
to the Settlement).The license does not include the nine proposed license articles,as
written.Rather,this order includes requirements consistent with the agreement and the
nine proposed articles except for two:(a)the installation of four stream flow gages;and
(b)locating the release point for minimum instream flows to lower Whitman Creek 700
feet downstream of Whitman dam.This license also includes,with certain modifications
the proposed Dry Conditions/Low Reservoir Contingency Protocol.
24.On Ma y 20,1999,the Alaska Department of Environmental Conservation (Alaska
DEC)filed a letter with the Commission waiving all water quality certifications for all
Alaska hydroelectric projects.18
WATER QUALITY CERTIFICATION
25.Under section 401(a)(1)of the Clean Water Act (CWA),19 the Commission ma y
not issue a license authorizing the construction or operation of a hydroelectric project
unless the state water quality certif ying agency has either issued a water quality
certification for the project,or has waived certification by failing to act on a request for
Federal Power Act,116 FERC ¶61,270 at P 2-12 (2006).
17 16 U.S.C.§803(a)(1)(2006).
18 The record in this licensing proceeding also contains correspondence from the
Alaska DEC,stating that Alaska DEC does not participate in the 401 certification process
as part of a FERC hydropower licensing proceeding.See email from Jim Powell of
Alaska DEC filed with the Secretar y on April 9,2007.
19 33 U.S.C.§1341(a)(1)(2006).
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certification within a reasonable time,not to exceed one year.Section 401(d)of the
CWA provides that the certification shall become a condition of an y federal license that
authorizes construction or operation of the project.20
COASTAL ZONE MANAGEMENT ACT
26.Under section 307(c)(3)(A)of the Coastal Zone Management Act (CZMA),21 the
Commission cannot issue a license for a project within or affecting a state’s coastal zone
unless the state CZMA agency concurs with the license applicant’s certification of
consistenc y with the state’s CZMA program,or the agency’s concurrence is conclusively
presumed by its failure to act within 180 days of its receipt of the applicant’s
certification.
27.By letter dated October 27,2008,Alaska Department of Natural Resources –
Division of Coastal and Ocean Management concurred with Ketchikan’s consistency
determination.
SECTION 4(e)FINDINGS AND CONDITIONS
28.Section 4(e)of the FPA,22 provides that the Commission can issue a license for a
project located within any reservation only if it finds that the license will not interfere or
be inconsistent with the purposes for which such reservation was created or acquired.
29.I have reviewed the Organic Administration Act of 1897,23 which established the
purposes for forest reservations,and the presidential proclamations that created the
Alexander Archipelago Forest Reserve and the Tongass National Forest.24 There is no
20 33 U.S.C.§1341(d)(2006).
21 16 U.S.C.§1456(3)(A)(2006).
22 16 U.S.C.§797(e)(2006).
23 16 U.S.C.§475 et seq.(2006).
24 The Alexander Archipelago Forest Reserve was created b y Presidential
Proclamation on August 20,1902.The Tongass National Forest was established on
September 10,1907,by Presidential Proclamation.The two forests were combined as the
Tongass National Forest on July 1,1908.The Organic Administration Act of 1897,16
U.S.C.§475 (2006),stipulated that all national forest lands were established and
administered only for watershed protection and timber production.
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evidence or allegation in this proceeding to indicate that licensing the proposed
Whitman Lake Project would interfere with the purposes of the Tongass National Forest
within which the project is located.Therefore,I find that this license,as conditioned,
will not interfere or be inconsistent with the purposes for which the Tongass National
Forest was created.
30.FPA section 4(e)further requires that Commission licenses for projects located
within federal reservations must include all conditions that the Secretary of the
department under whose supervision the reservation falls shall deem necessary for the
adequate protection and utilization of such reservation.The proposed Whitman Lake
Hydroelectric Project is to be located in the Tongass National Forest,which is under the
Forest Service’s supervision.
31.The Forest Service timely filed its final section 4(e)conditions on
January 27,2006.25 The final terms and conditions are set forth in Appendix A of this
order and incorporated into this license b y ordering paragraph (D).
32.The conditions require Ketchikan to:(1)obtain prior written approval of the Forest
Service for all design plans for project components;(2)obtain written approval of the
Forest Service prior to making any changes in any constructed project features or
facilities,or in the uses of project lands and waters that may affect National Forest
Service lands;(3)engage in yearly consultation with the Forest Service with regard to
measures needed to ensure protection of Forest Service lands;(4)prior to the
commencement of construction or modification of any project works,consult and
cooperate with the State Historic Preservation Officer (SHPO)to determine the need for
archeological or historic surveys and develop a mitigation plan if needed to protect any
discovered significant archeological or historic sites;(5)file with the Commission a
Scenery Management Plan,a Diversion Operation Plan,a Hazardous Substance Plan,an
Erosion Control Plan,a Soil Disposal Plan,a Fire Prevention Plan,a Noxious Weed
Management Plan,and a Project Construction Safety Plan;(6)construct,operate,and
maintain a guaranteed priority flow device,approved b y the Forest Service,as part of the
Achilles Creek diversion structure;26 (7)develop plans to install and monitor a water
25 Although portions of the land within the Whitman Lake H ydroelectric Project
boundar y are on lands of the United States managed by the Bureau of Land Management
(BLM),nothing in the record of this proceeding suggests that these lands are
“reservations”as defined in FPA Section 3(2),16 U.S.C.§794(2)(2006).BLM did not
file any section 4(e)conditions for this project.
26 An example of a “priority flow device”would be a pipe or orifice sized to
provide a specific volume of flow and located within the diversion structure at an
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measurement control structure or weir with a continuous recording stream flow gage,
in order to ensure the minimum instream flow requirements in Achilles Creek are met;
(8) acquire an easement to allow governmental administrative access to all project
facilities not located on Forest Service land;(9)acquire an easement from private
landowners for lands on which the Forest Service intends to construct,for public use,
portions of the proposed Achilles Mountain Trail;(10)maintain project facilities and
improvements on National Forest System Lands;and (11)obtain approval before use of
pesticides on National Forest System Lands.
33.Forest Service condition 9 requires Ketchikan to obtain an easement from private
landowners for lands on which the Forest Service plans to build a portion of the proposed
Achilles Mountain Trail.The Forest Service maintains Ketchikan will not have to
construct or maintain the trail developed on the selected easement.The Forest Service
has two routes under consideration.One location for the proposed trail would be two
miles northeast of Whitman Creek,and would cross about .25 mile of private lands.The
second proposed trail route would follow the Achilles Creek drainage just to the east of
Whitman Lake and would cross about .50 mile of private lands.Each of the proposed
trail routes would provide access from George Inlet at the coast to the peak of Achilles
Mountain.However,as Commission staff found in the EA,the Forest Service’s required
easement would not be along a route that would provide access to Whitman Lake.27 As a
result,while there is no connection between the Forest Service’s condition 9 and the
proposed Whitman Lake Project,condition 9 is required by this license in Appendix A.
SECTION 18 FISHWAY PRESCRIPTIONS
34.Section 18 of the FPA28 provides that the Commission shall require the
construction,maintenance,and operation by a licensee of such fishways as may be
prescribed by the Secretary of the Interior or the Secretary of Commerce,as appropriate.
No fishway prescriptions or reservations of authority were filed under section 18 of the
FPA.
THREATENED AND ENDANGERED SPECIES
elevation lower than that of the diversion pipeline or canal,ensuring that flows through
the “priority flow device”are provided before the diversion flows.
27 See EA at 93.
28 16 U.S.C.§811 (2006).
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35.Section 7(a)(2)of the Endangered Species Act of 1973,29 requires federal
agencies to ensure that their actions are not likely to jeopardize the continued existence of
federally listed threatened and endangered species,or result in the destruction or adverse
modification of their designated critical habitat.No federally listed species are known to
occur in the project area.
NATIONAL HISTORIC PRESERVATION ACT
36.Under section 106 of the NHPA,30 and its implementing regulations,31 federal
agencies must take into account the effect of any proposed undertaking on properties
determined to be eligible for listing in the National Register of Historic Places (defined as
historic properties)and afford the Advisory Council on Historic Preservation a
reasonable opportunity to comment on the undertaking.This generally requires the
Commission to consult with the SHPO to determine whether and how a proposed action
may affect historic properties and to seek ways to avoid or minimize any adverse affects.
37.To satisf y these responsibilities,the Commission executed a Programmatic
Agreement (PA)with the Alaska SHPO and invited Ketchikan,the Forest Service,BLM,
Ketchikan Indian Community,and the Organized Village of Saxman to concur with the
stipulations of the PA.Ketchikan concurred on July 7,2007,and BLM concurred on
June 19,2007.On July 25,2007,the Alaska SHPO filed a letter with the Commission
requesting clarification on stipulations in the PA.The Commission issued a revised PA
on July 20,2007,that included the clarified stipulation.32 The SHPO signed the revised
PA on August 2,2008.The PA requires the licensee to prepare and implement a Historic
Properties Management Plan (HPMP)for the term of any license issued for this project.
Execution of the PA demonstrates the Commission’s compliance with section 106 of the
NHPA.Article 423 requires the licensee to implement the PA and file a final HPMP
within six months of license issuance.Article 423 also requires that the HPMP include
Historic American Buildings Survey/Historic American Engineering Record
29 16 U.S.C.§1536(a)(2006).
30 16 U.S.C.§470 (2006).
31 36 C.F.R.Part 800 (2008).
32 The cover letter issued with the revised PA on July 20,2007,informed the
concurring parties that we would retain their signatures from the final PA and file them
and the revised PA with the Advisory Council on Historic Preservation,unless instructed
otherwise.
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(HABS/HAER)documentation of the National Register of Historic Places-eligible
shed located along the route of the project penstock.
RECOMMENDATIONS OF FEDERAL AND STATE FISH AND WILDLIFE
AGENCIES PURSUANT TO SECTION 10(j)OF THE FPA
A.Recommendations Within the Scope of Section 10(j)of the FPA
38.Section 10(j)of the FPA33 requires the Commission,when issuing a license,to
include conditions based on recommendations by federal and state fish and wildlife
agencies submitted pursuant to the Fish and Wildlife Coordination Act,34 to “adequately
and equitably protect,mitigate damages to,and enhance fish and wildlife (including
related spawning grounds and habitat)”affected b y the project.
39.In response to the November 30,2005 public notice that the project was ready for
environmental analysis,Alaska Fish and Game filed 13 recommendations,pursuant to
section 10(j)of the FPA.35 In the June 2007 EA,three recommendations were
determined to be outside the scope of section 10(j)and are discussed in the next section.
40.This license contains conditions consistent with portions of the 10 remaining
recommendations that are within the scope of section 10(j).These include
recommendations for:a final Erosion and Sediment Control Plan (Appendix A,
condition 16 );turbidity monitoring (Article 413); the employment of an environmental
compliance monitor (Article 412); a Hazardous Substances Plan (Appendix A,
condition 6);treating and removing oil and other contaminates from condensate and
leakage (Article 414); minimum instream flows for lower Whitman Creek (Article 403);
ramping rates in the b ypassed reach of lower Whitman Creek (Article 405); channel
maintenance flows for lower Whitman Creek (Article 404); minimum instream and
channel maintenance flows for Achilles Creek (Appendix A,condition 20;and Article
406); a stream flow gage in lower Whitman Creek (Article 410); screening of the new
Unit 1 Whitman Lake intake (Article 415); and a Biotic Monitoring Plan (Article 418).
33 16 U.S.C.§803(j)(1)(2006).
34 16 U.S.C.§§661-667e (2006).
35 Alaska DFG filed recommendations on January 20,2006.In their letter,Alaska
DFG 10(j)recommendation 4 was a duplicate recommendation and was contained within
their 10(j)recommendation 13.
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41.Commission staff made an initial determination in the June 2007 EA that
portions of two of Alaska Fish and Game’s 10(j)recommendations may be inconsistent
with the comprehensive planning standard of section 10(a)(1)and the public interest
standard of section 4(e)of the FPA.The first provided for an automatically operated
cleaning system on the Unit 1 intake screen and,if fry are documented to be present in
the intake area,to design the fish screen to meet National Marine Fisheries Service
(NMFS)criteria necessary to exclude fry.The other recommended that Ketchikan
monitor project-related effects on resident fish populations in the lower Whitman Creek
bypassed reach for five years following project construction and conduct adult salmon
behavior surveys at the location of the proposed tailrace discharge for five years
following project construction.
42.By letter dated June 20,2007,Commission staff advised Alaska Fish and Game of
its preliminar y determination and attempted to resolve the apparent inconsistencies.
Alaska Fish and Game responded by letter dated July 3,2007,and indicated they support
the Commission staff’s alternative recommendations in the June 2007 EA,as noted
above.Therefore,we consider the issues identified above and in our June 20,2007 letter
to be resolved.
43.In a letter filed April 24,2008,Alaska Fish and Game replaced their 10(j)
recommendation 6 with Articles A401 and A402 contained in the Settlement.
Commission staff made an initial determination in the final EA that portions of Alaska
Fish and Game’s revised 10(j)recommendation 6 may be inconsistent with the
comprehensive planning standard of section 10(a)(1)and the public interest standard of
section 4(e)of the FPA.36 These inconsistencies include a recommendation to construct
and maintain stream flow gages at the confluence of Whitman and Achilles creeks,and
upstream of any municipal water supply diversion.By letter dated July 2,2008,
Commission staff advised Alaska Fish and Game of its preliminary determination and
attempted to resolve the apparent inconsistency.Alaska Fish and Game responded by
letter dated July 11,2008,and concluded that as a signatory to the Settlement,they
continued to support the construction and maintenance of these two stream flow gages.
44.If the Commission believes that any such recommendation ma y be inconsistent
with the purposes and requirements of Part 1 of the FPA or other applicable law,
section 10(j)(2)requires the Commission and the agencies to attempt to resolve any such
inconsistency,giving due weight to the recommendations,expertise,and statutory
responsibilities of such agencies.37 If the Commission still does not adopt a
36 See EA at 155-56.
37 16 U.S.C.§803(j)(2)(2006).
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recommendation,it must explain how the recommendation is inconsistent with Part I
of the FPA or other applicable law and how the conditions imposed by the Commission
adequately and equitably protect,mitigate damages to,and enhance fish and wildlife
resources.
45.The EA found that the installation of a stream flow gage in lower Whitman Creek
downstream of the minimum instream flow release point from the Unit 2 penstock and
one downstream of the Achilles Creek diversion (Article 410,and Forest Service
condition 20)would be sufficient to determine compliance with the minimum instream
flow requirements of this license.Providing the additional stream flow gages at the
confluence of Achilles and Whitman Creeks,and upstream of any municipal water
supply diversion,as recommended by Alaska Fish and Game,is unnecessary;and
therefore,the additional annual cost of $27,690 is not justifiable.
46.For the above reasons,I conclude,in accordance with FPA section 10(j)(2)(A),that
Alaska Fish and Game’s stream gage recommendation discussed above,is inconsistent
with the comprehensive planning standard of sections 4(e)and 10(a)of the FPA.In
accordance with section 10(j)(2)(B)of the FPA,we find that the measures required by
this license will adequately and equitably protect,mitigate damages to,and enhance fish
and wildlife resources affected by this project.
B.Recommendations Not Within the Scope of Section 10(j)and
Considered Under Section 10(a)(1)of the FPA
47.Alaska Fish and Game made recommendations that are not specific measures to
protect,mitigate damages to,or enhance fish and wildlife.Consequently,we do not
consider these recommendations under section 10(j)of the FPA.Instead,we consider
these recommendations under the broad public-interest standard of FPA
section 10(a)(1).38
48.We have adopted Alaska Fish and Game’s three recommendations that we
determined were not within the scope of section 10(j):notify Alaska Fish and Game,the
38 16 U.S.C.§803(a)(1)(2006).Section 10(a)(1)requires that an y project for
which the Commission issues a license shall be best adapted to a comprehensive plan for
improving or developing a waterway or waterways for the use or benefit of interstate or
foreign commerce;for the improvement and utilization of waterpower development;for
the adequate protection,mitigation,and enhancement of fish and wildlife;and for other
beneficial public uses,including irrigation,flood control,water supply,recreation,and
other purposes.
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Commission,and other entities within 12 hours of the detection of a non-compliance
event (Article 424);coordinate and consult with fish and wildlife agencies (Alaska Fish
and Game,NMFS,U.S.Fish and Wildlife Service)regarding the need for an annual
project review meeting (Appendix A,condition 4); and provide free and unrestricted
access to project facilities and lands for state and federal agency personnel (Appendix A,
condition 8).
OTHER ISSUES
A.Recreation Trail
49.Currently,there are no public recreation facilities or recreation trails located at the
Whitman Lake project area.However,there is evidence that recreationists take
advantage of the Whitman Lake area during the summer months and hunting seasons for
recreational activities,such as fishing,hunting,and sightseeing.39 Recreationists can
only access the lake via the pipeline corridor route or b y way of lower Whitman Creek.
A developed trail leading to Whitman Lake from the project area would improve access
for recreationists to Whitman Lake.Nevertheless,Ketchikan would prefer to divert
public access away from the project facilities due to concerns for public safety and
vandalism.
50.To improve recreational access and increase recreation opportunities within the
project area,Commission staff in the EA recommended,and Article 422 requires,that the
licensee develop a Whitman Lake Trail Plan to provide a trail from the vicinity of the
Whitman Fish Hatchery/project complex to Whitman Lake,trailhead parking,and an
information kiosk.When developing the trail plan and locating the trail route,Ketchikan
will be able take into consideration public safety concerns and the potential for vandalism
of project and hatchery facilities.
51.On February 26,2009,the Alaska Rainforest Sanctuary,a tour company,submitted
late comments on the EA.The company opposes the development of staff’s
recommended trail to Whitman Lake,stating that its trail system provides access to the
forest and wildlife resources in the Herring Cove/Whitman Lake area.40 However,unlike
the company’s trail,the trail proposed for inclusion in the license would provide access to
39 See EA at 90-91.
40 For a 2 hour and 45 minute guided hike,the Sanctuary charges $80.00 for each
adult and $50.00 for each child.(Information retrieved on March 4,2009,from:
http://www.alaskarainforest.com/pages/tours_rainforest_sanctuary.htm).
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Whitman Lake;and such access would be available for free (or for a small fee)to the
public,thus increasing public recreation opportunities within the project area.For these
reasons,I conclude that the license should require a trail from the vicinity of the Whitman
Fish Hatchery/project complex to Whitman Lake.
52.On February 26,2009,Ketchikan filed a memo documenting discussions it has had
with the Sanctuary as a result of the Sanctuary’s comment letter.In its memo,Ketchikan
states that the Sanctuary would be interested in participating in the development of the
Whitman Lake Trail Plan and that Ketchikan would support the inclusion of the
Sanctuary as a consulted entity on the plan.This license requires (Article 422)that
Ketchikan consult with Sanctuary during the development of the Whitman Lake Trail
Plan.
B. Whitman Fish Hatchery
53.As discussed above,operation of the Whitman Hatchery requires a water supply
that is reliable,delivered at a usable pressure,and at temperatures conducive to the
rearing of salmonids.The EA concluded that because project operations would allocate
water to meet many needs,such as minimum instream flows and power production,
project operations could jeopardize the Whitman Fish Hatchery’s water supply.41 In its
comments on the June 2007 EA,Southern Southeast Aquaculture raised concerns that
obtaining its hatchery water through the project’s Unit 2 turbine would result in water
deliveries at a low-head pressure and inappropriate temperature.42
54.To resolve these concerns,the Settlement provides,and this license includes,the
following measures:(a)a Dry Conditions/Low Reservoir Contingency Protocol, which
would protect the hatchery’s water supply during dry periods through a reduction in
generation and,with the approval of the Reservoir Action Team,43 a reduction in the
41 See EA at 136-37.
42 The Whitman Fish Hatchery’s current water supply is provided through two
mixing valves located at the base of Whitman dam that allow for the mixing of water
from varying depths within the reservoir allowing the water to be delivered to the
hatchery at a specified temperature.Additionally,the hatchery water delivery system
relies on a head pressure of 60 pounds per square inch (psi)to the raceways (rearing
troughs)and 20 psi to the incubation head box (See EA at 44 and 45).
43 The Reservoir Action Team would be comprised of representatives from
Ketchikan,Southern Southeast Aquaculture,Alaska Fish and Game,the Forest Service,
and Alaska Department of Natural Resources,Division of Mining,Land,and Water
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minimum instream flow release to lower Whitman Creek (Article 408);(b)mixing
valves on the variable intake and the new deep water intake that would enable Ketchikan
to supply water to the Whitman Hatchery at an appropriate temperature,suitable for
rearing salmonids,(Article 402);and (c)a head tank that will receive the discharged flow
from Unit 2 and located at a sufficient elevation to provide the hatchery with the water
pressure necessary to support its operations (ordering paragraph (B)(2)).
55.Southern Southeast Aquaculture also stated concerns with the potential for false
attraction to the Unit 1 tailrace of the adult salmonids returning to the Whitman Hatcher y
to spawn.44 In fact,the EA found that the project’s discharge from the Unit 1 tailrace
could create an area of false attraction for fish attempting to return to the hatchery.45 As a
result,returning fish may b ypass the hatchery’s fish ladder and proceed upstream to the
project’s Unit 1 tailrace,preventing Southern Southeast Aquaculture from obtaining
needed broodstock.
56.To resolve these concerns,the Settlement provides,and this license requires,that
Ketchikan minimize attraction velocities at the project’s tailrace discharge and design the
tailrace to provide a physical barrier to fish attempting to enter the tailrace (Article 417).
Article 418 requires that Ketchikan develop a biotic monitoring plan to evaluate the
effectiveness of the tailrace design in preventing false attraction.Article 418 also
requires that Ketchikan file a report following two years of monitoring,identifying any
observed effects the project’s operations have on the behavior of salmonids returning to
the Whitman Hatchery.That report,would also include if appropriate,any proposed
modifications to project operations,project facilities,or other mitigative proposals
deemed appropriate if the project’s tailrace design is inadequate in limiting false
attraction.
C. Modification to the Dry Conditions/Low Reservoir Contingency
Protocol
57.To protect and ensure an adequate water supply to the Whitman Fish Hatcher y
under dry conditions (when Whitman Lake’s elevation is below 367 feet msl),Ketchikan
Resources Section and as proposed by Ketchikan the Reservoir Action Team would have
the authority to reduce the minimum instream flow release made to lower Whitman
Creek when the water surface elevation of Whitman Lake is below 367 feet msl.
44 Comment letter on the June 2007 EA,filed on August 20,2007.
45 See EA at 142.
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proposes that the Dry Conditions/Low Reservoir Contingency Protocol,described in
the Settlement,be implemented and the Reservoir Action Team convened to consider a
reduction in the required minimum instream flows to lower Whitman Creek.In the EA,
staff found that implementing this protocol would help ensure project operations do not
interfere with Whitman Fish Hatcher y’s operations and that water and aquatic resources
in Whitman Lake and lower Whitman Creek would be protected.46 However,Ketchikan
does not indicate a lower threshold level for a reduction in the minimum instream flows,
under the protocol.As noted in the EA,47 the Ketchikan Gatewa y Borough currently
diverts 0.15 cfs from lower Whitman Creek and has applied for an additional water right
from this source in the amount 0.62 cfs,which,if approved,would be a total water right
0.77 cfs.While the minimum instream flow requirement of this license (Article 403)
would satisf y this total flow need (0.77 cfs),implementation of the protocol with no
lower minimum flow limit could jeopardize the Borough’s water supply.
58.Therefore,while this license does allow implementation of the protocol to
temporarily reduce the minimum flow releases to lower Whitman Creek,Article 408
specifies that at no time,shall the sum of the minimum instream flows released into
Achilles and Whitman Creeks,be less than 0.77 cfs.
D.Minimum Instream Flows,Stream Gages,and Flow Meters
59.To protect aquatic resources and fish populations in Whitman Creek,Ketchikan
proposes and this license requires a year-round minimum instream flow release of
between 6 and 11 cfs downstream of Whitman dam (Article 403).For the protection of
macroinvertebrate population and aquatic habitats within Achilles Creek,Ketchikan
proposes and this license requires a year-round minimum instream flow release of 1.5 cfs
or inflow,whichever is less,to Achilles Creek downstream of the Achilles diversion
(Appendix A,condition 20).However,Ketchikan proposes that the minimum instream
flow to lower Whitman Creek ma y be reduced to flows ranging from 2 to 7 cfs,(or
lower),if deemed necessary b y the Reservoir Action Team.Article 408 allows for the
reduction in the minimum instream flows to preserve the water supply for the Whitman
Hatchery and other competing demands of Whitman Lake’s water during dry conditions
and/or low reservoir levels.
60.To monitor compliance with minimum instream flow releases,and support the data
acquisition necessar y to inform the Dry Conditions/Low Reservoir Contingency Protocol
46 See EA at 134.
47 See EA at 30.
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(discussed above);through the Settlement,Ketchikan proposes to construct,operate,
and maintain at least four stream flow gages,with gages located at:(a)the minimum
instream flow release point from the Unit 2 penstock in lower Whitman Creek;(b)
downstream of the Achilles Creek diversion;(c)downstream of the confluence of
Whitman and Achilles Creeks;and (d)upstream of any municipal water supply
diversion(s)on lower Whitman Creek.Additionally,Ketchikan agreed in the Settlement,
to construct,operate and maintain four flow metering and recording devices on the Unit 1
and 2 penstocks,the hatchery 12-inch-diameter rearing and incubation line (not a project
feature),and the hatchery supply line from the head tank.
61.While the EA found that while the installation and operation of the four flow
metering and recoding devices,and the Achilles Creek stream gage to be appropriate,48 it
also found that the installation of three stream gages in lower Whitman Creek would be
excessive.Alternatively,the EA found that a single stream gage in lower Whitman
Creek and a stream gage in Achilles Creek would be adequate for monitoring project
compliance with minimum instream flow requirement.49 As a result this license only
requires:(1)the installation,operation,and maintenance of a stream gage on Achilles
Creek downstream of the Achilles diversion (Appendix A,Condition 20);(2)the
installation,operation,and maintenance of a single stream gage on lower Whitman Creek
(Article 410);and (3)the installation,operation,and maintenance of the four flow
metering devices discussed above (Article 409).
E.Whitman Creek Minimum Instream Flow Release Point
62.Ketchikan’s proposes to make the Whitman Creek minimum instream flow release
from the Unit 2 penstock,700 feet downstream of Whitman dam.This location
corresponds to an elevation lower than the minimum expected elevation of the reservoir
or 343 feet msl,thus allowing the Unit 2 penstock to operate as a siphon.Siphon
operations would need to begin when the reservoir has been drawn down to 363 feet msl.
Ketchikan’s proposed release point would result in the dewatering of the reach between
the dam and the proposed minimum instream flow release point (approximately 700 feet)
for 35 percent of each every year.In the EA,staff concluded that dewatering this reach
on an annual basis should not be necessary,given that a reservoir elevation as low as 363
feet msl and subsequent siphon operation would only likely occur once every seven
years.50 Therefore,to provide aquatic habitat in lower Whitman Creek in most years,
48 See EA at 135-36
49 See EA at 135-36,155-56.
50 See EA at 140.
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Article 403 of this license requires that the minimum instream flow release point for
lower Whitman Creek be located at the base of Whitman dam,not 700 feet downstream
as proposed.In those rare occasions when reservoir elevations reach a level of 364 feet
msl,Article 408 of this license does allow for a transition from the minimum instream
flow release point at the base of Whitman dam to one 700 feet downstream of of the Unit
2 penstock.This rare transition would allow the Unit 2 penstock to operate in a siphon
mode when the reservoir elevation drops below 363 feet msl and would dewater 700 feet
of aquatic habitat in Whitman Creek.To ensure the protection of fish residing in the 700
feet of lower Whitman Creek to be dewatered,Article 408 requires that the ramping rate
requirements of Article 405 be implemented when the minimum flow release point is
transitioned from the base of the dam to the downstream Unit 2 penstock release point,
providing fish an opportunity to move downstream with the receding water.
F. Terrestrial Connectivity Plan
63.As explained in the EA,project penstocks and pipelines ma y inhibit movement of
terrestrial species.51 Therefore,Article 419 requires the licensee to develop and
implement a Terrestrial Connectivity Plan to ensure the ability of wildlife to move across
the project area.This measure is consistent with Ketchikan’s proposal.
G. Nesting Survey Plan
64.The EA found that project construction may affect marbled murrelet,raptors
(including hawks,bald eagle,and owls),and great blue heron nesting habitat located
within the penstock and pipeline corridors and access road routes.52 Article 420 requires
the licensee to develop and implement a Nesting Surve y Plan to provide protection to
nesting habitat in the event that active nesting occurs immediately prior to construction
activities.This measure is consistent with Ketchikan’s proposal.
H. Vegetation Management Plan
65.As discussed in the EA,project construction may alter old growth forest and
wetlands along penstock and pipeline corridors and at access roads.53 Article 421
requires the licensee to develop and implement a Vegetation Management Plan that
includes measures consistent with Ketchikan’s proposal to minimize impacts to old
51 See EA at 87-88.
52 See id.at 87.
53 See id.at 82-85.
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growth forest and wetlands during planning and construction activities and specifies
that the measures be included in the Noxious Weed Management Plan provided for in the
Forest Service condition 19 (Appendix A).
ADMINISTRATIVE PROVISIONS
A.Annual Charges
66.The Commission collects annual charges from licensees for the administration of
the FPA and the project’s use of federal structures and federal lands.Article 201
provides for the collection of such funds.Because the licensee is a municipality,the
assessments for administration of the FPA commence on the date of commencement of
project operation.54
B.Exhibit F and G Drawings
67.The Commission requires licensees to file sets of approved project drawings on
microfilm and in electronic file format.Article 202 requires the filing of these drawings
(Exhibit F).
68.Ketchikan filed Exhibit G (project boundary)maps as part of its license
application,and on May 1,2008,filed revised Exhibit G maps reflecting the revised
project design.The revised maps do not show the location of the primary transmission
line.Therefore,Article 203 requires Ketchikan to file revised Exhibit G drawings that
include the transmission line.
C.Start and Completion of Construction
69.Article 301 requires the licensee to start project construction within two years of
the date of this license issuance and complete construction within five years of issuance
of this license.
54 18 C.F.R.§11.1(d)(6)(2008).
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D.Review of Final Plans and Specifications
70.Article 302 requires the licensee to provide the Commission’s Division of Dam
Safety and Inspections, Portland Regional Office (D2SI-PRO)with cofferdam and deep
excavation construction drawings.
71.Article 303 requires the licensee to provide the Commission’s D2SI-PRO with
final contract drawings and specifications,the Quality Control and Inspection Program,
and the Soil Erosion and Sediment Control Plan.
E.Temporary Construction Emergency Action Plan
72.Article 303 also requires the licensee to submit to the Commission’s D2SI-PRO
and the Division of Dam Safety and Inspections (D2SI)a Temporar y Construction
Emergency Action Plan for implementation during initial construction activities.
F.As-Built Exhibits A,F,and G
73.Article 304 requires the licensee,upon completion of construction,to file revised
Exhibits A,F,and G with the D2SI-Portland Regional Engineer,the Director,D2SI,and
the Division of Hydropower Administration and Compliance.
G.Review by Independent Consultant
74.Because the project’s dam (Whitman dam)is greater than 32.8-feet-high and
impounds more than 2,000 acre-feet,Article 305 requires an independent consultant’s
report within two years of issuance of the license that meets the requirements of Part 12,
Safety of Water Power Projects and Project Works,of the Commission’s Regulations.
H.Use and Occupancy of Project Lands and Waters
75.Requiring a licensee to obtain prior Commission approval for every use or
occupancy of project land would be unduly burdensome.Therefore,Article 425 allows
the licensee to grant permission,without prior Commission approval,for the use and
occupancy of project lands for such minor activities as landscape planting.Such uses
must be consistent with the purposes of protecting and enhancing the scenic,recreational,
and environmental values of the project.
I.Consultation for Resource Plans
76.In Appendix A there are certain Forest Service 4(e)conditions (a Restoration Plan;
a Safety During Project Construction Plan,and a Fire Prevention Plan)that require the
licensee to file plans with the Commission after the plans have been approved b y the
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Project No.11841-002 24
Forest Service.However,the conditions do not specif y that the plans be developed in
consultation with other resource agencies or approved by the Commission before they
may be implemented.Therefore,Article 401 requires the licensee to consult with the
other agencies during plan development and to file the plans with the Commission for
approval.
STATE AND FEDERAL COMPREHENSIVE PLANS
77.Section 10(a)(2)(A)of the FPA55 requires the Commission to consider the extent to
which a project is consistent with federal or state comprehensive plans for improving,
developing,or conserving a waterway or waterways affected by the project.56 Under
section 10(a)(2)(A),federal and state agencies filed 27 comprehensive plans that address
various resources in Alaska.Of these,Commission staff identified and reviewed five
comprehensive plans that are relevant to this project.57 No conflicts were found.
SAFE MANAGEMENT,OPERATION,AND MAINTENANCE OF THE
PROJECT
78.Staff reviewed Ketchikan’s preliminary plans to build the project as described in
the license application.With the installation of automatic penstock shut-off valves
located at the dam to provide public safety and limit damage to property that would result
from a potential penstock failure,as required by Article 303,staff finds the project will
be safe when constructed,operated,and maintained in accordance with the Commission’s
standards and the provisions of this license.
NEED FOR POWER
79.Ketchikan is the utility division of the City of Ketchikan.Ketchikan buys,
generates,and resells all of the electricity consumed in the City of Ketchikan and
Ketchikan Gateway Borough.Ketchikan is an isolated electrical network with no
interconnection to any other utility or transmission system outside their service territory,
except for the Southeast Alaska Power Agency’s Swan Lake Hydroelectric Project FERC
No.2911.58 Ketchikan would use the power generated by the proposed 4,600-kW
55 16 U.S.C.§803(a)(2)(A)(2000).
56 Comprehensive plans for this purpose are defined at 18 C.F.R.§2.19 (2008).
57 The list of applicable plans can be found in section IX of the EA,at 160.
58 The Commission issued the license for Swan Lake Project No.2911 to the City
of Ketchikan,Alaska,doing business as Ketchikan Public Utilities,in 1980.12 FERC
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Whitman Lake Project to help meet power needs.To assess the need for power,staff
reviewed Ketchikan’s current resources and the projected regional need for power.
80.Presently,Ketchikan obtains its power from the Ketchikan Lakes Project No.420,
Beaver Falls Project No.1922,Swan Lake Project No.2911,and Silvis Hydro Project.
The hydroelectric projects have a total generating capacity of 39,000 kW.Ketchikan also
has 23,700 kW of diesel generators that provide peaking and standby capacity.The
average annual generation of Ketchikan’s existing h ydroelectric resources amounts to
about 154,300,000 kWh annually.Whenever Ketchikan’s energy demand exceeds the
capability of the combined hydropower resources,diesel units are operated to meet the
difference.
81.Ketchikan currently requires approximately 145,000,000 kWh to 150,000,000 kWh
of electrical energy per year to meet existing load.Ketchikan estimates near-term load
growth of 14,000,000 kWh to 25,000,000 kWh.Ketchikan’s hydroelectric system is near
peak load.Since all energy in excess of 154,300,000 kWh per year must be generated
using diesel-fired generators;a need for the project power output to offset this fuel
generation exists.
82.Power from the Whitman Lake Project would be useful in meeting a portion of
Ketchikan’s projected power needs.The project would displace diesel-fueled electric
power generation and,thereby conserve nonrenewable fossil fuels and reduce the
emission of noxious byproducts caused by the combustion of fossil fuels.
83.Ketchikan Electric Company argues that there is no need for additional power from
the proposed Whitman Lake Project because Ketchikan’s power needs can be met from
the City of Saxman’s Mahoney Lake Project No.11393.59 In its need for power analysis,
the Commission does not look at the specific sources of power but rather the need for
power in the area.The EA analyzed the need for power and found Power from the
Whitman Lake Project would be useful in meeting a portion of Ketchikan’s projected
¶61,331 (1980).The Commission approved the transfer of the license to the Alaska
Power Authority in 1982.20 FERC ¶62,506 (1982).The Commission approved the
transfer of the license to the Four Dam Pool Power Agency in 2002.98 FERC ¶62,057
(2002).The Commission amended the license on January 16,2009,for the sole purpose
of reflecting the name change of the Four Dam Pool Power Agency to the Southeast
Alaska Power Agenc y.126 FERC ¶62,035 (2009).The Swan Lake Project is operated
by Ketchikan.
59 See Ketchikan Electric Company’s filing of January 25,2006.
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power needs,and would displace Ketchikan’s diesel-fueled electric power
generation.60 Ketchikan Electric Company did not file comments on the EA.61
PROJECT ECONOMICS
84.In determining whether to issue a license for a hydroelectric project,the
Commission considers a number of public interest factors,including the economic
benefits of project power.Under the Commission’s approach to evaluating the
economics of hydropower projects,as articulated in Mead Corp.,62 the Commission uses
current costs to compare the costs of the project and likely alternative power with no
forecasts concerning potential future inflation,escalation,or deflation beyond the license
issuance date.The basic purpose of the Commission's economic analysis is to provide a
general estimate of the potential power benefits and the costs of a project,and of
reasonable alternatives to project power.The estimate helps to support an informed
decision concerning what is in the public interest with respect to a proposed license.
85.In applying this analysis to the Whitman Lake Project,we have considered two
options:Ketchikan’s proposal and the project as licensed herein with the mandatory
conditions and staff-recommended measures.As proposed by Ketchikan,the levelized
annual cost of operating the Whitman Lake Project is $1,570,500,or 95.2 mills/kWh.
The proposed project would generate an estimated average of 16,500,000 kWh of energy
annually.When we multiply our estimate of average generation b y the alternative power
cost of 360.9 mills/kWh,63 we get a total value of the project’s power of $5,954,600 in
2008 dollars.To determine whether the proposed project is currently economically
beneficial,staff subtracts the project's cost from the value of the project's power.64
60 See EA at 3.
61 Nor did Ketchikan Electric Company file comments on the June 2007 EA,or the
February 2008 Settlement,both which described the need for power generated by the
proposed Whitman Lake project.
62 72 FERC ¶61,027 (1995).
63 When its hydroelectric power is not available or sufficient,Ketchikan uses
diesel generators to meet its power needs.The cost of diesel generation,therefore,is a
reasonable proxy for the value of power for the Whitman Lake Project.The alternative
power cost of 360.9 mills/kWh is based on the June 2008 diesel fuel cost reported by the
Energ y Information Administration.
64 Details of staff’s economic analysis for the project as licensed herein and for
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Project No.11841-002 27
Therefore,in the first year of operation,the project would cost $4,384,000,or 265.7
mills/kWh less than the likely alternative cost of alternative power.
86.As licensed herein,with the mandatory conditions and staff measures,the levelized
annual cost of operating the project would be about $1,577,900,or 95.6 mills/kWh.
Based on an estimated average of 16,500,000 kWh as licensed,the project would produce
power valued at $5,954,600 when multiplied by the 360.9 mills/kWh value of the
project’s power.Therefore,in the first year of operation,project power would cost
$4,376,600,or 265.3 mills/kWh less than the likely cost of alternative power.
87.In considering public interest factors,the Commission takes into account that
hydroelectric projects offer unique operational benefits to the electric utility system
(ancillary service benefits).These benefits include their capability to provide an almost
instantaneous load-following response to dampen voltage and frequency instability on the
transmission system,system-power-factor-correction through condensing operations,and
a source of power available to help in quickly putting fossil-fuel based generating stations
back on line following a major utility system or regional blackout.
COMPREHEHSIVE DEVELOPMENT
88.Sections 4(e)and 10(a)(1)of the FPA65 require the Commission to give equal
consideration to power development purposes and to the purposes of energy
conservation;the protection,mitigation of damage to and enhancement of fish and
wildlife;the protection of recreational opportunities;and the preservation of other aspects
of environmental quality.An y license issued shall be such as in the Commission’s
judgment will be best adapted to a comprehensive plan for improving or developing a
waterway or waterways for all beneficial public uses.The decision to license this project,
and the terms and conditions included herein,reflect such consideration.
89.The EA for the project contains background information,analysis of effects,and
support for related license articles.I conclude based on the record of this proceeding,
including the EA and the comments thereon,that licensing the Whitman Lake Project as
described in this order would not constitute a major federal action significantly affecting
the quality of the human environment.The project will be safe if operated and
maintained in accordance with the requirements of this license.
various alternatives are included in the Developmental Analysis section of the EA.
65 16 U.S.C.§§797(e)and 803(a)(1)(2006).
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Project No.11841-002 28
90.Based on our independent review and evaluation of the project,
recommendations from the resource agencies and other stakeholders,and the no-action
alternative,as documented in the EA,I have selected licensing the proposed Whitman
Lake Project with the mandatory conditions and staff-recommended measures,and find
that it is best adapted to a comprehensive plan for improving or developing Whitman and
Achilles Creeks.
91.I selected this alternative because:(1)issuance of an original license will serve to
provide a beneficial,dependable,and an inexpensive source of electric energy;(2)the
required environmental measures will protect and enhance fish and wildlife resources,
water quality,recreational resources,and historic properties;and (3)the 4,600 kW of
electric energy generated from renewable resource will offset the use of fossil-fueled,
diesel generating plants,conserving nonrenewable resources and reducing atmospheric
pollution.
LICENSE TERM
92.Section 15(e)of the FPA,66 provides that any new license issued shall be for a term
that the Commission determines to be in the public interest,but not less than 30 years or
more than 50 years.The Commission’s polic y with regard to original licenses for
unconstructed projects that will use an existing dam is for the license to receive a 30-year
license if very little new construction is involved;a 40-year license for a moderate
amount of new construction;and a 50-year license for a substantial amount of
construction.67
93.Ketchikan proposes to construct a complex and extensive project,including but not
limited to:a new powerhouse;two,2,450-foot-long penstocks; a diversion structure on
Achilles Creek,with a 2,500-foot-long pipeline;a 1,500-foot-long,34.5-kilovolt (kV)
transmission line;a 20-foot-wide,2,500 foot-long penstock access road from the
powerhouse to Whitman dam;as well as a 12-foot-wide,3,800-foot-long access road
from the penstock access road to the Achilles diversion.Consequently,the amount of
construction here is substantial and a 50-year license term is appropriate.
66 16 U.S.C.§808(e)(2000).
67 See City of Danville,Virginia,58 FERC ¶61,318 at 62,020 (1992).
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The Director orders:
(A)This license is issued to Ketchikan Public Utilities (licensee),for a period of
50 years,effective the first day of the month in which this order is issued,to construct,
operate,and maintain the Whitman Lake Hydroelectric Project.This license is subject to
the terms and conditions of the FPA,which is incorporated b y reference as part of this
license,and subject to the regulations the Commission issues under the provisions of the
FPA.
(B)The project consists of:
(1)All lands,to the extent of the licensee's interests in those lands,
described in the project description and the project boundary discussion of this
order.
(2)Project works consisting of:(a)a 39-foot-high,220-foot-long
concrete gravity arch dam with a 40-foot-wide Ogee spillway;(b)Whitman Lake
with a normal maximum water surface elevation of 379.8 feet mean sea level and
a surface area of 148 acres;(c)Achilles Creek diversion dam,a 7.5-foot-high,25-
foot-long concrete diversion structure with an 8-inch-diameter instream flow
release pipe and a 3-foot-wide sluice pipe;(d)the Achilles Creek impoundment;
(e)a 2,500-foot-long,24-inch-diameter pipeline to convey water from the Achilles
Creek diversion to Whitman Lake;(f)a 12-foot-wide,3,800-foot-long access road
from the upper penstock to the Achilles Creek diversion;(g)a 60-inch-diameter,
2,450-foot-long penstock beginning at Whitman dam and ending at Unit 1 with a
screened intake;(h)a new 36-inch-diameter,2,450-foot-long penstock beginning
at Whitman dam and ending at Unit 2;(i)a 36-inch-diameter,1,500-foot-long,
new deep-water intake with a siphon and vacuum pump;(j)a 15-b y 15-foot-wide
valve house;(k)a 30-foot-diameter by 20-foot-high head tank;(l)a Unit 2
pressurized supply line to pass water from above the powerhouse via a pressure
reducing valve to the head tank;(m)a 40-b y 40-foot powerhouse with a total
installed capacity of 4,600 kW,Unit 1 is a 3,900-kW horizontal Francis
turbine/generator and Unit 2 is a 700-kW horizontal or vertical Francis
turbine/generator;(n)a switch yard;(o)a 1,500-foot-long,34.5-kilovolt (kV)
transmission line;68 (p)a tailrace channel with a 30-foot-wide concrete barrier weir
68The primary transmission line consists of 200 feet of new 34.5-kV line and
poles and 1,300 feet of new 34.5-kV line mounted on top of reconfigured existing poles
currently used to support a 12.47-kV distribution line.The existing 12.47-kV
distribution line currently and would continue to provide service to the hatcher y and other
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Project No.11841-002 30
releasing water to Herring Bay;(q)a 20-foot-wide,2,500 foot-long penstock access
road from the powerhouse to Whitman dam;(r)a 12-foot-wide,3,800-foot-long
access road from the penstock access road to the Achilles diversion;and (s)
appurtenant facilities.
The project works generally described above are more specifically shown and
described by those portions of Exhibit A and F shown below:
Exhibit A:The following sections of Exhibit A filed on April 11,2008:
Section 3.1 titled “Proposed Project Statistics”,pages 4 and 5.
Exhibit F:The following Exhibit F drawings filed on April 11,2008:
Exhibit F Drawing FERC No.
11841-
Description
F-1 001 Project Site Map
F-2 002 Powerhouse Site Plan and
Sections
F-3 003 Powerhouse Plan and Sections
F-4 004 Whitman Lake Dam Plan,
Elevation and Sections
F-5 005 Intake Detail
F-6 006 Achilles Diversion Plan and
Section
(3)All of the structures,fixtures,equipment or facilities used to operate
or maintain the project,all portable property that may be employed in connection
with the project,and all riparian or other rights that are necessary or appropriate
in the operation or maintenance of the project.
(C)The Exhibits A and F described above are approved and made part of
the license.The Exhibit G drawings filed as part of the application for license do
not conform to Commission regulations and are not approved.
customers along the alignment.
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(D)This license is subject to the conditions submitted b y the U.S.Forest
Service on January 27,2006,under section 4(e)of the FPA,as those conditions
are set forth in Appendix A to this order.
(E)This license is also subject to the articles set forth in Form L-2 (Oct.
1975),entitled “Unconstructed major project affecting lands of the United
States”(see 54 FPC 1799 et seq.),and the following additional articles:
Article 201.Annual Charges.The licensee shall pay the United States
annual charges,and as determined in accordance with the provisions of the
Commission's regulations in effect from time to time:
(1)effective as of the date of commencement of project operation,for the
purpose of reimbursing the United States for the cost of administration of
Part 1 of the Federal Power Act.The authorized installed capacity for
that purpose is 4,600 kilowatts;and
(2)recompensating the United States for the use,occupancy and
enjoyment of 155.8 acres of its lands (other than for transmission line
right-of-way).
Article 202.Exhibit F Drawings.Within 45 days of the date of issuance
of the license,the licensee shall file the approved exhibit drawings in aperture
card and electronic file formats.
a)Three sets of the approved exhibit drawings shall be reproduced on
silver or gelatin 35mm microfilm.All microfilm shall be mounted on type D (3-
1/4"X 7-3/8")aperture cards.Prior to microfilming,the FERC Project-Drawing
Number (i.e.,P-11841-001 through P-11841-####)shall be shown in the margin
below the title block of the approved drawing.After mounting,the FERC
Drawing Number shall be typed on the upper right corner of each aperture card.
Additionally,the Project Number,FERC Exhibit (i.e.,F-1,G-1,etc.),Drawing
Title,and date of this license shall be typed on the upper left corner of each
aperture card.
Two of the sets of aperture cards shall be filed with the Secretary of the
Commission,ATTN:OEP/DHAC.The third set shall be filed with the
Commission's Division of Dam Safety and Inspections Portland Regional Office.
b)The licensee shall file two separate sets of exhibit drawings in
electronic raster format with the Secretary of the Commission,ATTN:
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Project No.11841-002 32
OEP/DHAC.A third set shall be filed with the Commission's Division of Dam Safety
and Inspections Portland Regional Office.Exhibit F drawings must be identified
as (CEII)material under 18 CFR §388.113(c).Each drawing must be a separate
electronic file,and the file name shall include:FERC Project-Drawing Number,
FERC Exhibit,Drawing Title,date of this license,and file extension in the
following format [P-11841-001,F-1,Description,MM-DD-YYYY.TIF].
Electronic drawings shall meet the following format specification:
IMAGERY -black &white raster file
FILE TYPE –Tagged Image File Format,(TIFF)CCITT Group 4
RESOLUTION –300 dpi desired,(200 dpi min)
DRAWING SIZE FORMAT –24”X 36”(min),28”X 40”(max)
FILE SIZE –less than 1 MB desired
Article 203.Exhibit G Drawings.Within 90 days of the issuance date of
the license,the licensee shall file,for Commission approval,revised Exhibit G
drawings enclosing within the project boundary all principal project works
necessary for operation and maintenance of the project,including the project’s
transmission facilities and substations.The Exhibit G drawings must comply
with sections 4.39 and 4.41 of the Commission’s regulations.
Article 301.Start of Construction.The licensee shall commence construction of
the project works within two years from the issuance date of the license and shall
complete construction of the project within five years from the issuance date of the
license.
Article 302.Cofferdam Construction Drawings.Before starting
construction,the licensee shall review and approve the design of contractor-
designed cofferdams and deep excavations,and shall make sure construction of
cofferdams and deep excavations is consistent with the approved design.At least
30 days before starting construction of the cofferdam,the licensee shall submit
one copy to the Division of Dam Safety and Inspections -Portland Regional
Engineer and two copies to the Commission (one of these copies shall be a
courtesy copy to the Commission's Director,Division of Dam Safety and
Inspections),of the approved cofferdam construction drawings and specifications
and the letters of approval.
Article 303.Contract Plans and Specifications.At least 60 days prior to
start of construction,the licensee shall submit one copy of its plans and
specifications and supporting design document to the Commission’s Division of
Dam Safety and Inspections (D2SI)–Portland Regional Engineer,and two
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Project No.11841-002 33
copies to the Commission (one of these shall be a courtesy cop y to the Director,D2SI).
The plans and specifications must provide for the installation of automatic
penstock shut-off valves located at the dam to limit damage from a potential
failure of the penstocks.The submittal must also include as part of
preconstruction requirements:a Quality Control and Inspection Program,
Temporary Construction Emergency Action Plan,and Soil Erosion and Sediment
Control Plan.The licensee may not begin construction until the D2SI –Portland
Regional Engineer has reviewed and commented on the plans and specifications,
determined that all preconstruction requirements have been satisfied,and
authorized start of construction.
Article 304.As-built Drawings.Within 90 days of completing
construction activities authorized b y this license,the licensee shall file,for
Commission approval,revised Exhibits A,F,and G to describe and show those
project facilities as built.A courtesy cop y shall be filed with the Commission’s
Division of Dam Safety and Inspections (D2SI)-Portland Regional Engineer;the
Director,D2SI;and the Director,Division of Hydropower Administration and
Compliance.
Article 305.Inspection by Independent Consultant.An Independent
Consultant’s Inspection Report is due within two years of the issuance date of the
license in accordance with Part 12,Safety of Water Power Projects and Project
Works,of the Commission’s Regulations.
Article 401.Requirement to File Plans for Commission Approval and
Requirement to Consult.Various conditions required by this license in Appendix A,
require the licensee to prepare plans and drawings for environmental measures.The
following table indicates the agencies/parties the licensee shall consult with before
preparing the plans and drawings along with the deadline for filing the plans and
drawings with the Commission for approval.Additionally,the required plans shall
address all lands within the project boundar y.
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Project No.11841-002 34
Condition Measure Consulting Parties Due Date
Condition 4 Annual Consultation
Meeting &Report
Alaska Department of
Fish and Game;
Alaska Department of
Natural Resources -
Division of Mining,
Land,and Water
Resources Section;
U.S.Geological
Survey;U.S.Fish and
Wildlife Service;
National Marine
Fisheries Service;
Southern Southeast
Regional Aquaculture
Association
Consult annually,at
least 90 days prior to
the anniversary date
of the license and file
annual report on
consultation meeting
on the anniversary of
the license issuance.
Condition 6,
&12
Hazardous Substances
Plan;Pesticide use
Restrictions
National Marine
Fisheries Service;U.S.
Fish and Wildlife
Service;Alaska
Department of Fish
and Game;Alaska
Department of Natural
Resources -Division
of Mining,Land,and
Water Resources
Section
Within one year of
license issuance or at
least 90 days prior to
ground-disturbing
activity
Condition 14 Scenery Management
Plan
Within one year of
license issuance
Condition 15 Diversion Operation
and Maintenance Plan
Alaska Department of
Fish and Game;
Alaska Department of
Natural Resources -
Division of Mining,
Land,and Water
Resources Section
Within one year of
license issuance or at
least 90 days prior to
ground-disturbing
activity
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Project No.11841-002 35
Condition 16 Erosion Control Plan National Marine
Fisheries Service;U.S.
Fish and Wildlife
Service;Alaska
Department of Fish
and Game;Alaska
Department of Natural
Resources -Division
of Mining,Land,and
Water Resources
Section
Within one year of
license issuance or at
least 90 days prior to
ground-disturbing
activity
Condition 19 Noxious Weed
Management Plan
U.S.Fish and Wildlife
Service;Alaska
Department of Fish
and Game
Within one year of
license issuance
Condition 11 Safety During Project
Construction plan
Within one year from
license issuance or at
least 60 days prior to
any ground-
disturbance
Condition 18 Fire Prevention Plan Within one year from
license issuance,or at
a least 60 da ys prior
to an y ground-
disturbance
In addition to an implementation schedule,the licensee shall include with each
plan,documentation of consultation,copies of comments and recommendations on the
completed plan after it has been prepared and provided to the agencies,and specific
descriptions of how the agencies’comments are accommodated by the plan.The licensee
shall allow a minimum of 30 days for the agencies to comment and to make
recommendations before filing each plan with the Commission.If the licensee does not
adopt a recommendation,the filing shall include the licensee’s reasons based on
project-specific information.
The Commission reserves the right to require changes to the plans.
Implementation of each plan and associated schedule shall not begin until the plan and
schedule are approved by the Commission.Upon Commission approval,the licensee
shall implement each plan and schedule,including any changes required b y the
Commission.
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Article 402.Unit 1&2 Operations.The licensee shall only operate Unit 1
when the Whitman Lake elevation is at or above elevation 370 feet mean sea level.Unit
2 shall operate up to its maximum hydraulic capacity to provide water for the Whitman
Fish Hatchery.
Water supplied to the Unit 2 penstock shall be provided by both the variable intake
and the deep-water intake and proportionall y mixed to control the temperature of water
that enters the Unit 2 penstock that is ultimately delivered to the Whitman Fish Hatchery,
within the existing ambient temperature range of Whitman Lake.Water temperatures
through the Unit 2 penstock shall be managed by the licensee for the Whitman Fish
Hatchery based on its consultation with Southern Southeast Regional Aquaculture
Association.
When Unit 2 is shut down for maintenance or has tripped off-line,water from the
Unit 2 penstock shall be diverted through a pressure reducing valve to the head tank for
the benefit of the Whitman Fish Hatchery.
Article 403.Whitman Creek Minimum Instream Flow.The licensee shall release,
(for the protection and enhancement of fish and wildlife resources,riparian vegetation,
aesthetic resources,water quality,etc.)from the base of Whitman Lake dam,into lower
Whitman Creek,a minimum instream flow pursuant to the following schedule,and as
measured at the stream flow gage required by Article 410 below:
November 16 –April 30:6 cfs
Ma y 1 –September 15:8 cfs
September 16 –November 15:11 cfs
These minimum instream flows may be temporarily modified if required by
operating emergencies beyond the control of the licensee,and for short periods upon
agreement between the licensee and the Alaska Department of Fish and Game.If the
flows are so modified,the licensee shall notify the Commission;the U.S.Forest Service;
the Alaska Department of Natural Resources -Division of Mining,Land,and Water
Resources Section;and the Alaska Department of Fish and Game within 12 hours of any
such incident.
Article 404.Whitman Creek Bypass Channel Maintenance Flows.The licensee
shall annually release from the Whitman Lake dam into lower Whitman Creek,a channel
maintenance flow of 150 cubic feet per second,as measured at the lower Whitman Creek
stream flow gage required by Article 410 below.This channel maintenance flow shall be
released for a single day (24 continuous hours)each year between June 1 and August 15.
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Project No.11841-002 37
This flow may be temporarily modified if required b y operating emergencies
beyond the control of the licensee,or upon agreement between the licensee and the
Alaska Department of Fish and Game.If the flow is so modified,the licensee shall notif y
the Commission;the U.S.Forest Service;the Alaska Department of Fish and Game;and
the Alaska Department of Natural Resources -Division of Mining,Land,and Water
Resources Section within 12 hours of any such incident.
Article 405.Whitman Creek Ramping Rates.When changing flow releases in
lower Whitman Creek,and to protect aquatic resources located within the bypassed reach
of Whitman Creek,the licensee shall limit flow fluctuations to 1-inch-per-hour between
March 1 and Ma y 31 and two-inches-per-hour between June 1 and the last da y of
February.
Article 406.Achilles Creek BypassedChannel Maintenance Flows.The licensee
shall provide flows of at least 34 cubic feet per second to the bypassed reach of Achilles
Creek,for a single day (24 continuous hours)each year,as measured at the stream flow
gage required by Article 410 below.
This flow may be temporarily modified if required b y operating emergencies
beyond the control of the licensee,or upon agreement between the licensee and the
Alaska Department of Fish and Game.If the flow is so modified,the licensee shall notif y
the Commission;the U.S.Forest Service;the Alaska Department of Fish and Game;and
the Alaska Department of Natural Resources -Division of Mining,Land,and Water
Resources Section within 12 hours of any such incident.
Article 407.Deviation from Achilles Creek Minimum Stream Flow.The
continuous year-round minimum instream flow release of 1.5 cubic feet per second from
the Achilles Creek diversion dam into Achilles Creek,required by Forest Service
condition 20 of Appendix A,may be temporarily modified if required by operating
emergencies be yond the control of the licensee,or for short periods upon agreement
between the licensee and the Alaska Department of Fish and Game,and the U.S.Forest
Service.If the minimum instream flows are so modified,the licensee shall notif y the
Commission;the U.S.Forest Service;the Alaska Department of Natural Resources -
Division of Mining,Land,and Water Resources Section;and the Alaska Department of
Fish and Game within 12 hours of any such incident.
Article 408.Dry Conditions/Low Reservoir Contingency Protocol.The licensee
shall implement the following Dry Conditions/Low Reservoir Contingency protocol:
(a)when Whitman Lake’s water surface elevation falls below 370 feet mean sea
level (msl), the licensee shall not operate Unit 1;and once reservoir levels fall below
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Project No.11841-002 38
elevation 367 feet msl,the licensee must notify the Alaska Department of Fish and
Game;the Alaska Department of Natural Resources -Division of Mining,Land,and
Water Resources Section;the U.S.Forest Service;and the Southern Southeast Regional
Aquaculture Association (collectively with the licensee,the Reservoir Action Team);
(b)when Whitman Lake’s elevation is below 367 feet msl and at or above 363 feet
msl,the licensee shall maintain the minimum instream flows for lower Whitman Creek
required by Article 403, unless the Reservoir Action Team members unanimously
determine that an alternative minimum instream flow is necessary to protect and ensure
an adequate water supply to the Whitman Fish Hatchery.If such a determination is made
by the Reservoir Action Team,the licensee shall immediately implement the ramping
requirements of Article 405 and release the Reservoir Action Team’s recommended
minimum instream flow,notify the Commission of the modification within 12 hours,and
provide detailed written documentation of the Reservoir Action Team’s recommended
alteration within 10 days of the determination;The Reservoir Action Team’s
recommended minimum instream flow shall be released until the Whitman Lake
elevation reaches 367 feet msl,or otherwise altered by the Reservoir Action Team;
(c)when Whitman Lake’s elevation is at or below 364 feet msl,the licensee ma y
transition from the minimum instream flow release point from Whitman dam required b y
Article 403 to the Unit 2 penstock minimum instream flow release point approximately
700 feet downstream of Whitman dam,complying with the ramping rate requirements of
Article 405 during this transition;
(d)when Whitman Lake’s elevation is below 363 feet msl,the licensee shall
reduce the minimum instream flows required by Article 403 to those determined to be
appropriate b y the Reservoir Action Team to protect and ensure an adequate water supply
is available to the Whitman Fish Hatchery.If the Reservoir Action Team is not available
or cannot reach a unanimous consensus regarding the appropriate level of reduction in the
minimum instream flows,while complying with the ramping rate requirements of Article
405,the following minimum instream flows shall be released into lower Whitman Creek
until Whitman Lake’s water surface elevation returns to 367 feet msl:
November 16 –April 30:2 cubic feet per second (cfs)
Ma y 1 –September 15:4 cfs
September 16 –November 15:7 cfs
(e)to ensure an adequate flow is available at the Ketchikan Gateway Borough’s
domestic water supply diversion on lower Whitman Creek,at no time shall the sum of the
minimum instream flows released into Achilles and Whitman Creeks,as measured by
Whitman Creek stream flow gage required by Article 410 and the Achilles Creek stream
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Project No.11841-002 39
flow gage required b y the Forest Service’s condition 20 (Appendix A),be less than
0.77 cfs,regardless of any recommendation made by the Reservoir Action Team,without
first receiving the Commission’s approval.
Article 409.Project Flow Metering and Recording.The licensee shall install flow
metering devices to continuously monitor water flow through project facilities and to the
Whitman Fish Hatchery.The licensee shall equip each penstock,the Whitman Fish
Hatchery rearing and incubation pipeline (not a project feature),and the primary hatchery
supply line from the head tank with flow metering and recording devices.The licensee
shall be responsible for the maintenance and operation of this equipment.All data
recorded by the above mentioned equipment shall be recorded at a frequency not greater
than 15-minute intervals.
The licensee shall install the penstock and the Whitman Fish Hatchery rearing and
incubation line flow metering devices on the designated pipelines within the valve house
at the base of Whitman dam.The flow metering device to be located on the primary
hatchery supply line downstream of the head tank shall be located between the head tank
and the valve used to control the delivery of flow to the Whitman Fish Hatchery.Upon
completion of the installations,Ketchikan shall file a report with the Commission
detailing the installation of the above mentioned metering and monitoring equipment.
Before installing these flow monitoring devices,the licensee shall consult with the
U.S.Forest Service;the U.S.Geological Survey;the Alaska Department of Fish and
Game;the Alaska Department of Natural Resources -Division of Mining,Land,and
Water Resources Section;and Southern Southeast Regional Aquaculture Association on
the appropriate equipment and timing of the installations.The licensee shall allow a
minimum of 30 days for the agencies and Southern Southeast Regional Aquaculture
Association to comment and to make recommendations before installing the flow
metering devices.
Upon completion of the installation,the licensee shall file a report with the
Commission detailing the installation of the flow metering devices.The licensee shall
include,with the report,documentation of consultation.The licensee shall allow a
minimum of 30 days for the agencies and Southern Southeast Regional Aquaculture
Association to comment and to make recommendations prior to finalizing the
installations.If the licensee does not adopt a recommendation,the report shall include
the licensee's reasons,based on project-specific information.
Article 410.Whitman Creek Stream Gage,Flow Monitoring,and Recording.
The licensee shall install a stream gage on lower Whitman Creek downstream of the Unit
2 penstock minimum instream flow release point,approximately 700 feet downstream
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Project No.11841-002 40
from Whitman dam.The gage shall be constructed in a manner that will document
minimum instream flow compliance in Whitman Creek.The licensee shall be
responsible for the maintenance and operation of the gage.All data shall be recorded at a
frequency of not greater than 15-minute intervals and filed with the Commission by April
1st of each year,documenting the previous water year.Copies of the data shall be
provided upon request to members of the Reservoir Action Team,identified in Article
408.
Before installing the Whitman Creek stream gage,the licensee shall consult with
the U.S.Forest Service;the U.S.Geological Survey;the Alaska Department of Fish and
Game;and the Alaska Department of Natural Resources -Division of Mining,Land,and
Water Resources Section on the appropriate equipment,location,and timing of the
installation.The licensee shall allow a minimum of 30 days for the agencies to comment
and to make recommendations before installing the stream gage.
Upon completion of the installation,the licensee shall file a report with the
Commission detailing the installation of the stream gage.The licensee shall include with
the report stage/discharge relationships for the gage;documentation of consultation,
including copies of comments and recommendations on the appropriate equipment,
location,and timing of the installations after consultation with the agencies;and specific
descriptions of how the comments were accommodated.If the licensee does not adopt a
recommendation,the report shall include the licensee's reasons,based on project-specific
information.
Article 411.Reservoir Elevation Monitoring and Recording.The licensee shall
install a reservoir elevation sensing device to continuously monitor the water surface
elevation of Whitman Lake.The licensee shall be responsible for the maintenance and
operation of the above mentioned equipment.All data recorded b y the above mentioned
equipment shall be recorded at a frequency of not greater than 15-minute intervals and
filed with the Commission by April 1st of each year,documenting the previous water
year.Copies of the data shall be provided upon request to members of the Reservoir
Action Team,identified in Article 408.
Before installing the reservoir elevation sensing device,the licensee shall consult
with the U.S.Forest Service;the U.S.Geological Surve y;the Alaska Department of Fish
and Game;and the Alaska Department of Natural Resources -Division of Mining,Land,
and Water Resources Section on the appropriate equipment,location and timing of the
installations.The licensee shall allow a minimum of 30 days for the agencies to
comment and to make recommendations before installing the device.
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Upon completion of the installations,the licensee shall file a report with the
Commission detailing the installation of the above mentioned monitoring equipment.
The licensee shall include with the report documentation of consultation.The licensee
shall allow a minimum of 30 days for the agencies to comment and to make
recommendations prior to finalizing the installation.If the licensee does not adopt a
recommendation,the report shall include the licensee's reasons,based on project-specific
information.
Article 412.Environmental Compliance Monitor.Within two years of license
issuance or at least 30 days prior to any ground-disturbing or land-clearing activities,the
licensee shall employ a qualified environmental compliance monitor (ECM)to be on-site
during project construction.The ECM shall have the authority to:(a)issue cease work
and change orders in the field,as deemed necessary;and (b)document compliance of the
licensee with the conditions of the license.
The licensee shall consult with the Alaska Department of Fish and Game;the
Alaska Department of Natural Resources -Division of Mining,Land,and Water
Resources Section;and the U.S.Forest Service on the position description of the ECM,
including qualifications,duties,and responsibilities.The licensee shall allow a minimum
of 30 days for the agencies to comment and to make recommendations prior to finalizing
the position description.
Article 413.Turbidity Monitoring.The licensee shall add provisions for turbidity
monitoring during ground-disturbing activities to the Erosion and Sediment Control
Monitoring Plan required b y Forest Service condition 16 (Appendix A).Water samples
shall be analyzed for turbidity daily.If turbidity 100 feet downstream of construction
areas measures greater than 25 nephelometric turbidity units higher than values obtained
upstream of the construction area,then related construction activities shall cease
immediately,sediment sources shall be located,and appropriate sediment control
measures shall be implemented and monitored for effectiveness.Daily turbidity data
shall be submitted to the Alaska Department of Fish and Game -Division of Sport Fish
office in Ketchikan on a weekly basis.
Article 414.Hazardous Substances.The licensee shall add provisions to the
Hazardous Substance Plan required b y the Forest Service condition 6 (Appendix A)to
provide for the removal of oil and other contaminants from condensate and leakage from
turbines and other equipment associated with the project.
Article 415.Intake Screen.Within one year of license issuance,the licensee shall
file for Commission approval,detailed design drawings of the licensee’s proposed Unit 1
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intake screen to reduce the entrainment of resident fish,together with a schedule to
construct/install the intake screen before commercial operation of the project.
This filing shall include,but not be limited to:(1)specifications of the size of the
screen mesh openings not to exceed 0.25 inch in the narrowest direction;(2)the
maximum intake approach velocity not to exceed 0.8 feet-per-second;and (3)a
description of the methods and a schedule for installing the Unit 1 intake screen.
The licensee shall prepare the aforementioned drawings and schedule after
consultation with the Alaska Department of Fish and Game;the Alaska Department of
Natural Resources -Division of Mining,Land,and Water Resources Section;and the
Southern Southeast Regional Aquaculture Association.With the drawings,the licensee
shall include documentation of consultation,copies of agency and stakeholder comments
and recommendations on the drawings and schedule after they have been prepared and
provided to the agencies and Southern Southeast Regional Aquaculture Association,and
specific descriptions of how the agencies'and stakeholder’s comments are
accommodated b y the licensee's design drawings.The licensee shall allow a minimum of
30 days for the agencies and Southern Southeast Regional Aquaculture Association to
comment and to make recommendations before filing the drawings and schedule with the
Commission.If the licensee does not adopt a recommendation,the filing shall include
the licensee's reasons,based on project-specific information.
The Commission reserves the right to require changes to the proposed design
drawings and schedule.Upon Commission approval,the licensee shall implement the
proposal,including any changes required b y the Commission.
Article 416.Intake Screen Monitoring.The licensee shall at a minimum,conduct
visual inspections,on a weekly basis,and clean the project’s Unit 1 intake screen as
necessary during the first two years of project operations (except when Whitman Lake is
frozen over)to ensure this intake remains free of debris and determine the frequency of
screen cleaning in the future.
The licensee shall file bi-annual reports for two years with the Commission
summarizing the monitoring results.The reports shall be due on June 31st and December
31st,and shall include detailed monitoring results for the fall/winter (June report)and
spring/summer (December report)monitoring periods.The fourth and final report shall
summarize all monitoring results to date and provide a proposed schedule for cleaning
the Unit 1 intake screen based on site-specific monitoring results.The schedule shall be
filed with the Commission for approval.
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Before filing the final report with the Commission,the licensee shall consult
with the U.S.Forest Service;the Alaska Department of Fish and Game;the Alaska
Department of Natural Resources -Division of Mining,Land,and Water Resources
Section;and Southern Southeast Regional Aquaculture Association on the proposed
schedule for cleaning the Unit 1 intake screen.The licensee shall allow a minimum of 30
days for the agencies and Southern Southeast Regional Aquaculture Association to make
recommendations.
The licensee shall include with the report documentation of consultation and
specific descriptions of how the comments were accommodated.If the licensee does not
adopt a recommendation for the Unit 1 intake screen cleaning schedule,the report shall
include the licensee's reasons,based on project-specific information.
The Commission reserves the right to require changes to the proposed Unit 1
intake screen cleaning schedule.Implementation of the schedule shall not begin until the
licensee is notified by the Commission that the schedule is approved.Pending
Commission approval of the schedule,the licensee shall continue to visually inspect
weekly and clean the projects intake screen as necessary.Upon Commission approval,
the licensee shall implement the schedule,including any changes required b y the
Commission.
Article 417.Tailrace Design.Within one year of license issuance,the licensee
shall file with the Commission,for approval,detailed design drawings of the project
tailrace.The project tailrace shall be constructed in such a way as to reduce false
attraction of salmonids at the point of discharge into Herring Cove and to provide a
barrier to an y salmonids attempting to enter the tailrace at all tide levels.
The filing shall include,but not be limited to,specifications for:(1)a concrete
weir;(2)a baffle wall;(3)a sill;and (4)smooth-finished bars with one-inch openings
along the bottom of the baffle wall to the floor to provide an additional barrier to any fish
attempting to enter the tailrace.A description of the methods and a schedule for
constructing the tailrace shall also be provided in the licensee’s filing.
The licensee shall prepare the aforementioned drawings and schedule after
consultation with the Alaska Department of Fish and Game;the Alaska Department of
Natural Resources -Division of Mining,Land,and Water Resources Section;the
National Marine Fisheries Service;and the Southern Southeast Regional Aquaculture
Association.The licensee shall include with the drawings documentation of consultation,
copies of agency and stakeholder comments and recommendations on the drawings and
schedule after they have been prepared and provided to the agencies and Southern
Southeast Regional Aquaculture Association,and specific descriptions of how the
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agencies'and Southern Southeast Regional Aquaculture Association’s comments are
accommodated b y the licensee's drawings.The licensee shall allow a minimum of 30
days for the agencies and stakeholders to comment and to make recommendations before
filing the drawings and schedule with the Commission.If the licensee does not adopt a
recommendation,the filing shall include the licensee's reasons,based on project-specific
information.
The Commission reserves the right to require changes to the proposed drawings
and schedule.No land-disturbing or land-clearing activities,associated with the tailrace
construction,shall begin until the licensee is notified by the Commission that the filing is
approved.Upon Commission approval,the licensee shall implement the proposal,
including any changes required by the Commission.
Article 418.Biotic Monitoring Plan.Within one year of license issuance,the
licensee shall file with the Commission,for approval,a Biotic Monitoring Plan.The plan
shall be developed to monitor project-related effects on ocean-run salmonid species
returning to Southern Southeast Regional Aquaculture’s Whitman Fish Hatchery.The
plan shall include detailed methodologies to be implemented for monitoring of false
attraction of fish to the project’s tailrace.Monitoring shall be conducted during the first
two years of project operation from August 1 to November 30 and shall include the
documentation of project tailrace flows as well as hatchery attraction flows.The plan
shall provide a schedule for the filing of an interim report with the Commission after the
first year of monitoring and a final report at the completion of the second year of
monitoring.The reports shall identify any observed effects of project operation on the
behavior of salmonids returning to the Whitman Fish Hatchery as well as any effects the
observed changes in behavior may have on the Whitman Fish Hatchery’s operations.The
final report shall include,if needed,any proposed modifications to project operations,
project facilities,or other mitigative proposals (and proposed schedule for
implementation)to limit any identified project-related effects on the Whitman Fish
Hatchery’s operations.Any proposed modifications to project operations,project
facilities,or other mitigative proposals must be approved by the Commission prior to
implementation.
The licensee shall prepare the Biotic Monitoring Plan,associated reports and any
proposed modifications to project operations,project facilities,or other mitigative
proposals,after consultation with the National Marine Fisheries Service,the Alaska
Department of Fish and Game,and the Southern Southeast Regional Aquaculture
Association.The licensee shall include with the plan the subsequent reports,
documentation of consultation,copies of comments and recommendations on the
completed plan after it has been prepared and provided to the agencies,and specific
descriptions of how the comments are accommodated by the plan and reports.The
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licensee shall allow a minimum of 30 da ys for comments and recommendations before
filing the plan and subsequent reports with the Commission.If the licensee does not
adopt a recommendation,the filings shall include the licensee's reasons,based on project-
specific information.
The Commission reserves the right to require changes to the plan.Project
operation shall not begin until the licensee is notified by the Commission that the plan is
approved.Upon Commission approval,the licensee shall implement the plan,
including any changes required by the Commission.
If the results of the monitoring indicate that changes in project structures or
operations,including tailrace discharges,are necessary to limit false attraction,the
Commission ma y direct the licensee to modify project structures or operations.
Article 419.Terrestrial Connectivity Plan.Within one year of license issuance,
the licensee shall file with the Commission,for approval,a Terrestrial Species
Connectivity Plan to ensure the ability of wildlife to move across the project area.This
plan shall,at a minimum,include:(1)site-specific plans for wildlife crossings and
underpasses along the Achilles Creek diversion pipeline;(2)a minimum of six wildlife
crossings with a width of 3 feet each that provide suitable habitat components (large and
small wood,etc.)to facilitate use by all classes of terrestrial species at the crossings
within one year from license issuance;(3)a monitoring program to determine the
effectiveness of the wildlife crossings for use by all classes of terrestrial species and to
determine locations along the penstocks where additional crossings may be required for
particular classes of terrestrial species;and (4)measures to provide additional crossings if
monitoring results indicate that project waterways or penstocks continue to unduly
restricts movement b y terrestrial species.
The licensee shall prepare the plan after consultation with the U.S.Forest Service,
and the Alaska Department of Fish and Game.The licensee shall include with the plan
documentation of consultation,copies of comments and recommendations on the
completed plan after it has been prepared and provided to the agencies,and specific
descriptions of how the agencies’comments and recommendations are accommodated by
the plan.The licensee shall allow a minimum of 30 days for the agencies to comment
and to make recommendations before filing the plan with the Commission.If the
licensee does not adopt a recommendation,the filing shall include the licensee’s reasons,
based on project-specific information.
The Commission reserves the right to require changes to the plan.No land-
disturbing activities,associated with the construction of the pipelines or penstocks,shall
begin at the project until the licensee is notified by the Commission that the plan is
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approved.Upon Commission approval,the licensee shall implement the plan,
including any changes required by the Commission.
Article 420.Nesting Survey Plan.Within one year of license issuance or at least
90 days prior to any ground-disturbing activity,whichever comes first,the licensee shall
file with the Commission,for approval,a Nesting Surve y Plan to protect any marbled
murrelet,raptor (including hawks,bald eagle,and owls),and great blue heron nesting
habitat located within the pipeline and penstock corridors and access road routes.The
plan shall,at a minimum,include:(1)survey methods,including timing and geographic
scope;(2)measures to consult with the agencies in the event that a nest is found;and (3)
potential mitigation measures in the event that active nesting occurs.
The licensee shall prepare the plan after consultation with the U.S.Fish and
Wildlife Service,the U.S.Forest Service,and the Alaska Department of Fish and Game.
The licensee shall include with the plan documentation of consultation,copies of
comments and recommendations on the completed plan after it has been prepared and
provided to the agencies,and specific descriptions of how the agencies’comments and
recommendations are accommodated by the plan.The licensee shall allow a minimum of
30 days for the agencies to comment and to make recommendations before filing the plan
with the Commission.If the licensee does not adopt a recommendation,the filing shall
include the licensee’s reasons,based on project-specific information.
The Commission reserves the right to require changes to the plan.No land-
disturbing activities,associated with the construction of the pipelines or penstocks shall
begin at the project until the licensee is notified by the Commission that the plan is
approved.Upon Commission approval,the licensee shall implement the plan,including
any changes required by the Commission.
Article 421.Vegetation Management.The licensee shall incorporate the
following provisions into the Noxious Weed Management Plan required b y Forest
Service condition 19 (Appendix A):(1)measures to minimize the clearing of old growth
forest adjacent to the existing pipeline routes and during construction of access roads;and
(2)measures to route the Achilles diversion pipeline around large or otherwise significant
trees,vegetation,woody debris,or wetland areas.
Article 422.Whitman Lake Trail Plan.Within one year of license issuance,the
licensee shall file with the Commission,for approval,a Whitman Lake Trail Plan.The
plan shall include,at minimum:
(1)Identification of the location and trail route connecting the Whitman Fish
Hatchery/project complex area at Herring Cove and Whitman Lake;
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(2)a description and location of a trailhead and parking facilities to accommodate at
least six vehicles;
(3)a description and location of an informative kiosk with a trail map at the trailhead;
(4)provisions for avoiding Southern Southeast Regional Aquaculture Association’s
leased federal lands and,to the extent possible,project facilities;and
(5)an implementation schedule.
The licensee shall prepare the plan after consultation with the U.S.Forest Service,
Southern Southeast Regional Aquaculture Association,Alaska Rainforest Sanctuary,and
all landowners and land management agencies whose land would be traversed b y the
proposed trail route(s)and/or occupied by the proposed location(s)of the trailhead
parking facilities and kiosk.The plan should consider the Forest Service’s effort to
coordinate trail planning with the Ketchikan Outdoor Recreation and Trails Coalition.
The licensee shall include with the plan documentation of the consultation,copies of
comments and recommendations on the completed plan after it has been prepared and
provided to the Forest Service,potentially effected landowners,and the Southern
Southeast Regional Aquaculture Association,and specific descriptions of how the
comments are accommodated b y the plan.The licensee shall allow a minimum of 30
days for the U.S.Forest Service and the Southern Southeast Regional Aquaculture
Association to comment and to make recommendations before filing the plan with the
Commission.If the licensee does not adopt a recommendation,the filing shall include
the licensee's reasons,based on project-specific information.
The Commission reserves the right to require changes to the plan.No land-
disturbing activities,associated with the construction of the trail,parking area or kiosk
shall begin until the licensee is notified by the Commission that the plan is approved.
Upon Commission approval,the licensee shall implement the plan,including any
changes required by the Commission.
Article 423.Programmatic Agreement and Historic Properties Management
Plan.The licensee shall implement the “Programmatic Agreement Among the Federal
Energ y Regulatory Commission (FERC)and the Alaska State Historic Preservation
Officer for Managing Historic Properties That Ma y be Affected by Issuing a License to
Ketchikan Public Utilities for the Operation of the Whitman Lake Project in Ketchikan,
Alaska (FERC No.11841-002),”executed on August 8,2007,and including but not
limited to the Historic Properties Management Plan (HPMP)for the project,as required
by U.S.Forest Service (Forest Service)4(e)condition 13.Pursuant to the requirements
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of this Programmatic Agreement,the licensee shall file for Commission approval,a
final HPMP within six months of license issuance.The final HPMP shall be developed
after consultation with the Alaska State Historic Preservation Officer (SHPO),the Forest
Service,the U.S.Bureau of Land Management,Ketchikan Indian Community,and the
Organized Village of Saxman.In addition to the requirements set forth in Forest Service
4(e)condition 13,the final HPMP shall include Historic American Buildings Survey/
Historic American Engineering Record (HABS/HAER)documentation of the shed,
eligible for listing on the National Register of Historic Places,located along the route of
the project penstock.The licensee shall complete HABS/HAER documentation prior to
any ground-disturbing activities related to the proposed penstock construction.
The Commission reserves the authority to require changes to the HPMP at an y
time during the term of the license.If the Programmatic Agreement is terminated prior to
Commission approval of the HPMP,the licensee shall obtain approval from the
Commission and the Alaska SHPO prior to engaging in any action that may affect
historic properties with the project’s area of potential effects.
Article 424.Notification of Non-Compliance Event.Within 12 hours of the
detection of an event not in compliance with the requirements of this license,the licensee
shall notif y the appropriate resource agencies,including the Alaska Department of Fish
and Game,interested parties,and the Commission of the non-compliance event via
telephone.A detailed written description of the event shall be filed with the Commission
no later than 10 days following the detection of the event.
Article 425.Use and Occupancy.(a)In accordance with the provisions of this
article,the licensee shall have the authority to grant permission for certain types of use
and occupancy of project lands and waters and to convey certain interests in project lands
and waters for certain types of use and occupancy,without prior Commission approval.
The licensee may exercise the authority only if the proposed use and occupancy is
consistent with the purposes of protecting and enhancing the scenic,recreational,and
other environmental values of the project.For those purposes,the licensee shall also
have continuing responsibility to supervise and control the use and occupancies for which
it grants permission,and to monitor the use of,and ensure compliance with the covenants
of the instrument of conveyance for,any interests that it has conveyed,under this article.
If a permitted use and occupancy violates any condition of this article or any other
condition imposed by the licensee for protection and enhancement of the project's scenic,
recreational,or other environmental values,or if a covenant of a conveyance made under
the authority of this article is violated,the licensee shall take any lawful action necessary
to correct the violation.For a permitted use or occupancy,that action includes,if
necessary,canceling the permission to use and occupy the project lands and waters and
requiring the removal of any non-complying structures and facilities.
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(b)The type of use and occupancy of project lands and waters for which the
licensee may grant permission without prior Commission approval are:(1)landscape
plantings;(2)non-commercial piers,landings,boat docks,or similar structures and
facilities that can accommodate no more than 10 water craft at a time and where said
facility is intended to serve single-family type dwellings;(3)embankments,bulkheads,
retaining walls,or similar structures for erosion control to protect the existing shoreline;
and (4)food plots and other wildlife enhancement.To the extent feasible and desirable to
protect and enhance the project's scenic,recreational,and other environmental values,the
licensee shall require multiple use and occupancy of facilities for access to project lands
or waters.The licensee shall also ensure,to the satisfaction of the Commission's
authorized representative,that the use and occupancies for which it grants permission are
maintained in good repair and comply with applicable state and local health and safety
requirements.Before granting permission for construction of bulkheads or retaining
walls,the licensee shall:(1)inspect the site of the proposed construction,(2)consider
whether the planting of vegetation or the use of riprap would be adequate to control
erosion at the site,and (3)determine that the proposed construction is needed and would
not change the basic contour of the impoundment shoreline.To implement this
paragraph (b),the licensee ma y,among other things,establish a program for issuing
permits for the specified types of use and occupancy of project lands and waters,which
may be subject to the payment of a reasonable fee to cover the licensee's costs of
administering the permit program.The Commission reserves the right to require the
licensee to file a description of its standards,guidelines,and procedures for implementing
this paragraph (b)and to require modification of those standards,guidelines,or
procedures.
(c)The licensee may convey easements or rights-of-way across,or leases of
project lands for:(1)replacement,expansion,realignment,or maintenance of bridges or
roads where all necessary state and federal approvals have been obtained;(2)storm
drains and water mains;(3)sewers that do not discharge into project waters;(4)minor
access roads;(5)telephone,gas,and electric utility distribution lines;(6)non-project
overhead electric transmission lines that do not require erection of support structures
within the project boundary;(7)submarine,overhead,or underground major telephone
distribution cables or major electric distribution lines (69-kV or less);and (8)water
intake or pumping facilities that do not extract more than one million gallons per day
from a project impoundment.No later than January 31 of each year,the licensee shall
file three copies of a report briefly describing for each conveyance made under this
paragraph (c)during the prior calendar year,the type of interest conveyed,the location of
the lands subject to the conveyance,and the nature of the use for which the interest was
conveyed.If no conveyance was made during the prior calendar year,the licensee shall
so inform the Commission in writing no later than January 31 of each year.
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(d)The licensee may conve y fee title to,easements or rights-of-wa y across,or
leases of project lands for:(1)construction of new bridges or roads for which all
necessary state and federal approvals have been obtained;(2)sewer or effluent lines that
discharge into project waters,for which all necessary federal and state water quality
certification or permits have been obtained;(3)other pipelines that cross project lands or
waters but do not discharge into project waters;(4)non-project overhead electric
transmission lines that require erection of support structures within the project boundary,
for which all necessary federal and state approvals have been obtained;(5)private or
public marinas that can accommodate no more than 10 water craft at a time and are
located at least one-half mile (measured over project waters)from any other private or
public marina;(6)recreational development consistent with an approved report on
recreational resources of an Exhibit E;and (7)other uses,if:(i)the amount of land
conveyed for a particular use is five acres or less;(ii)all of the land conve yed is located
at least 75 feet,measured horizontally,from project waters at normal surface elevation;
and (iii)no more than 50 total acres of project lands for each project development are
conveyed under this clause (d)(7)in any calendar year.At least 60 days before
conveying an y interest in project lands under this paragraph (d),the licensee must submit
a letter to the Director,Office of Energy Projects,stating its intent to convey the interest
and briefly describing the type of interest and location of the lands to be conveyed (a
marked Exhibit G map may be used),the nature of the proposed use,the identity of any
federal or state agency official consulted,and any federal or state approvals required for
the proposed use.Unless the Director,within 45 days from the filing date,requires the
licensee to file an application for prior approval,the licensee ma y convey the intended
interest at the end of that period.
(e)The following additional conditions apply to any intended conveyance under
paragraph (c)or (d)of this article:
(1)Before conveying the interest,the licensee shall consult with federal and state
fish and wildlife or recreation agencies,as appropriate,and the State Historic
Preservation Officer.
(2)Before conveying the interest,the licensee shall determine that the proposed
use of the lands to be conveyed is not inconsistent with any approved report on
recreational resources of an Exhibit E;or,if the project does not have an approved report
on recreational resources,that the lands to be conveyed do not have recreational value.
(3)The instrument of conveyance must include the following covenants running
with the land:(i)the use of the lands conveyed shall not endanger health,create a
nuisance,or otherwise be incompatible with overall project recreational use;and (ii)the
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grantee shall take all reasonable precautions to ensure that the construction,operation,
and maintenance of structures or facilities on the conveyed lands will occur in a manner
that will protect the scenic,recreational,and environmental values of the project.
(4)The Commission reserves the right to require the licensee to take reasonable
remedial action to correct any violation of the terms and conditions of this article,for the
protection and enhancement of the project's scenic,recreational,and other environmental
values.
(f)The conveyance of an interest in project lands under this article does not in
itself change the project boundaries.The project boundaries may be changed to exclude
land conveyed under this article only upon approval of revised Exhibit G drawings
(project boundar y maps)reflecting exclusion of that land.Lands conveyed under this
article will be excluded from the project only upon a determination that the lands are not
necessary for project purposes,such as operation and maintenance,flowage,recreation,
public access,protection of environmental resources,and shoreline control,including
shoreline aesthetic values.Absent extraordinary circumstances,proposals to exclude
lands conveyed under this article from the project shall be consolidated for consideration
when revised Exhibit G drawings would be filed for approval for other purposes.
(g)The authority granted to the licensee under this article shall not apply to an y
part of the public lands and reservations of the United States included within the project
boundary.
(F)The licensee shall serve copies of any Commission filing required by
this order on any entity specified in the order to be consulted on matters relating
to that filing.Proof of service on these entities must accompany the filing with
the Commission.
(G)This order is final unless a request for rehearing is filed within 30
days from the date of its issuance,as provided in section 313(a)of the FPA,
16 U.S.C.§8251 (2006),and section 385.713 of the Commission’s regulations,
18 C.F.R.§385.713 (2008).The filing of a request for rehearing does not
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Project No.11841-002 52
operate as a sta y of the effective date of this license or of an y other date specified in
this order,except as specifically ordered by the Commission.The licensee's
failure to file a request for rehearing shall constitute acceptance of this order.
J.Mark Robinson
Director
Office of Energy Projects
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Form L-2
(October,1975)
FEDERAL ENERGY REGULATORY COMMISSION
TERMS AND CONDITIONS OF LICENSE FOR
UNCONSTRUCTED MAJOR PROJECT AFFECTING
LANDS OF THE UNITED STATES
Article 1.The entire project,as described in this order of the Commission,shall
be subject to all of the provisions,terms,and conditions of the license.
Article 2.No substantial change shall be made in the maps,plans,specifications,
and statements described and designated as exhibits and approved by the Commission in
its order as a part of the license until such change shall have been approved b y the
Commission:Provided,however,that if the Licensee or the Commission deems it
necessary or desirable that said approved exhibits,or any of them,be changed,there shall
be submitted to the Commission for approval a revised,or additional exhibit or exhibits
covering the proposed changes which,upon approval b y the Commission,shall become a
part of the license and shall supersede,in whole or in part,such exhibit or exhibits
theretofore made a part of the license as ma y be specified b y the Commission.
Article 3.The project works shall be constructed in substantial conformity with
the approved exhibits referred to in Article 2 herein or as changed in accordance with the
provisions of said article.Except when emergency shall require for the protection of
navigation,life,health,or property,there shall not be made without prior approval of the
Commission an y substantial alteration or addition not in conformity with the approved
plans to an y dam or other project works under the license or any substantial use of project
lands and waters not authorized herein;and any emergency alteration,addition,or use so
made shall thereafter be subject to such modification and change as the Commission may
direct.Minor changes in project works,or in uses of project lands and waters,or
divergence from such approved exhibits may be made if such changes will not result in a
decrease in efficiency,in a material increase in cost,in an adverse environmental impact,
or in impairment of the general scheme of development;but any of such minor changes
made without the prior approval of the Commission,which in its judgment have
produced or will produce any of such results,shall be subject to such alteration as the
Commission may direct.
Upon the completion of the project,or at such other time as the Commission may
direct,the Licensee shall submit to the Commission for approval revised exhibits insofar
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Project No.11841-002 54
as necessary to show any divergence from or variations in the project area and project
boundary as finally located or in the project works as actually constructed when
compared with the area and boundary shown and the works described in the license or in
the exhibits approved by the Commission,together with a statement in writing setting
forth the reasons which in the opinion of the Licensee necessitated or justified variation
in or divergence from the approved exhibits.Such revised exhibits shall,if and when
approved by the Commission,be made a part of the license under the provisions of
Article 2 hereof.
Article 4.The construction,operation,and maintenance of the project and any
work incidental to additions or alterations shall be subject to the inspection and
supervision of the Regional Engineer,Federal Energy Regulatory Commission,in the
region wherein the project is located,or of such other officer or agent as the Commission
may designate,who shall be the authorized representative of the Commission for such
purposes.The Licensee shall cooperate fully with said representative and shall furnish
him a detailed program of inspection b y the Licensee that will provide for an adequate
and qualified inspection force for construction of the project and for any subsequent
alterations to the project.Construction of the project works or any features or alteration
thereof shall not be initiated until the program of inspection for the project works or any
such feature thereof has been approved b y said representative.The Licensee shall also
furnish to said representative such further information as he ma y require concerning the
construction,operation,and maintenance of the project,and of any alteration thereof,and
shall notif y him of the date upon which work will begin,as far in advance thereof as said
representative ma y reasonably specify,and shall notify him promptly in writing of any
suspension of work for a period of more than one week,and of its resumption and
completion.The Licensee shall allow said representative and other officers or employees
of the United States,showing proper credentials,free and unrestricted access to,through,
and across the project lands and project works in the performance of their official duties.
The Licensee shall comply with such rules and regulations of general or special
applicability as the Commission ma y prescribe from time to time for the protection of
life,health,or property.
Article 5.The Licensee,within five years from the date of issuance of the license,
shall acquire title in fee or the right to use in perpetuity all lands,other than lands of the
United States,necessary or appropriate for the construction,maintenance,and operation
of the project.The Licensee or its successors and assigns shall,during the period of the
license,retain the possession of all project property covered by the license as issued or as
later amended,including the project area,the project works,and all franchises,
easements,water rights,and rights of occupancy and use;and none of such properties
shall be voluntarily sold,leased,transferred,abandoned,or otherwise disposed of without
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the prior written approval of the Commission,except that the Licensee may lease or
otherwise dispose of interests in project lands or property without specific written
approval of the Commission pursuant to the then current regulations of the Commission.
The provisions of this article are not intended to prevent the abandonment or the
retirement from service of structures,equipment,or other project works in connection
with replacements thereof when they become obsolete,inadequate,or inefficient for
further service due to wear and tear;and mortgage or trust deeds or judicial sales made
thereunder,or tax sales,shall not be deemed voluntary transfers within the meaning of
this article.
Article 6.In the event the project is taken over by the United States upon the
termination of the license as provided in Section 14 of the Federal Power Act,or is
transferred to a new Licensee or to a nonpower Licensee under the provisions of Section
15 of said Act,the Licensee,its successors and assigns shall be responsible for,and shall
make good any defect of title to,or of right of occupanc y and use in,any of such project
property that is necessary or appropriate or valuable and serviceable in the maintenance
and operation of the project,and shall pay and discharge,or shall assume responsibility
for payment and discharge of,all liens or encumbrances upon the project or project
property created by the Licensee or created or incurred after the issuance of the license:
Provided,That the provisions of this article are not intended to require the Licensee,for
the purpose of transferring the project to the United States or to a new Licensee,to
acquire any different title to,or right of occupancy and use in,any of such project
property than was necessary to acquire for its own purposes as the Licensee.
Article 7.The actual legitimate original cost of the project,and of any addition
thereto or betterment thereof,shall be determined b y the Commission in accordance
with the Federal Power Act and the Commission's Rules and Regulations thereunder.
Article 8.The Licensee shall install and thereafter maintain gages and stream-
gaging stations for the purpose of determining the state and flow of the stream or streams
on which the project is located,the amount of water held in and withdrawn from storage,
and the effective head on the turbines;shall provide for the required reading of such
gages and for the adequate rating of such stations;and shall install and maintain standard
meters adequate for the determination of the amount of electric energy generated by the
project works.The number,character,and location of gages,meters,or other measuring
devices,and the method of operation thereof,shall at all times be satisfactory to the
Commission or its authorized representative.The Commission reserves the right,after
notice and opportunity for hearing,to require such alterations in the number,character
and locations of gages,meters,or other measuring devices,and the method of operation
thereof,as are necessary to secure adequate determinations.The installation of gages,the
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rating of said stream or streams,and the determination of the flow thereof,shall be under
the supervision of,or in cooperation with,the District Engineer of the United States
Geological Survey having charge of stream-gaging operations in the region of the project,
and the Licensee shall advance to the United States Geological Survey the amount of
funds estimated to be necessary for such supervision,or cooperation for such periods as
may be mutually agreed upon.The Licensee shall keep accurate and sufficient records of
the foregoing determinations to the satisfaction of the Commission,and shall make return
of such records annually at such time and in such form as the Commission may prescribe.
Article 9.The Licensee shall,after notice and opportunity for hearing,install
additional capacity or make other changes in the project as directed by the Commission,
to the extent that it is economically sound and in the public interest to do so.
Article 10.The Licensee shall,after notice and opportunity for hearing,
coordinate the operation of the project,electrically and hydraulically,with such other
projects or power systems and in such manner as the Commission may direct in the
interest of power and other beneficial public uses of water resources,and on such
conditions concerning the equitable sharing of benefits by the Licensee as the
Commission may order.
Article 11.Whenever the Licensee is directly benefited by the construction work
of another Licensee,a permittee,or the United States on a storage reservoir or other
headwater improvement,the Licensee shall reimburse the owner of the headwater
improvement for such part of the annual charges for interest,maintenance,and
depreciation thereof as the Commission shall determine to be equitable,and shall pay to
the United States the cost of making such determination as fixed by the Commission.For
benefits provided by a storage reservoir or other headwater improvement of the United
States,the Licensee shall pay to the Commission the amounts for which it is billed from
time to time for such headwater benefits and for the cost of making the determinations
pursuant to the then current regulations of the Commission under the Federal Power Act.
Article 12.The operations of the Licensee,so far as they affect the use,storage
and discharge from storage of waters affected by the license,shall at all times be
controlled by such reasonable rules and regulations as the Commission may prescribe for
the protection of life,health,and property,and in the interest of the fullest practicable
conservation and utilization of such waters for power purposes and for other beneficial
public uses,including recreational purposes,and the Licensee shall release water from
the project reservoir at such rate in cubic feet per second,or such volume in acre-feet per
specified period of time,as the Commission may prescribe for the purposes hereinbefore
mentioned.
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Article 13.On the application of any person,association,corporation,Federal
Agency,State or municipality,the Licensee shall permit such reasonable use of its
reservoir or other project properties,including works,lands and water rights,or parts
thereof,as may be ordered by the Commission,after notice and opportunity for hearing,
in the interests of comprehensive development of the waterway or waterways involved
and the conservation and utilization of the water resources of the region for water supply
or for the purposes of steam-electric,irrigation,industrial,municipal or similar uses.The
Licensee shall receive reasonable compensation for use of its reservoir or other project
properties or parts thereof for such purposes,to include at least full reimbursement for
any damages or expenses which the joint use causes the Licensee to incur.Any such
compensation shall be fixed by the Commission either b y approval of an agreement
between the Licensee and the party or parties benefiting or after notice and opportunity
for hearing.Applications shall contain information in sufficient detail to afford a full
understanding of the proposed use,including satisfactory evidence that the applicant
possesses necessary water rights pursuant to applicable State law,or a showing of cause
wh y such evidence cannot concurrently be submitted,and a statement as to the
relationship of the proposed use to any State or municipal plans or orders which may
have been adopted with respect to the use of such waters.
Article 14.In the construction or maintenance of the project works,the Licensee
shall place and maintain suitable structures and devices to reduce to a reasonable degree
the liability of contact between its transmission lines and telegraph,telephone and other
signal wires or power transmission lines constructed prior to its transmission lines and
not owned by the Licensee,and shall also place and maintain suitable structures and
devices to reduce to a reasonable degree the liability of any structures and devices to
reduce to a reasonable degree the liability of any structures or wires falling or obstructing
traffic or endangering life.None of the provisions of this article are intended to relieve
the Licensee from any responsibility or requirement which may be imposed b y any other
lawful authority for avoiding or eliminating inductive interference.
Article 15.The Licensee shall,for the conservation and development of fish and
wildlife resources,construct,maintain,and operate,or arrange for the construction,
maintenance,and operation of such reasonable facilities,and comply with such
reasonable modifications of the project structures and operation,as may be ordered by the
Commission upon its own motion or upon the recommendation of the Secretary of the
Interior or the fish and wildlife agency or agencies of any State in which the project or a
part thereof is located,after notice and opportunity for hearing.
Article 16.Whenever the United States shall desire,in connection with the
project,to construct fish and wildlife facilities or to improve the existing fish and wildlife
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facilities at its own expense,the Licensee shall permit the United States or its designated
agency to use,free of cost,such of the Licensee's lands and interests in lands,reservoirs,
waterways and project works as may be reasonably required to complete such facilities or
such improvements thereof.In addition,after notice and opportunity for hearing,the
Licensee shall modify the project operation as ma y be reasonably prescribed by the
Commission in order to permit the maintenance and operation of the fish and wildlife
facilities constructed or improved b y the United States under the provisions of this article.
This article shall not be interpreted to place any obligation on the United States to
construct or improve fish and wildlife facilities or to relieve the Licensee of any
obligation under this license.
Article 17.The Licensee shall construct,maintain,and operate,or shall arrange
for the construction,maintenance,and operation of such reasonable recreational facilities,
including modifications thereto,such as access roads,wharves,launching ramps,
beaches,picnic and camping areas,sanitary facilities,and utilities,giving consideration
to the needs of the physically handicapped,and shall comply with such reasonable
modifications of the project,as may be prescribed hereafter by the Commission during
the term of this license upon its own motion or upon the recommendation of the Secretary
of the Interior or other interested Federal or State agencies,after notice and opportunity
for hearing.
Article 18.So far as is consistent with proper operation of the project,the
Licensee shall allow the public free access,to a reasonable extent,to project waters and
adjacent project lands owned by the Licensee for the purpose of full public utilization of
such lands and waters for navigation and for outdoor recreational purposes,including
fishing and hunting:Provided,That the Licensee may reserve from public access such
portions of the project waters,adjacent lands,and project facilities as may be necessary
for the protection of life,health,and property.
Article 19.In the construction,maintenance,or operation of the project,the
Licensee shall be responsible for,and shall take reasonable measures to prevent,soil
erosion on lands adjacent to streams or other waters,stream sedimentation,and an y form
of water or air pollution.The Commission,upon request or upon its own motion,may
order the Licensee to take such measures as the Commission finds to be necessar y for
these purposes,after notice and opportunity for hearing.
Article 20.The Licensee shall consult with the appropriate State and Federal
agencies and,within one year of the date of issuance of this license,shall submit for
Commission approval a plan for clearing the reservoir area.Further,the Licensee shall
clear and keep clear to an adequate width lands along open conduits and shall dispose
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of all temporary structures,unused timber,brush,refuse,or other material unnecessary
for the purposes of the project which results from the clearing of lands or from the
maintenance or alteration of the project works.In addition,all trees along the periphery
of project reservoirs which may die during operations of the project shall be removed.
Upon approval of the clearing plan all clearing of the lands and disposal of the
unnecessary material shall be done with due diligence and to the satisfaction of the
authorized representative of the Commission and in accordance with appropriate
Federal,State,and local statues and regulations.
Article 21.Timber on lands of the United State cut,used,or destroyed in the
construction and maintenance of the project works,or in the clearing of said lands,shall
be paid for,and the resulting slash and debris disposed of,in accordance with the
requirements of the agency of the United States having jurisdiction over said lands.
Pa yment for merchantable timber shall be at current stumpage rates,and payment for
young growth timber below merchantable size shall be at current damage appraisal
values.However,the agency of the United States having jurisdiction ma y sell or dispose
of the merchantable timber to others than the Licensee:Provided,That timber so sold or
disposed of shall be cut and removed from the area prior to,or without undue interference
with,clearing operations of the Licensee and in coordination with the Licensee's project
construction schedules.Such sale or disposal to others shall not relieve the Licensee of
responsibility for the clearing and disposal of all slash and debris from project lands.
Article 22.The Licensee shall do everything reasonably within its power,and
shall require its employees,contractors,and employees of contractors to do everything
reasonabl y within their power,both independently and upon the request of officers of
the agency concerned,to prevent,to make advance preparations for suppression of,and
to suppress fires on the lands to be occupied or used under the license.The Licensee
shall be liable for and shall pay the costs incurred b y the United States in suppressing
fires caused from the construction,operation,or maintenance of the project works or of
the works appurtenant or accessory thereto under the license.
Article 23.The Licensee shall interpose no objection to,and shall in no wa y
prevent,the use by the agency of the United States having jurisdiction over the lands
of the United States affected,or b y persons or corporations occupying lands of the
United States under permit,of water for fire suppression from an y stream,conduit,or
bod y of water,natural or artificial,used by the Licensee in the operation of the project
works covered by the license,or the use by said parties of water for sanitary and
domestic purposes from any stream,conduit,or body of water,natural or artificial,
used by the Licensee in the operation of the project works covered b y the license.
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Article 24.The Licensee shall be liable for injury to,or destruction of,any
buildings,bridges,roads,trails,lands,or other property of the United States,occasioned
by the construction,maintenance,or operation of the project works or of the works
appurtenant or accessory thereto under the license.Arrangements to meet such liability,
either by compensation for such injury or destruction,or b y reconstruction or repair of
damaged property,or otherwise,shall be made with the appropriate department or
agency of the United States.
Article 25.The Licensee shall allow any agency of the United States,without
charge,to construct or permit to be constructed on,through,and across those project
lands which are lands of the United States such conduits,chutes,ditches,railroads,roads,
trails,telephone and power lines,and other routes or means of transportation and
communication as are not inconsistent with the enjoyment of said lands b y the Licensee
for the purposes of the license.This license shall not be construed as conferring upon the
Licensee any right of use,occupancy,or enjo yment of the lands of the United States
other than for the construction,operation,and maintenance of the project as stated in the
license.
Article 26.In the construction and maintenance of the project,the location and
standards of roads and trails on lands of the United States and other uses of lands of the
United States,including the location and condition of quarries,borrow pits,and spoil
disposal areas,shall be subject to the approval of the department or agency of the
United States having supervision over the lands involved.
Article 27.The Licensee shall make provision,or shall bear the reasonable cost,
as determined by the agency of the United States affected,of making provision for
avoiding inductive interference between any project transmission line or other project
facility constructed,operated,or maintained under the license,and any radio installation,
telephone line,or other communication facility installed or constructed before or after
construction of such project transmission line or other project facility and owned,
operated,or used by such agency of the United States in administering the lands under its
jurisdiction.
Article 28.The Licensee shall make use of the Commission's guidelines and other
recognized guidelines for treatment of transmission line rights-of-way,and shall clear
such portions of transmission line rights-of-way across lands of the United States as are
designated b y the officer of the United States in charge of the lands;shall keep the areas
so designated clear of new growth,all refuse,and inflammable material to the satisfaction
of such officer;shall trim all branches of trees in contact with or liable to contact the
transmission lines;shall cut and remove all dead or leaning trees which might fall in
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contact with the transmission lines;and shall take such other precautions against fire as
may be required b y such officer.No fires for the burning of waste material shall be set
except with the prior written consent of the officer of the United States in charge of the
lands as to time and place.
Article 29.The Licensee shall cooperate with the United States in the disposal by
the United States,under the Act of July 3l,1947,61 Stat.681,as amended (30 U.S.C.
sec.601,et seq.),of mineral and vegetative materials from lands of the United States
occupied by the project or an y part thereof:Provided,That such disposal has been
authorized by the Commission and that it does not unreasonabl y interfere with the
occupanc y of such lands by the Licensee for the purposes of the license:Provided further,
That in the event of disagreement,any question of unreasonable interference shall be
determined by the Commission after notice ad opportunity for hearing.
Article 30.If the Licensee shall cause or suffer essential project property to be
removed or destroyed or to become unfit for use,without adequate replacement,or shall
abandon or discontinue good faith operation of the project or refuse or neglect to comply
with the terms of the license and the lawful orders of the Commission mailed to the
record address of the Licensee or its agent,the Commission will deem it to be the intent
of the Licensee to surrender the license.The Commission,after notice and opportunity
for hearing,ma y require the Licensee to remove any or all structures,equipment and
power lines within the project boundary and to take any such other action necessary to
restore the project waters,lands,and facilities remaining within the project boundary to a
condition satisfactory to the United States agency having jurisdiction over its lands or the
Commission's authorized representative,as appropriate,or to provide for the continued
operation and maintenance of nonpower facilities and fulfill such other obligations under
the license as the Commission may prescribe.In addition,the Commission in its
discretion,after notice and opportunity for hearing,may also agree to the surrender of the
license when the Commission,for the reasons recited herein,deems it to be the intent of
the Licensee to surrender the license.
Article 31.The right of the Licensee and of its successors and assigns to use or
occupy waters over which the United States has jurisdiction,or lands of the United States
under the license,for the purpose of maintaining the project works or otherwise,shall
absolutely cease at the end of the license period,unless the Licensee has obtained a new
license pursuant to the then existing laws and regulations,or an annual license under the
terms and conditions of this license.
Article 32.The terms and conditions expressly set forth in the license shall not be
construed as impairing any terms and conditions of the Federal Power Act which are not
expressly set forth herein.
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APPENDIX A
U.S.Forest Service
Section 4(e)Terms and Conditions filed January 27,2006.
Condition No.1 -Requirement to Obtain a Forest Service Special-Use
Authorization
The Licensee shall obtain a special-use authorization from the Forest Service for
the occupancy and use of National Forest System lands.The licensee shall obtain the
executed authorization before beginning ground-disturbing activities on National Forest
System lands or within one year of license issuance if no construction or reconstruction
was proposed in the application for license.
The Licensee may commence ground-disturbing activities authorized by the
License and special use authorization no sooner than 60 days following the date the
licensee files the Forest Service special-use authorization with the Commission,unless
the Commission prescribes a different commencement schedule.
In the event there is a conflict between any provisions of the license and Forest
Service special use authorization,the special-use authorization shall prevail to the extent
that the Forest Service,in consultation with the Commission,deems necessary to protect
and utilize National Forest System resources.
Condition No.2 -Forest Service Approval of Final Design
Prior to undertaking activities on National Forest System lands (NFSL),the
Licensee shall obtain written approval from the USDA Forest Service for all final design
plans for project components that the USDA Forest Service deems as affecting or
potentially affecting National Forest System lands and resources.As part of such prior
written approval,the USDA Forest Service may require adjustments in final design plans
and facility locations to preclude or mitigate impacts and to assure that the project is
compatible with on-the-ground conditions.Should the USDA Forest Service,the
Commission,or the Licensee determine that necessary changes are a substantial change,
the Licensee shall follow the procedures of Article 2 of the license.Any changes to the
license made for any reason pursuant to Article 2 or Article 3 shall be made subject to
any new terms and conditions the Secretary of Agriculture ma y make pursuant to section
4(e)of the Federal Power Act.
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Condition No.3 -Approval of Changes After Initial Construction
Notwithstanding any license authorization to make changes to the project,the
Licensee shall obtain written approval from the Forest Service prior to making any
changes in any constructed project features or facilities,or in the uses of project lands and
waters the Forest Service deems as affecting or potentially affecting National Forest
System lands and resources.Following receipt of such approval from the Forest Service,
and a minimum of 60 days prior to initiating any such changes,the Licensee shall file a
report with the Commission describing the changes,the reasons for the changes,and
showing the approval of the Forest Service for such changes.The Licensee shall file an
exact copy of this report with the Forest Service at the same time it is filed with the
Commission.This article does not relieve the Licensee from the requirement for license
amendment or other requirements of Article 2 or Article 3 of this license.Any changes to
the license made for any reason pursuant to Article 2 or Article 3 shall be made subject to
any new terms and conditions the Secretar y of Agriculture ma y make pursuant to section
4(e)of the Federal Power Act.
Condition No.4 –Consultation
Each year during the 60 days preceding the anniversary of this license,or as
arranged with the Forest Service,the Licensee shall consult with the Forest Service with
regard to measures needed to ensure protection and utilization of the National Forest
System lands and resources affected by the Project.Information provided at the meeting
will include a record of daily lake levels on Whitman Lake for the previous year.Within
60 days following such consultation,the Licensee shall file with the Commission
evidence of the consultation with any recommendations made by the Forest Service.The
Forest Service reserves the right,after notice and opportunity for comment and
administrative review,to require changes in the project and its operation through revision
of the 4(e)conditions that require measures necessary to accomplish protection and
utilization of National Forest System lands and resources.
Condition No.5 -Surrender of License or Transfer of Ownership
Prior to any surrender of this license,the Licensee shall restore National Forest
System lands to a condition satisfactory to the Forest Service.At least 1 year in advance
of the proposed application for license surrender,the Licensee shall file with the
Commission a restoration plan approved by the Forest Service.The restoration plan shall
identify improvements to be removed,restoration measures,and time frames for
implementation and estimated restoration costs.In addition,the Licensee shall pay for an
independent audit to assist the Forest Service in determining whether the Licensee has the
financial ability to fund the surrender and restoration work specified in the plan.
As a condition of any transfer of the license or sale of the project,the Licensee
shall guarantee or assure,in a manner satisfactory to the Forest Service,that the Licensee
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or transferee will provide for the costs of surrender and restoration.
Condition 6-Hazardous Substances Plan
During planning for and at least 60 days prior to an y new construction or
maintenance,the Licensee shall file with the Commission,a Hazardous Substances Plan
approved by the Forest Service for oil and hazardous substances storage and spill
prevention and cleanup.At a minimum,the Licensee shall:
•Outline the Licensee’s procedures for reporting and responding to releases of
hazardous substances,including names and phone numbers of all emergency
response personnel and their assigned responsibilities;
•Maintain in the project area,a cache of spill cleanup equipment suitable to contain
any spill from the project;
•Inform the Forest Service of the location of the spill cleanup equipment on NFS
lands and of the location,type,and quantity of oil and hazardous substances stored
in the project area;and
•Inform the Forest Service quarterly of the nature,time,date,location,and action
taken for any spill.
Condition 7 -Use of Explosives
In the use of explosives,the Licensee shall exercise the utmost care not to
endanger life or property and shall comply with Federal,State and local laws and
ordinances.The Licensee shall contact the Forest Service prior to blasting to obtain the
requirements of the Forest Service.The Licensee shall be responsible for any and all
damages resulting from the use of explosives and shall adopt precautions to prevent
damage to surrounding objects.The Licensee shall furnish and erect special signs to warn
the public of the Licensee’s blasting operations.
The Licensee shall place and maintain such signs so they are clearly evident to the
public during all critical periods of the blasting operations.
The Licensee shall store all explosives on National Forest System lands and
Licensee adjoining fee title property in compliance with all applicable Federal,State and
local laws and ordinances.When using explosives on National Forest System lands and
Licensee adjoining fee title property,the Licensee shall adopt precautions to prevent
damage to landscape features and other surrounding objects.When directed b y the Forest
Service,the Licensee shall leave trees within an area designated to be cleared as a
protective screen for surrounding vegetation during blasting operations.The Licensee
shall remove and dispose of trees so left when blasting is complete.When necessary,and
at any point of special danger,the Licensee shall use suitable mats or some other
approved method to smother blasts.
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Condition No.8 -Administrative Access Easement Acquisition
The Licensee shall acquire,without contribution or compensation by the United
States,the easements necessary for governmental administrative access to all project
facilities that Licensee will construct that are not located on National Forest System land.
The easements shall be in the name of the United States.Licensee shall obtain Forest
Service approval of the easement language and evidence of unencumbered title to the
easement prepared by a certified title examiner prior to execution of the easement.
Condition No.9 -Public Access Easement Acquisition
The Licensee shall acquire,without contribution or compensation by the United
States,an easement in the name of the United States for the location and governmental
and public use for the portions the proposed Achilles Mountain Trail that are not located
on National Forest System land.Licensee shall obtain Forest Service approval of the
easement language and evidence of unencumbered title to the easement prepared by a
certified title examiner prior to execution of the easement.
Condition 10 –Maintenance of Improvements
The Licensee shall maintain all its improvements and premises on National Forest
System lands to standards of repair,orderliness,neatness,sanitation,and safety
acceptable to the Forest Service.The Licensee shall comply with all applicable Federal,
State,and local laws,regulations,including but not limited to,the Federal Water
Pollution Control Act,33 U.S.C.1251 et seq.,the Resources Conservation and Recovery
Act,42 U.S.C.6901 et seq.,the Comprehensive Environmental Response,Control,and
Liability Act,42 U.S.C.9601 et seq.,and other relevant environmental laws,as well as
public health and safety laws and other laws relating to the citing,construction,operation,
maintenance of any facility,improvement,or equipment.
Condition 11 -Safety During Project Construction
Within 60 days of ground-disturbing activity,the Licensee shall file with the
Commission a Safety During Construction Plan that identifies potential hazard areas and
measures necessary to protect public safety.Areas to consider include construction
activities near public roads,trails and recreation area and facilities.
The Licensee shall perform daily (or on a schedule otherwise agreed to by the
Forest Service in writing)inspections of Licensee’s construction operations on National
Forest System lands and Licensee adjoining fee title property while construction is in
progress.The Licensee shall document these inspections (informal writing sufficient)and
shall deliver such documentation to the Forest Service on a schedule agreed to b y the
Forest Service.The inspections must specifically include fire plan compliance,public
safety,and environmental protection.The Licensee shall act immediately to correct any
items found to need correction.
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Condition 12 -Pesticide Use Restrictions
Pesticides may not be used to control undesirable wood y and herbaceous
vegetation,aquatic plants,insects,and rodents on National Forest System lands without
the prior written approval of the Forest Service.The Licensee shall submit a request for
approval of planned uses of pesticides.The request must cover annual planned use and be
updated as required by the Forest Service.The Licensee shall provide information
essential for review in the form specified.Exceptions to this schedule may be allowed
only when unexpected outbreaks of pests require control measures that were not
anticipated at the time the request was submitted.In such an instance,an emergency
request and approval may be made.
The Licensee shall use on National Forest System lands only those materials
registered by the U.S.Environmental Protection Agency for the specific purpose planned.
The Licensee must strictly follow label instructions in the preparation and application of
pesticides and disposal of excess materials and containers.
Condition No.13 -Heritage Resource Protection
Prior to commencement of any construction,development,or
modification/replacement of any project works or other facilities at the project,the
Licensee shall consult and cooperate with the Forest Service and the State Historic
Preservation Officer (SHPO)to determine the need for,and extent of,any archeological
or historic resource surveys and any mitigating measures that ma y be necessary.The
Licensee shall provide funds in a reasonable amount for such activity.If any previously
unrecorded archeological or historic sites are discovered during the course of
construction,activity in the vicinity shall be halted,a qualified archeologist shall be
consulted to determine the significance of the sites,and the Licensee shall consult with
the Forest Service and SHPO to develop a mitigation plan for the protection of significant
archeological or historic resources.If the Licensee,Forest Service and SHPO cannot
agree on the amount of mone y to be expended on archeological or historic work related
to the project,the Commission reserves the right to require the Licensee to conduct,at its
own expense,any such work found necessary.
The Licensee shall not initiate an y work other than that specifically authorized in
this license,before (1)consulting with the Forest Service and the Alaska State Historic
Preservation Officer (SHPO),(2)conducting a heritage resources survey of these areas,
and (3)filing for Commission approval a heritage resources management plan to avoid or
mitigate impacts to any archeological,cultural or historic sites identified during the
survey.The survey and plan shall be based on the recommendations of the Forest
Service,with SHPO concurrence,and shall be conducted and prepared by a qualified
cultural resources specialist.
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If the Licensee discovers any previously unidentified archeological or historic sites
during the course of constructing or developing project works or other facilities at the
project,the Licensee shall stop all land clearing,land disturbing,or spoil producing
activities in the vicinity of the site.The Licensee shall have already established an MOU
with the Organized Village of Saxman,the Cape Fox Corporation,the Ketchikan Indian
Corporation or the Tongass Tribal Council (Tribal Governments in Ketchikan),the Forest
Service,and Alaska SHPO for the unexpected discovery of cultural resources during the
work.The Licensee shall file for Commission approval of the MOU,which shall in
essence be a heritage resources management plan to avoid or mitigate impacts,prepared
by a qualified cultural resources management specialist in consultation with the Forest
Service,the SHPO and the Commission.
The survey and plan shall be documented in a report that shall contain the
following:
1)A description of the three discovered sites,indicating whether it is listed or
eligible to be listed on the National Register of Historic Places;
2)A description of the potential effects of the project on each site;
3)Proposed measures for avoiding or mitigating the effects on each site;
4)Documentation of the nature and extent of consultation;and
5)A schedule for mitigating effects and conducting additional studies.
The Commission ma y require changes to the plan or report.
There are three known sites located within the project construction area.The
Whitman Lake Dam (KET-797)and the Whitman Lake Tool Shed (KET-798)have been
determined to be eligible for nomination to the National Register of Historic Places at the
Local level of significance (see SHPO letter,dated 12/5/2005).The Whitman Lake Log
Crib Dam (KET-796)is not eligible for nomination to the National Register.The
Heritage Resource Management Plan must address how any potential effects of the
project on these sites will be treated during the course of the project.
Should new sites be found during construction,the sites will be flagged and
avoided.It will be the responsibility of the operator to avoid impacting any such sites
during project construction.
The on-the-ground contract administrator shall be familiar with site recognition.
Training will be made available to the inspector for recognition,site inspection and
protection as necessary.
The Licensee shall not begin land clearing,land disturbing,or spoil producing
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activities,other than those specifically authorized in this license,or resume activities in
the vicinity of a site discovered during construction,until informed by the Commission
that the requirements of this article have been fulfilled.
Condition 14 -Scenery Management Plan
Within 60 days prior to an y ground-disturbing activity,the Licensee shall file with
Commission a Scenery Management Plan that is approved by the Forest Service.At a
minimum,the Plan shall address:
•Clearings,and project facilities like diversion structures,penstocks,and pipes;
•Facility configurations,alignments,building materials,and colors;
•Proposed mitigation and implementation schedule necessary to bring project
facilities into compliance with 1997 Tongass Land and Resource Management
Plan direction and the Visual Management System Handbook.
Mitigation measures shall include,but are not limited to:
•Keep vegetation clearing to a minimum and within proximity of the site;
•Surface treatments with colors and materials that will be in harmony with the
surrounding landscape;
•Cut stumps as low as possible and angled away from the viewer;and
•Reshaping and re-vegetating disturbed areas to blend with surrounding scenic
characteristics.
Condition 15 -Diversion Operation Plan
Within 60 days prior to an y ground-disturbing activity,the Licensee shall file with
the Commission a Diversion Operation Plan that is approved b y the Forest Service.At a
minimum the Plan shall address:
•Methods for removal and disposal of sediment;
•Procedures for flood conditions,methods of erosion prevention in the diversion
area and spillway channel;
•Trash and debris removal;and
•An implementation schedule and maintenance program.
Upon Commission approval,the licensee shall implement the plan.The Commission
may require changes to the plan to ensure adequate protection of the environmental,
scenic and cultural values of the project area.
Condition 16 -Erosion Control Plan
At least 90 days prior to starting any activities the Forest Service determines to be
of a land-clearing or land-disturbing nature on National Forest System land,the Licensee
shall file with the Director,Office of Hydropower Licensing for Commission approval,a
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plan approved by the Forest Service to control erosion,stream sedimentation,dust and
soil mass movement consistent with the standards and guidelines of the 1997 Tongass
Land and Resource Management Plan.Upon Commission approval,the Licensee shall
implement the plan.
The plan shall be based on actual-site geological,soil,surface water and
groundwater conditions,and shall include:(1)a description of the actual site conditions,
including any existing erosion or sedimentation problems from access during
construction,stream crossings,trails,or other facilities;(2)detailed descriptions,design
drawings,and specific topographic locations of all control measures;(3)measures to
divert runoff over disturbed land surfaces,including sediment ponds at the diversion site;
(5)a monitoring and maintenance schedule;(6)and any other measures the Forest
Service,and the Licensee mutually identif y as needing care to ensure resource protection.
The plan and erosion control measures shall comply with Best Management Practices
(Soil and Water Conservation Handbook FSH 2509.22).Erosion control measures should
be designed to retain the natural appearance of the area where practicable.The
Commission may require changes to the plan to ensure adequate protection of the
environmental,scenic,and cultural values of the project area.
The Licensee shall not commence activities the Forest Service determines to be
affected by the plan until after 60 days following the filing date,unless the Director,
Office of Hydropower,Licensing,prescribes a different commencement schedule.
Condition No.17 -Spoil Disposal
Within 60 days prior to an y ground-disturbing activity,the Licensee shall file with
the Commission a Spoil Disposal Plan that is approved by the Forest Service.The Plan
shall include measures for the storage and/or disposal of excess construction/tunnel spoils
and slide material.At a minimum,the plan must address the location of soil disposal
pile(s),contouring of any storage piles to conform to adjacent landforms and slopes,
stabilization and rehabilitation (including re-vegetation)of all spoil sites and borrow pits,
and prevention of water contamination by leachate and runoff.The plan also must include
an implementation schedule and maintenance program.
Condition 18 -Fire Prevention Plan
The Licensee is responsible for fire prevention measures and for fire suppression
costs,directly and indirectly resulting from or caused by any high-risk use and occupancy
within the project area.The Licensee is not liable when injury,loss or damage results
wholly or in part from a negligent act of United States or from an act of a third party not
involving the Licensee’s facilities or operations.
Within 60 days prior to an y ground-disturbing activity,the Licensee shall file with
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Commission a Fire Prevention Plan that is approved by the USDA Forest Service in
consultation with appropriate State and local fire agencies.At a minimum,the Licensee
shall:
•Analyze fire prevention needs to ensure that prevention equipment and personnel
are available;
•dentify fire hazard reduction measure (e.g.,eliminating ladder fuels,reducing fuel
loading);and
•Provide the USDA Forest Service a list of the location of available fire-prevention
equipment and the location and availability of fire-prevention personnel.
Condition No.19 -Noxious Weed Management Plan
Within 60 days prior to an y ground-disturbing activity,the Licensee shall file with
the Commission a Vegetation Management Plan that is approved by the USDA Forest
Service.At a minimum the Plan shall:
•Identify and prioritize (into high,moderate and low priority sites)all inadequately
vegetated areas to be re-vegetated or rehabilitated along with an implementation
schedule;
•List the species to be used along with planting locations,methods,and densities
(native species must be used);
•Identify methods for prevention and control of noxious weeds.Treatment of
existing infestations of highest priority weeds shall be initiated immediately upon
approval of the Noxious Weed Management Plan by the Commission;
•Develop a monitoring program to evaluate the effectiveness of noxious weed
control measures;and
•Develop procedures for identification of additional measures that the licensee shall
implement if monitoring reveals that noxious weed control is not successful or
does not meet intended objectives.
Condition No.20 -Guaranteed Priority Flow Bypass Device and Gauging
In order to ensure that the instream flows required are released,the Licensee shall
construct,operate,and maintain a guaranteed priority streamflow device,approved by the
Forest Service,as part of the Achilles Creek diversion structure.Minimum flows required
by the instream flow condition shall be automatically released through this device,before
any flow can be diverted into the conduit.At least 60 days prior to beginning construction
of the diversion structure,the Licensee shall file for Commission approval functional
design drawings and an implementation schedule for the guaranteed priority streamflow
device.
Licensee shall release a continuous minimum flow of 1.5 cubic feet per second
(cfs)below the Achilles Creek diversion structure.
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The Licensee,after consulting with the State Department of Fish and Game,the
Forest Service and the USGS,shall develop plans to install and monitor a water
measurement control section with a continuous recording gage to demonstrate
compliance with the requirements of the instream flow condition and to confirm that Best
Management Plan Practices are being met.
The Licensee shall file with the Commission,at least 90 da ys prior to the
installation of the water measurement control section,plans approved by the Forest
Service for the water measurement control section and gauging.The Commission ma y
require changes to the plans.
The Licensee shall provide stage-discharge information to the Forest Service prior
to commencement of operation of the project.Within 60 days of request,the Licensee
shall provide the Forest Service with updated stage-discharge charts and/or with a report
of streamflow information collected at the water measurement control section and any
other applicable stream gage records.The water measurement control section and gage
shall be shown on the as-built drawings filed with the Commission.
Condition No.21 –Implementation and Modification of Forest Service Conditions
The USDA Forest Service reserves the authority to modif y USDA Forest Service
4(e)terms and conditions if upon completion of the USDA Forest Service administrative
appeals process at 36 Code of Federal Regulations (CFR)Part 251,Subpart C-Appeal of
Decisions Relating to Occupancy and Use of National Forest System Lands,the Chief,
USDA Forest Service,or Secretary of Agriculture directs that substantial changes to the
terms and conditions submitted herein be made.
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Document Content(s)
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