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HomeMy WebLinkAbout5.977 Original ContractTRANSMISSION AGREEMENT FOR THE MORSE CREEK HYDROELECTRIC PROJECT BETWEEN THE CITY OF PORT ANGELES AND PUBLIC UTILITY DISTRICT NO. 1 OF CLALLAM COUNTY THIS AGREEMENT is by and between the City of Port Angeles, hereinafter referred to as the "City ", and Public Utility District No. 1 of Clallam County, hereinafter referred to as "District ", municipal corporations organized and existing under the laws of the State of Washington; WHITNESSETH: WHEREAS, the City owns, maintains, and operates the Morse Creek Hydroelectric Project, hereinafter referred to as the "Project "; and WHEREAS, the District is willing to provide firm electric transmission capacity on its distribution facilities for the transmission of power from the Project to the District's point of interconnection with the Bonneville Power Administration, hereinafter referred to as "Bonneville ", at Bonneville's Port Angeles Substation; and WHEREAS, the City is willing to provide firm water transmission capacity on its water transmission line for wheeling the District's water from the City's Morse Creek Diversion Site, hereinafter referred to as "Diversion Site" to the District's water treatment plant, hereinafter "Plant "; and WHEREAS, the City, District, and United States of America, Department of Energy, acting by and through Bonneville has entered into contracts concerning interconnection of the Project, hereinafter referred to as Exhibit "A "; and WHEREAS, the City was granted a Federal Energy Regulatory Commission license and a Washington State Clean Water Action 401 Certification in 1985 for operation of the Project, which were amended in 2009 and 2008 respectively to modify the minimum instream flow requirements and ramping rates; and WHEREAS, it is the intent of both parties to minimize costs that occur with performing the services associated with implementing this Agreement; and NOW, THEREFORE, the parties hereto mutually agree as follows: 1. Purpose. The District will transmit electrical energy for the City and the City will wheel water for the District as provided herein. The parties have determined that the exchange of services hereunder have equivalent value at the present time. 1 5. ill 2. Term. This Agreement shall be effective commencing at 2400 hours on the date of execution and shall continue through August 16, 2036. Upon termination of either the City's Hydroelectric Project or the District's Plant, the owner of the terminated facility may terminate this Agreement if twelve (12) months' written notice has been given to the other party. any time. This Agreement may be terminated upon mutual agreement of both Parties at In addition, fifteen (15) years from the effective date of the Agreement or any time thereafter, either Party may give to the other written notice of termination. If written notice of termination is given, this Agreement shall terminate on (a) the termination date stated in the notice or (b) the date fifteen (15) years after written notice of termination is given, whichever is later, provided that any termination date that falls within the last five (5) years of a renewal period, the effective termination date shall be the last date of that renewal period. 3. Transmission of electric power and eneray. a) For each hour during the term hereof, the District shall make available to Bonneville at the District's point of interconnection as described in Exhibit "A ", the amounts of electric energy generated at the Project, less system losses. The District will not be required to provide such energy under the conditions described in Sections 7 and 8 herein. b) (1) The District agrees that it will schedule for the month of September planned routine operations and maintenance that would prevent it from making delivery at the District's point of interconnection and give forty -eight hours notice thereof to the City. (2) The City agrees that the District may, for emergencies, choose not to make delivery at the District's point of interconnection outside the month of September. If the District exercises this option, it shall give the City notice thereof with the reason therefore. Upon such notice, the City will attempt to make other wheeling arrangements satisfactory to the City and the District. If such arrangements cannot be made, the City's obligation to wheel water is suspended 24 hours after interruption until such time as delivery at the District's point of interconnection is resumed. c) Wheeling charges or other fees related to the transmission of Project output, from the Project powerhouse to Bonneville's Port Angeles Substation, will not be charged to the City by the District while this Agreement is in effect. d) The City will maintain an underground power line from the powerhouse to the junction box (District Plant No. 294582) on Henery Boyd Road where it will interconnect with the distribution facilities of the District. The District shall maintain its existing three phase electric power line from the point of interconnection to that point on the Mount Pleasant Road where the existing three phase facilities terminate. The City will 2 own and maintain the underground cable to the generating plant to the point of interconnection. Ownership, maintenance, and operation of the overhead line are the responsibility of the District. 4. Meter Reading. a) The City shall install a recording meter at the Project powerhouse. Meters installed at the Project shall have telecommunication to Bonneville's remote metering system. Pursuant to Exhibit "A ", Bonneville will adjust the computations for the District's and the City's Port Angeles delivery points by the corresponding energy and hourly capacity output, as detailed in that agreement. b) The City will provide space and metering pulses in the Powerhouse for the District to meter the Project output. c) The District has installed a recording water meter at the Morse Creek Water Treatment Plant that records instantaneous and total flows to the treatment facility. The City may inspect the District's Plant and its records, upon request, to verify that the 1 cubic feet per second (CFS) limitation is not exceeded. 5. Transmission of Water. a) The District will maintain a point of withdrawal for its water right from Morse Creek to include the Diversion Site. The City shall wheel up to 1 cubic feet per second (CFS) of water at no charge from the Diversion Site to the District's Plant; provided that in no event shall the District withdraw more than 11/2 CFS. No modifications or changes to the District's pipes, valves or pump which connect to the City's main will be made that would increase the District's capability to withdraw water without prior written City approval. b) The City shall maintain a 24" butterfly valve and tap with an 8" gate valve on its water transmission line near the District's water treatment plant. The City will own and maintain the butterfly valve, tap and 8" gate valve. The District will own and maintain the water pipe connected to the gate valve. c) The City shall continue to wheel 11/2 CFS of water at no charge in the event the Project powerhouse is not in operation, except as provided in the Project's Federal Energy Regulatory Commission (FERC) license, Washington State Clean Water Act 401 certification, or Sections 7 and 8 herein, or as modified by Section 2. 6. Provision of Electric Service. a) Electric service at the City's Diversion Site will be metered and billed in accordance with the District's rate schedule for like service to other customers. b) Electric service at the City's powerhouse will be metered and billed in accordance with the District's rate schedule for like service to other customers. 3 , 7. Maintenance of Facilities and Liability. a) Each party, at its expense, will maintain its property, equipment, and facilities in accordance with prudent utility practice and will keep such facilities in continuing good operating condition, except as provided elsewhere in this Agreement; provided, however, that neither party shall be liable to the other hereunder for any interruption, suspension, curtailment, or fluctuation in the power and energy or water to be transferred hereunder (1) caused by the necessity of making repairs or changes in facilities used for such transfer, or (2) by reason of any cause beyond either party's reasonable control, including but not limited to the following: FERC license and 401 certification (as amended, extended or replaced), fire, ice, flood, winds, earthquakes, volcanoes, acts of the elements, court orders, insurrections or riots, generation failures, breakdown of or damage to facilities of the parties or of third parties, acts of God or War or public enemy, strikes or other labor disputes, civil, military or governmental authority. b) In the event of blockage at the Diversion Site such that water cannot be wheeled without continuing expenditures of labor, material and /or equipment cost, the City may, after twenty -four (24) continuous hours of such expenditures exercise the option to shut down the Diversion Site unless the District provides the necessary labor, equipment, material, or financial assistance to keep the Diversion Site clear and operational. This option may only be exercised if such continuing expenditures make the project generation not cost - effective to the City as determined by the City. c) Attached to this Agreement, and incorporation herein as Exhibit "B" are operating procedures (two pages) and drawings (two pages) that show the facilities owned and operated by the City and the facilities owned and operated by the District as related to this Agreement. The parties shall operate their respective facilities in accordance with Exhibit "B ". d) Attached to this Agreement, and incorporation herein as Exhibit "C" are the the Project's FERC license and Washington State Clean Water Act 401 certification (as amended, extended or replaced) that are related to this Agreement. The parties shall operate their respective facilities in accordance with Exhibit "C ". e) The City will design and operate the Project's electrical generation output and deliver it to the District in such a manner that no electrical degradation or disturbance to the District's system shall occur and further, the energy delivered will conform with paragraph 4(a) of Exhibit "A ". f) The parties are not joint tenants, partners, joint operators, or joint venturers. Neither party is empowered to act as agent for the other. 8. Emergency Suspension. It is understood and agreed that, in the event either party determines that an emergency exists requiring full capacity of its own water or electric facilities, that party may send written notice of such emergency to the other party. Upon sending such a notice, this Agreement shall be suspended until such time as the emergency has ended. 4 The emergency must have the element of an unexpected and unplanned -for event; provided that the temporary loss or failure of the Elwha water supply system shall constitute an unexpected, unforeseeable circumstance under this section. Normal growth in demand, usage, or customers shall not constitute an emergency. Invocation of this paragraph shall not constitute a breach of the contract and all remaining agreements under the contract shall continue in full force and effect after the period of suspension. 9. Liability for Negligent Conduct. Each party to this Agreement hereby agrees to indemnify and to hold the other harmless from and against any loss, damage, or injury suffered by the other party that is caused by the sole negligence of the negligent party. Liability for injuries to third persons and their property shall be apportioned on the basis of the relative fault. The right of contribution is preserved under these circumstances and may be enforced by separate action. The Agreement may be enforced by action at law and for specific performance if the court deems such relief to be appropriate. 10. Integration and Amendments. This Agreement, Exhibit "A" referred to in Sections 3(a), 4(a) and 7(d), Exhibit "B ", referred to in Section 7(c), and Exhibit "C" referred to in Sections 5(c), 7(a) and 7(d) constitute the entire agreement between the parties. No oral agreement or prior written agreement between the parties shall be of any effect whatsoever; provided, however, that any amendments agreed upon in writing by the parties and consistent with this Agreement shall be binding upon the parties. All amendments to this Agreement and to exhibits hereto shall be in writing and signed by an authorized representative of each party. 11. Non - waiver. None of the provisions of this Agreement shall be considered waived by either party, except when such waiver is given in writing. The failure of either party to insist in any one or more instances upon strict performance of any of the provisions of this Agreement or to take advantage of any of its rights hereunder shall not be construed as a waiver of any such provisions or the relinquishment of any such rights for the future, but the same shall continue and remain in full force and effect. 12. Successors and Assigns. a) This Agreement shall be binding upon and provide benefits to the respective successors and assigns of the parties. b) No assignment of this Agreement or any part thereof by either party shall be valid, unless approved in writing in advance by the other party and until the obligations so assigned have been assumed by the assignee. Such approvals of assignment shall not be unreasonably withheld. 13. Effect of Section Headings. 5 Section headings appearing in this Agreement are inserted for convenience only and shall not be construed as interpretation of text. 14. Governing Law. This Agreement shall be interpreted, governed, and construed under the laws of the State of Washington, as if executed and to be performed wholly within the State of Washington. 15. Validity of Contract. In the event any section, sentence, clause, phrase, or exhibit of this Agreement shall be adjudicated by a court of last resort and of competent jurisdiction to be invalid or illegal, the remainder of this Agreement shall be unaffected by such adjudication, and all other provisions of this Agreement shall remain in full force and effect as though the section, sentence, clause, phrase, or Exhibit so adjudicated to be invalid had not been included herein. 16. Notices. Any notice, or other communication required under this Agreement shall be effective from the date received by the party to whom it is given. Except as otherwise specifically provided herein, any notice from one party to the other shall be given to the following designees, or to such others as may be hereinafter designated by either party: The City of Port Angeles Public Works and Utilities Department P.O. Box 1150, 321 East Fifth Street Port Angeles, WA 98362 Attn: Public Works and Utilities Director P.U.D. No. 1 of Clallam County P.O. Box 1117, 2419 Highway 101 E. Port Angeles, WA 98362 Attn: Manager 17. Resolution of Disputes. Both Parties agree that they shall engage in negotiation and mediation to attempt to resolve any dispute that arises out of the interpretation, enforcement, performance, or any other aspect of this Agreement. If those efforts are unsuccessful in resolving any such dispute, the parties may engage in any other means available to resolve the dispute. In addition, either party may demand the dispute be arbitrated. In that event, the dispute shall be resolved by submitting the same to binding arbitration. Within ten (10) days of the demand for arbitration, the City shall select one (1) nominating person, and the District shall select one (1) nominating person. The two (2) nominating persons shall then meet and promptly select the arbitrator who shall be an experienced and impartial arbitrator. If the nominating persons, within thirty (30) days of the first notice, do not select a person who agrees to serve as arbitrator, the arbitrator shall be selected by a Superior Court Judge of Clallam County. The arbitration shall be conducted according to the rules and regulations of the American Arbitration Association. 6 IN WITNESS WHEREOF, the parties hereto have executed this Agreement. ATTEST: P.U.D. No. 1 of CI IIam County BY: BY: TITLE: TITLE: DATE: ATTEST: 7 BY: TITLE: DATE: City of Port Angeles BY: 9,4(41. BY: TITLE: 6� L'/ TITLE: `1 DATE: _ At) • • 4 AUTHENTICATED COPY FX • .4 Contract No. DE- MS79- 91BP93194 August 28, 1991 TRANSMISSION AGREEMENT executed by the UNITED STATES OF AMERICA DEPARTMENT OF ENERGY acting by and through the BONNEVILLE POWER ADMINISTRATION and CITY OF PORT ANGELES and CLALLAM COUNTY PUD providing services for MORSE CREEK HYDRO PROJECT Index to Sections Section Page 1. Term of Agreement 3 2. Definitions and Explanation of Terms 4 3. Exhibits 5 4. Revision of Exhibits 5 Section Page 5. Transmission of Electric Power 7 6. Payment Provisions 8 7. Termination of Agreement and Charges 9 8. Reactive Power 10 9. Interconnection and Metering 10 10. General Environmental Provisions 11 11. Several Obligations 11 12. Execution in Counterpart 12 Exhibit A (General Transmission Rate Schedules and General Transmission Rate Schedule Provisions) 5 Exhibit B (General Wheeling Provisions CGWP Form -4R)) 5 Exhibit C (Transmission Parameters) 5 Exhibit D (Loss Factors) 5 Exhibit E (Resource Services) 5 This TRANSMISSION AGREEMENT, executed October 15 , 1991, by the UNITED STATES OF AMERICA (Government), Department of Energy, acting by and through the BONNEVILLE POWER ADMINISTRATION (Bonneville), the CITY OF PORT ANGELES (City), a municipality of the State of Washington, and CLALLAM COUNTY PUD (Utility), a Public Utility District of the State of Washington, 2 k. • WITNESSETH: WHEREAS the Utility and the City have entered into an agreement whereby the Utility will provide firm capacity in its transmission or distribution system facilities for the transmission of electric power generated at the Morse Creek Hydroelectric Project, and for interconnection of the Project to the facilities of the Utility (Interconnection Agreement); and WHEREAS the Utility and Bonneville have agreed to provide firm capacity on their transmission or distribution facilities for the transmission of power from the Project to the City; and WHEREAS the City owns the Project and the transmission service occurs over the Utility's and Bonneville's facilities for delivery to the City; and WHEREAS the load which is served hereunder at the Point of Interconnection and the Point of Delivery is in the control area of Bonneville; and WHEREAS Bonneville is authorized pursuant to law to dispose of Electric Power generated at various Federal hydroelectric projects in the Pacific Northwest, or acquired from other resources, to construct and operate transmission facilities, to provide transmission and other services, and to enter into agreements to carry out such authority; NOW, THEREFORE, the parties hereto mutually agree as follows: 1. Term of Agreement. This agreement shall be effective commencing at 2400 hours on the date Bonneville has signed all original counterparts of this agreement (Effective Date) and shall continue until the earlier of: (a) 2400 hours on the date of termination pursuant to section 7 below; or (b) 2400 hours on September 30, 2011; 3 All obligations incurred hereunder shall continue until satisfied. Upon expiration of this agreement pursuant to subsection (b) above, Bonneville shall offer to extend transmission services provided hereunder, of the same quality as, and on terms and conditions consistent with, those being offered at that time to other customers similarly situated for the lesser of 20 years or the remaining life of the Project. 2. Definition and Explanation of Terms. (a) "Agency" means the Federal Energy Regulatory Commission or its successor agency which has the authority to approve Bonneville's transmission rates. (b) "Electric Power" or "power" means electric peaking capacity, expressed in kilowatts, or electric energy, expressed in kilowatthours, or both. (c) "Net Project Output" means the Electric Power generated at the Project less station service, and less transmission and transformation losses from the Project to the Point of Integration. (d) "Point of Delivery" means the point of delivery, described in Exhibit C, where Electric Power is delivered to the City by Bonneville. (e) "Point of Integration" means the point described in Exhibit C where the Net Project Output will be made available by the Utility to Bonneville. (f) "Point of Interconnection" means the point where the Net Project Output will be made available by the City to the Utility. (g) "Project" means the Morse Creek Hydroelectric Project, described in Exhibit C, consisting of the site and generating units, and related transformation and transmission facilities. (h) "Transmission Demand" means the amount specified in Exhibit C, expressed in kilowatts, which is the maximum hourly amount of Electric Power 4 to be made available to Bonneville for the account of the City under this agreement at the Point of Integration. (i) "Use -of- Facilities Charge (UFT)" means the charges, if any, specified in the Transmission Parameters Exhibit, applicable between the Point of Integration and the Point of Delivery for the purpose of recovering the cost of identifiable facilities provided by Bonneville for the City's use. Such charges and their application shall be consistent with the UFT Transmission Rate Schedule contained in the Transmission Rate Schedules and General Transmission Rate Schedule Provisions Exhibit, and shall also be consistent with Bonneville's Customer Service Policy. 3. Exhibits. Unless otherwise expressly stated herein, the rights and obligations of the parties with respect to provisions hereunder shall be subject to and governed only by the written terms of this agreement, including Exhibits A through E (Exhibits) attached hereto and by this reference made a part of this agreement. The notice provisions of section 38 of the General Wheeling Provisions CGWP Form -4R1, Exhibit B, require a minimum notice prior to a Rate Adjustment Date. If the rates are disapproved or conditions are placed on them by the Agency or by any judicial interpretation of legislation by a court with jurisdiction over Bonneville, Bonneville shall not be required to give the minimum notice prior to resubmitting the rates to the Agency or implementing the Agency approved rates. The headings used in this agreement are for convenient reference only and shall not affect the interpretation of this agreement. The City shall be the "Transferee" and Bonneville shall be the "Transferor" referred to in Exhibit B. 4. Revision of Exhibits. (a) The UFT rate schedule attached hereto in Exhibit A has been confirmed and approved by the Agency. The Use -of- Facility charge specified in Exhibit C 5 shall be recalculated following any rate filing according to the provisions of such amended, modified or successor rate schedules and associated provisions, and Bonneville shall prepare a new Exhibit C incorporating the revised UFT charge. The initial Integration of Resources (IR -89) rate schedule attached hereto in Exhibit A has been confirmed and approved by the Agency. If any final rate schedule which is approved by the Agency is an amendment or modification of the initial rate schedule, the applicable amended or modified rate schedule and associated general transmission rate schedule provisions shall be attached hereto and made a part of this agreement effective as of the date specified in the Agency's approval. Any rate •schedule in Exhibit A shall be replaced by successor rate schedules in accordance with the provisions of section 70) of the Pacific Northwest Power Act and Agency rules. (b). If Bonneville determines that the charges specified in Exhibit C or any subsequent charges specified in this agreement must be changed pursuant to sections 19 or 38 of the General Wheeling Provisions (GWP Form -4R), Exhibit B, it shall prepare a new Exhibit C incorporating such changes. Such new Exhibit C shall be substituted for the Exhibit C then in effect and shall become effective as of the date specified therein. (c) The loss factor for wheeling small resources, as specified in Exhibit D, may be revised from time to time upon notification by the City and the Utility of system changes or Bonneville's determination that conditions at the Project or on the Utility's system have changed sufficiently to warrant recalculating the loss factor. Bonneville shall calculate the loss factor and submit to the City and the Utility by letter pursuant to Exhibit D. The loss factor shall be reviewed yearly and revised if appropriate. 6 (d) Exhibit E shall be revised, not more frequently than once during any consecutive 12 -month period to insure Bonneville is adequately compensated. Such new Exhibit E shall be substituted for the Exhibit E then in effect and shall become effective as of the date specified therein. 5. Transmission of Electric Power. (a) For each hour during the term hereof, the City shall make available or arrange to have made available to the Utility at the Point of Interconnection between the City and the Utility the Net Project Output. (b) For each hour during the term hereof, the Utility shall make available to Bonneville for the account of the City at the Point of Integration, the Net Project Output. Such hourly amounts shall not exceed the Transmission Demand. (c) For each hour during the term hereof, Bonneville shall make available to the City at the Point of Delivery for account of the City, the amount of Electric Power made available to Bonneville pursuant to subsection 5(b) above. Bonneville shall not be obligated to provide transmission services in excess of the Transmission Demand. (d) Bonneville shall add to the metered quantities monthly at the Point of Integration and subtract from the metered quantities monthly at the Point of Delivery the amount of the Net Project Output. (e) Nothing contained in the power sales contract between Bonneville and the City (Contract No. DE- MS79- 81BP90450 as amended, extended or replaced) shall limit in any way the obligation of Bonneville or the City to provide the firm transmission services hereunder. (f) Nothing contained in the power sales contract between Bonneville and the Utility (Contract No. DE- MS79- 81BP90488 as amended, extended or replaced) 7 shall limit in any way the obligations of Bonneville or the Utility to provide the firm transmission services hereunder. (g) Bonneville may charge for resource services provided by Bonneville for the Project pursuant to Exhibit E, if Exhibit E is developed. The resource services may include, but shall not be limited to operating reserves and making available amounts of Electric Power to the City, pursuant to subsection 5(c) above, which vary from the Net Project Output. 6. Payment Provisions. (a) The City shall pay Bonneville each month, in accordance with the General Transmission Rate Schedule Provisions of Exhibit A, for the services provided by Bonneville hereunder, as follows: (1) the amount determined by multiplying the UFT charge specified in Exhibit C by the billing demand as defined in the Use of Facilities Transmission rate schedule included in Exhibit A; and (2) the amount calculated pursuant to Exhibit E for resource services. Bonneville shall make appropriate billing adjustments during periods, if any, when operation of the Project is limited by governmental agencies having jurisdiction over the Project and related facilities. (b) Ratchet Demand shall be as determined by Bonneville pursuant to Exhibit A. A Ratchet Demand does not constitute an increase in the Transmission Demand approved by Bonneville. Continued service at such increased level by Bonneville shall depend on availability of facilities as determined by Bonneville. (c) The City shall pay the Utility each month for the transmission services provided by the Utility hereunder as provided in the Interconnection Agreement. Such obligation is an obligation of the City. 8 (d) To the extent that the billing determinants contained in Exhibit C include a demand factor, which may be represented by a "transmission demand," "contract demand," "measured demand" or other type of demand quantity, the billing demand and rachet provisions, if any, of the General Transmission Rate Schedule Provisions contained in Exhibit A shall apply to the calculation of payments. (e) Billing for the Transmission Demand shall begin on the effective date of the Transmission Demand, as specified in Exhibit C. 7. Termination of Agreement and Charges. This agreement may be terminated by the City (1) upon destruction or abandonment of the Project; (2) upon discontinuation of Project output under a final order of a public official having authority to issue such order; (3) upon termination of the Interconnection Agreement between the City and the Utility; or (4) upon revocation by the Agency of a license to construct and operate the Project from the Agency. This agreement may not be terminated by reason of a partial reduction in generating capability. Unless otherwise mutually agreed, the City shall provide Bonneville and the other parties hereto, 60 days prior written notice of a termination date pursuant to this section 7. If this agreement is terminated earlier than the term described in section 1(b) above, or if there is a partial reduction in generating capability, the City shall pay Bonneville as follows: (a) monthly at a rate that shall compensate Bonneville for the annual cost of the facilities so constructed, to the extent such facilities become unusable in whole or in part as the result of such destruction or abandonment of the Project or upon such partial permanent reduction or discontinuation of Project output; or 9 (b) as mutually agreed for the unamortized unsalvageable investment plus the cost of removal of any facilities Bonneville has constructed at Government expense for the purpose of providing transmission service for the Project hereunder. 8. Reactive Power. It is the intent of the parties hereto that the voltage level at the Points of Interconnection, Points of Integration and the Points of Delivery be controlled in accordance with prudent utility operating practice. The parties hereto shall plan jointly and operate their systems so as not to place an undue burden on the other party to supply or absorb reactive power accompanying or resulting from deliveries hereunder. 9. Interconnection and Metering. (a) Before Electric Power shall be made available to the City, all equipment and facilities needed for safe and reliable interconnection to Bonneville's facilities shall be installed and in operation as approved by Bonneville. The cost of interconnection to Bonneville's facilities shall be at the City's expense unless all parties agree otherwise. If at any time during the term of this agreement, Project generation creates disturbances on or otherwise degrades the integrity of the Federal Columbia River Transmission System (FCRTS), Bonneville may interrupt transmission services. The City, at City's expense, shall take the necessary action to correct such problems prior to such services being resumed. (b) Bonneville shall require use of a Revenue Metering System (RMS) unit or like unit meeting Bonneville's specifications to meter output from the Project. Bonneville shall perform all operation and maintenance (O&M) services on the RMS unit. Likewise, the City shall use Jem meters or equivalent to determine output from the Project; and the City shall perform 10 all 0 &M service on its meter. The cost associated with the purchase and maintenance of the RMS unit including repair or replacement shall be at the City's expense. The original purchase of the RMS unit is provided under Agreement No. DE— AI79- 87BP72149. Installation of telecommunications equipment for both Bonneville and City's metering equipment and all service charges shall be at the City's expense. Ownership of the RMS equipment shall remain with the Government. 10. General Environmental Provisions. (a) The City shall comply with all terms and conditions -of any permit, license, law, regulation, or other approval lawfully required for or applicable to the construction, operation, maintenance, repair, decommissioning, or site restoration of the Project. This includes, but is not limited to, all mitigation plans and environmental agreements which were developed during the National Environmental Policy Act review, or other processes. (b) If an order of a Federal, State, or Local agency or Indian tribe with jurisdiction or a final decision of a court of competent jurisdiction finds that the City is in noncompliance with subsection 10(a) above, then Bonneville may restrict transmission service otherwise to be provided pursuant to this contract until the City provides Bonneville with evidence of compliance, or progress towards compliance satisfactory to Bonneville. 11. Several Obligations. Except where specifically stated in this agreement to be otherwise, the duties, obligations, and liabilities of the parties are intended to be several and not joint or collective. Nothing contained in this agreement creates an association, trust, partnership, or 11 joint venture or to impose a trust or partnership duty, obligation, or liability on or with regard to any party. Each party shall be individually and severally liable for its own obligation under this agreement. 12. Execution in Counterpart. This agreement may be executed in any number of counterparts in which case all such counterparts shall be deemed to constitute a single document with the same force and effect as if all parties hereto having signed a counterpart had signed all other counterparts. The agreement shall become effective in accordance with section 1. IN WITNESS WHEREOF, the parties hereto have executed this agreement in several counterparts. By Title .bIREc7t1Z Date 10/2191 /s/ ROBERT J. TITUS CLALLAM COUNTY PUD By Title Date (5040j) a2d, AUTHENTICATED COPY 12 UNITED STATES OF AMERICA Department of Energy Bonneville Power Administration By CITY OF PORT ANGELES ATTEST: By Title Date /r)--;2 - q /s/ BECKY J. UPTON Director City Clerk October 2, 1991 October 2, 1991 By Title Date ssistant Administrator for Power Sales CLALLAM COUNTY PUD /s/ WILLIAM McCRORIE (5040j) AUTHENTICATED COPY joint venture or to impose a trust or partnership duty, obligation, or liability on or with regard to any party. Each party shall be individually and severally liable for its own obligation under this agreement. 12. Execution in Counterpart. This agreement may be executed in any number of counterparts in which case all such counterparts shall be deemed to constitute a single document with the same force and effect as if all parties hereto having signed a counterpart had signed all other counterparts. The agreement shall become effective in accordance with section 1. IN WITNESS WHEREOF, the parties hereto have executed this agreement in several counterparts. /s/ WALTER E. POLLOCK By CITY OF PORT ANGELES ATTEST: By By Title Title Date Date 12 UNITED STATES OF AMERICA Department of Energy Bonneville Power Administration /s/ LARRY HAAS 4:;l2L/ Assistant Administrator for Power Sales By , .4� / �'J By L r \ President, Secretaryl, Title Board of Commissioners Title Board of 'Commissioners Date October 15, 1991 Date October 15, 1991 1991 Transmission Rate Schedules _ b=_A and Genera Transmission Rate Sc lec u e Provisions Bonneville POWER ADMINISTRATION Ociobei 1991 United States Department of Energy Bonneville Power Administration 905 NE I l th Avenue Portland, Oregon 97232 Bonneville Power Administration's 1991 Transmission Rate Schedules and General Transmis- sion Rate Schedule Provisions were approved on an interim basis by the Federal Energy Regulatory commission, United States Department of Energy, in a commission order issued September 13, 1991 (Docket Nos. EF91 -201 1 -000, et al.). These rate schedules and provisions supersede the Administration's Transmission Rate Schedules and General Transmission Rate Schedule Provisons effective October 1, 1989. TRANSMISSION RATE SCHEDULES AND GENERAL TRANSMISSION RATE SCHEDULE PROVISIONS TABLE OF CONTENTS Current Transmission Rate Schedules Page FPT -91.1 Formula Power Transmission 1 FPT -91.3 Formula Power Transmission 2 IR -91 Integration of Resources 3 1S -91 Southern Intertie Transmission 4 IN -91 Northern Intertie Transmission 5 1E -91 Eastern Intertie Transmission 6 ET -91 Energy Transmission 7 MT -91 Market Transmission 8 UFT -83 Use -of- Facilities Transmission 9 TGT -1 Townsend- Garrison Transmission 10 General Transmission Rate Schedule Provisions Section 1 Adoption of Revised Transmission Rate Schedules and General Transmission Rate Schedule Provisions 12 Section II Billing Factor Definitions and Billing Adjustments 12 Section III Other Definitions 13 Section IV Billing Information .14 SECTION I. AVAILABILITY This schedule supersedes schedule FPT -89 1 for all firm transmission agreements which provide that rates may be adjusted not more frequently than once a year. It is available for firm transmission of electric power and energy using the Main Grid and /or Secondary System of the FCRTS. This schedule is for full-year and partial -year service and for either continuous or intermittent service when firm availability of service is required. For facilities at voltages lower than the Secondary System, a different rate schedule may be speci- fied. Service under this schedule is subject to BPA's General Transmission Rate Schedule Piovisions (GTRSPs). SECTION II. RATE A. Full-Year Service The monthly charge per kilowatt of billing demand shall be one - twelfth of the sum of the Main Grid Charge and the Secondary System Charge, as applicable and as specified in the Agreement. 1. Main Grid Charge The Main Grid Charge shall he the sum of one or more of the following component factors as specified in the Agreement: a. Main Grid Distance Factor: The amount com- puted by multiplying the Main Grid Distance by $0.0281 per mile; b. Main Grid Interconnection Terminal Factor: $0 27, c. Main Grid Terminal Factor: $0.30; d. Main Grid Miscellaneous Facilities Factor: $1.3 I ; 2. Secondary System Charge The Secondary System Charge shall he the sum of one or more of the following component factors as speci- fied in the Agreement: a. Secondary System Distance Factor: The amount determined by multiplying the Secondary System Distance by $0 1961 per mile; b. Secondary System Transformation Factor: $2.53; c. Secondary System Intermediate Terminal Factor: $0.84; d. Secondary System Interconnection Terminal Fac- tor: $0.44; Schedule FPT -91.1 Formula Power Transmission I B. Partial -Year Service The monthly charge per kilowatt of billing demand shall he as specified in Section II.A for all months of the year except for agreements with terms 5 years or less and which specify service tor fewer than 12 months per year. The monthly charge shall be: 1. During months for which service is specified, the monthly charge defined in Section II.A, and 2. During other months, the monthly charge defined in Section 11. A multiplied by 0.2. SECTION 111. BILLING FACTORS Unless otherwise stated in the Agreement, the billing de- mand shall be the largest of: A. The Transmission Demand; 8. The highest hourly Scheduled Demand for the month; or C. The Ratchet Demand. SECTION 1. AVAILABILITY This schedule supersedes schedule FPT -89.3 for all firm transmission agreements which provide that rates may be adjusted not more frequently than once every 3 years. It is available for firm transmission of electric power and energy using the Main Grid and /or Secondary System of the FCRTS. This schedule is for full -year and partial -year service and for either continuous or intermittent service when firm avail- ability of service is required. For facilities at voltages lower than the Secondary System, a different rate schedule may be specified. Service under this schedule is subject to BPA's GTRSPs. SECTION II. RATE A. Full -Year Service The monthly charge per kilowatt of billing demand shall be one- twelfth of the sum of the Main Gr id Charge and the Secondary System Charge, as applicable and as specified in the Agreement 1. Main Grid Charge The Main Grid Charge shall be the sum of one or more of thefollowing component factors as specified in the Agreement: a. Main Grid Distance Factor: The amount corn - puted by multiplying the Main Grid Distance by $0.0281 per mile; b. Main Grid Interconnection Terminal Factor: $0.27; c. Main Grid Terminal Factor: $0 30; d. Main Grid Miscellaneous Facilities Factor: $1.31; 2. Secondary System Charge The Secondary System Charge shall be the sum of one or more of the following component factors as speci- fied in the Agreement: a Secondary System Distance Factor: The amount determined by multiplying the Secondary System Distance by $0.1961 per mile; b. Secondary System Transformation Factor $ 2.53; c. Secondary System Intermediate Terminal Factor: $0.84; d. Secondary System Interconnection Terminal Factor: $0.44; Schedule FPT -91.3 Formula Power Transmission 2 B. Partial -Year Service The monthly charge per kilowatt of billing demand shall be as specified in Section II.A for all months of the year except for agreements with terms 5 years or Tess and which specify service for fewer than 12 months per year. The charge shall he: 1. During months for which service is specified, the monthly charge defined in Section II.A, and 2. During other months, the monthly charge defined in Section II.A multiplied by 0.2. SECTION I11. BILLING FACTORS Unless otherwise stated in the Agreement, the billing demand shall be the largest of: A. The Transmission Demand; B. The highest hourly Scheduled Demand for the month; of C. The Ratchet Demand SECTION I. AVAILABILITY This schedule supersedes IR -89 and is available for firm transmission service for electric power and energy using the Main Grid and/or Secondary System of the FCRTS. The definitions of Main Grid and Secondary Systems are the same as for the FPT -91.I and FPT -91.3 rate schedules and are contained in the GTRSPs. For facilities at voltages lower than the Secondary System, a different rate schedule may be specified. Service under this schedule is subject to BPA's GTRSPs. SECTION II. RATE The monthly charge shall be the sum of A and B where: A. The Demand Charge shall be: 1. $0.312 per kilowatt of billing demand; or 2. For Points of Integration (P01) specified in the Agree- ment as being short distance POI's, for which Main Grid and Secondary System facilities are used for a distance of less than 75 circuit miles, the following formula applies: [0.2 + (0.8/75 x transmission distance)] ($0.312 per kilowatt of billing demand) Where: the billing demand for a short distance P01 is the demand level specified in the Agreement for such POI, and the transmission distance is the circuit miles between the POI for a generating resource of the customer and a designated Point of Delivery serving load of the customer. Short distance POI's are deter- mined by BPA after considering factors in addition to transmission distance. B. The Energy Charge shall be: .92 mills/kWh of killing energy. Schedule IR -91 Integration of Resources SECTION 111. BILLING FACTORS To the extent that the Agreement provides for the customer to he billed for transmission in excess of the Transmission Demand or Total Transmission Demand, as defined in the Agreement, at the nontirm transmission rate (currently ET -91), such transmission service shall not contribute to either the Billing Demand or the Billing Energy for the IR rate piovidecl that the customer requests such treatment and BPA approves in accordance with the prescribed provisions in the Agreement. A. Billing Demand The billing demand shall he the largest of: 1. The Transmission Demand, except under General Transmission Agreements where a Total Trans- mission Demand is defined; 2. The highest hourly Scheduled Demand for the month; or 3. The Ratchet Demand. B. Billing Energy The billing energy shall be the monthly sum of sched- uled kilowatthours. SECTION 1 AVAILABILITY This schedule supersedes 15 -89 and is available for all transmission on the Southern Interne. Service under this schedule is subject to BPA's GTRSPs. SECTION II. RATE A. Nonfirm Rate The charge for nonfirm transmission of non -BPA power shall be 2.1 mills/kWh of billing energy. This charge applies for both north -to -south and south -to -north trans- actions B. Firm Power Transmission Rate The charge for firm transmission service granted access by BPA shall be $0.450 per kW per month of billing demand and 1.02 mills /kWh of billing energy. Film transmission will only be made available to customers under this rate schedule who have executed a contract with BPA specifying use of the Firm Power Transmission rate for either north -to -south or south -to -north trans- actions. SECTION III. BILLING FACTORS A. For services under Section 11.A, the billing energy shall be the monthly sum of the scheduled kilowatthours, plus the monthly sum of kilowatthours allocated but not scheduled. The amount of allocated but not scheduled energy that is subject to billing may be reduced pro rata by BPA due to forced Intertie outages and other uncon- trollable forces that may reduce Intertie capacity The amount of allocated but not scheduled energy that is subject to billing also may be reduced upon mutual agreement between BPA and the customer. B. For services under Section II.B, the billing demand shall be the Transmission Demand as defined in the Agree- ment. The billing energy shall be the monthly sum of scheduled kilowatthours, unless otherwise specified in the Agreement. Schedule IS -91 Southern Intertie Transmission SECTION I. AVAILABILITY This schedule supersedes IN -89 and is available for all transmission on the Northern Intertie. Service under this schedule is subject to BPA's General Transmission Rate Schedule Provisions. SECTION II. RATE The charge for transmission of non -BPA power on the Northern Intertie shall be 0.96 mills/kWh. SECTION III. BILLING FACTORS Billing Energy The billing energy shall he the monthly sum of the scheduled ki lowatthours. Schedule IN -91 Northern Intertie Transmission SECTION 1. AVAILABILITY This schedule supersedes IE -89 and is available for all nonfirm transmission on the Eastern Intertie. Service under this schedule is subject to BPA's General Transmission Rate Schedule Piovisions. SECTION 11. RATE The charge for transmission of nonfirm energy on the Eastern Intertie shall be 2.02 mills/kWh SECTION III. BILLING FACTORS Billing Energy The billing energy shall be the monthly sum of the scheduled kilowatthours. Schedule IE -91 Eastern Intertie Transmission 6 SECTION I. AVAILABILITY This schedule supersedes ET -89, unless otherwise specified in the Agreement, with respect to delivery using FCRTS facilities other than the Southern Intertie, Easter n Intertie, or the Northern Intertie, and is available for firm (of not more than 1 year duration) or nonfirm transmission between points within the Pacific Northwest. BPA may interrupt nonfirm service which is provided under this rate schedule. Service under this schedule is subject to BPA's GTRSPs. SECTION II. RATE The charge for transmission of non -BPA electric energy shall be 1.81 mills/kWh. SECTION III. BILLING FACTORS Billing Energy The billing energy shall be the monthly sum of scheduled kilowatthours. Schedule ET -91 Energy Transmission 7 SECTION 1. AVAILABILITY This schedule supersedes MT -89 and is available for Trans- mission Service for transactions using FCRTS facilities pursu- ant to the Western Systems Powei Pool (WSPP) Agreement. Service under this schedule is subject to BPA's General Transmission Rate Schedule Provisions. SECTION 11. RATE The charge shall be determined in advance by BPA. The charge shall be based on the duration of the proposed transaction and shall not exceed the following rates. A. Hourly Rate The maximum charge shall be 6.5 mills per kilowatthour where the total hourly revenues from a given transaction during a calendar day shall not exceed the product of the Daily rate and the maximum demand scheduled during such day. B. Daily Rate The maximum charge shall be $.105 per kilowattday where the total demand charge revenues in any con- secutive 7 -day period shall not exceed the product of the Weekly rate and the highest demand experienced on any day in the 7 -day period. C. Weekly Rate The maximum charge shall be $.52 per kilowattweek. D. Monthly Rate The maximum charge shall be $2.27 per kilowattmonth. SECTION I11. BILLING FACTORS The billing factors shall be specified in advance by BPA, as to representing the Transmission Service use or reservation. Schedule MT -91 Market Transmission 8 SECTION I. AVAILABILITY This schedule supersedes UFT -1 and UFT -2 unless otherwise provided in the Agreement, and is available for firm transmis- sion over specified FCRTS facilities. SECTION 1I. RATE The monthly charge per kilowatt of Transmission Demand specified in the Agreementshall be one - twelfth of the annual cost of capacity of the specified facilities divided by the sum of Transmission Demands (in kilowatts) using such facilities. Such annual cost shall be determined in accordance with Section III. SECTION III. DETERMINATION OF TRANSMISSION RATE A. From time to time, but not more often than once in each Contract Year, BPA shall determine the following data for the facilities which have been constructed or other- wise acquired by BPA and which are used to transmit electric power and energy: 1. The annual cost of the specified FCRTS facilities, as determined from the capital cost of such facil sties and annual cost ratios developed from the FCRPS finan- cial statement, including interest and amortization, operation and maintenance, administrative and gen- eral, and general plant costs. 2. The yearly noncoincident peak demands of all users of such facilities or other reasonable measurement of the facilities' peak use. B. The monthly charge per kilowatt of billing demand shall he one - twelfth of the sum of the annual cost of the FCRTS facilities used divided by the sum of Transmission De- mands. The annual cost per kilowatt of Transmission Demand for a facility constructed or otherwise acquired by BPA shall be determined in accordance with the following formula: A D Where: A = The annual cost of such facility as determined in accordance with A. I . above. D =The sum of the yearly noncoincident demands on the facility as determined in accordance with A.2. above Schedule UFT -83 Use -of- Facilities Transmission 9 The annual cost per kilowatt of facilities listed in the Agreement which are owned by another entity, and used by BPA for making deliveries to the transferee, shall be determined from the costs specified in the Agreement between BPA and such other entity. SECTION IV. DETERMINATION OF BILLING DEMAND Unless otherwise stated in the Agreement, the factor to be used in determining the kilowatts of billing demand shall be the largest of: A. The Transmission Demand in kilowatts specified in the Agreement, B. The highest hourly Measured or Scheduled Demand for the month, the Measured Demand being adjusted for power factor; or C. The Ratchet Demand. SECTION I. AVAILABILITY This schedule shall apply to all agreements which IN ovide for the firm transmission of electric power and energy over transmission facilities of BPA's section of the Montana [Eastern] Intertie. SECTION II. RATE The monthly charge shall be one - twelfth of the sum of the annual charges listed below, as applicable and as specified in the agreements for firm transmission. The Townsend - Garrison 500 -kV lines and associatedterminal, line compen- sation, and communication facilities are a separately identi- fied portion of the Federal Transmission System Annual revenues plus credits for government use should equal annual costs of the facilities, but in any given year there may be either a surplus or a deficit. Such surpluses or deficits for any year shall be accounted for in the computation of annual costs for succeeding years. Revenue requirements for firm transmission use will be decreased by any revenues received from nonfirm use and credits for all government use. The general methodology for determining the firm rate is to divide the revenue requirement by the total firm capacity requirements. Therefore, the higher the total capacity requirements, the lower will be the unit rate. If the government provides firm transmission service in its section of the Montana [Eastern] Intertie in exchange for firm transmission service in a customer's section of the Montana Intertie, the payment by the government for such transmis- sion services provided by such customer will be made in the form of a credit in the calculation of the Intertie Charge for such customer. During an estimated 1- to 3 -year period following the commercial operation of the third generating unit at the Colstnp Thermal Generating Plant at Colstrip, Montana, the capability of the Federal Transmission System west of Garrison Substation may be different from the long- term situation. It may not be possible to complete the extension of the 500 -kV portion of the Federal Transmission System to Garrison by such commercial operation date. In such event, the 500/230 kV transformer will be an essential extension of the Townsencl- Garrison Intertie facilities, and the annual costs of such transformer will be included in the calculation of the lntertie Charge. However, starting 1 month after extension to Garrison of the 500 -kV portion of the Federal Transmission System, the annual costs of such transformer will no longer he included in the calculation of the Intertie Charge. Schedule TGT -1 Townsend - Garrison Transmission 10 A. Nonfirm Transmission Charge: This charge will be filed as a separate rate schedule and revenues received thereunder will reduce the amount of revenue to be collected under the Intertie Charge below B. Intertie Charge for Firm Transmission Service: Intertie Charge = l(TAC/12 -NFR) x (CR EC) ) TCR SECTION III. DEFINITIONS A. TAC = Total Annual Costs of facilities associated with the Townsend- Garrison 500 -kV Transmission line includ- ing terminals, and prior to extension of the 500 -kV portion of the Federal Transmission System to Garrison, the 500/230 kV transformer at Garrison. Such annual costs are the total of (1) interest and amortization of associated Federal investment and the appropriate allo- cation of general plant costs; (2) operation and mainte- nance costs; (3) allowance for BPA's general administra- tive costs which are appropriately allocable to such facilities, and (4) payments made pursuantto section 7(m) of Public Law 96 -501 with respect to these facilities. Total Annual Costs shall be adjusted to reflect reductions to unpaid total costs as a result of any amounts received, under agreements for firm transmission service over the Montana Intertie, by the government on account of any reduction in Transmission Demand, termination or par- tial termination of any such agreement or otherwise to compensate BPA for the unamortizecl investment, an- nual cost, removal, salvage, or other cost related to such facilities. B. NFR = Nonfirm Revenues, which are equal to: (1) the product of the Nonfirm Transmission Charge described in II(A) above, and the total nonfirm energy transrnittecl over the Townsend- Garrison line segment under such charge for such month; plus (2) the product of the Nonfirm Transmission Charge and the total nonfirm energy transmitted in either direction by the Govern- ment over the Townsend -Garr ison line segment for such month. C. CR = Capacity Requirement of a customer on the Townsend - Garrison 500 -kV transmission facilities as specified in its firm transmission agreement. D. TCR = Total Capacity Requirement on the Townsend - Garrison 500 -kV transmission facilities as calculated by adding: (1) the sum of all Capacity Requirements (CR) specified in transmission agreements described in section 1; and (2) the Government's firm capacity re- quirement. The Government's firm capacity require- ment shall be no less than the total of the amounts, if any, specified in firm transmission agreements for use of the Montana lntertie. E. EC = Exchange Credit for each customer which is the product of (1) the ratio of investment in the Townsend - Broadview 500 -kV transmission line to the investment in the Townsend- Garrison 500 -kV transmission line; and (2) the capacity which the Government obtains in the Townsend - Broadview 500 -kV transmission Iine through exchange with such customer. If no exchange is in effect with a customer, the value of EC for such customer shall be zero. 1 1 General Transmission Rate Schedule Provisions SECTION 1 ADOPTION OF REVISED TRANS- MISSION RATE SCHEDULES AND GENERAL TRANSMISSION RATE SCHEDULE PROVISIONS A. Approval of Rates These rate schedules and GTRSPs shall become effective upon interim approval or upon confirmation and approval by FERC. BPA will request FERC approval effective October 1, 1991. BPA is requesting that all proposed Transmission Rate Schedules be effective for a period of 2 years, from October 1, 1991 through September 30, 1993. B. General Provisions These 1991 Transmission Rate Schedules and associ- ated GTRSPs are virtually identical to and supersede BPA's 1989 Transmission Rate Schedules and GTRSPs (which became effective October 1, 1989) but do not supersede prior rate sched- ules required by agreement to remain in force. Transmission service provided shall be subject to the following Acts, as amended: the Bonneville Project Act, the Regional Preference Act (P L. 88 -552), the Federal Columbia River Transmission System Act, and the Pa- cific Northwest Electric Power Planning and Conserva- tion Act. The meaning of terms used in the transmission rate schedules shall be as defined in agreements or provi- sions which are attached to the Agreement or as in any of the above Acts. C. Interpretation If a provision in the executed Agreement is in conflict with a provision contained herein, the former shall prevail. SECTION 11 BILLING FACTOR DEFINITIONS AND BILLING ADJUSTMENTS A. Billing Factors 1. Scheduled Demand The largest of hourly amounts wheeled which are scheduled by the customer during the time period specified in the rate schedules 12 2. Metered Demand The Metered Demand in kilowatts shall be the largest of the 60- minute clock -hour integrated demands measured by meters installed at each POD during each time period specified in the applicable rate schedule. Such measurements shall be made as specified in the Agreement. BPA, in determining the Metered Demand, will exclude any abnormal read- ings due to or resulting from (a) emergencies or breakdowns on, or maintenance of, the FCRTS; or (b) emergencies on the customer's facilities, provided that such facilities have been adequately maintained and prudently operated as determined by BPA. If more than one class of power is delivered to any POD, the portion of the metered quantities assigned to any class of power shall be as agreed to by the parties. The amount so assigned shall constitute the Metered Demand for such class of power. 3. Transmission Demand The demand as defined in the Agreement. 4. Total Transmission Demand The sum of the transmission demands as defined in the Agreement. 5. Ratchet Demand The maximum demand established during the previ- ous 11 billing months. Exception: If a Transmission Demand or Total Transmission Demand has been decreased pursuant to the terms of the Agreement during the previous 11 billing months, such decrease will be reflected in determining the Ratchet Demand. B. Billing Adjustments Average Power Factor The adjustment for average power factor, when speci- fied in a transmission rate schedule or in the Agreement, shall be made in accordance with the average power factor section of the General Wheeling Provisions. To maintain acceptable operating conditions on the Federal system, BPA may restrict deliveries of power at any time that the average leading power factor or aver- age lagging power factor for all classes of power deliv- ei ed to such nt or to such systeni is below 85 percent. SECTION 111. OTHER DEFINITIONS Definitions of the terms below shall be applied to these provisions and the Transmission Rate Schedules, unless otherwise defined in the Agreement. A. Agreement An agreement between BPA and a customer to which these rate schedules and provisions may be applied. B. Decremental Cost As used in the MT rate schedule, Decremental Cost is as defined in the WSPP Agreement. C. Eastern intertie The segment of the FCRTS for which the transmission facilities consist of the Townsend - Garrison double - circuit 500 kV transmission line segment including related terminals at Garrison. D. Electric Power Electric peaking capacity (kW) and /or electric energy (kWh). E. FCRTS The transmission facilities of the Federal Columbia River Power System, which include all transmission facilities owned by the government and operated by BPA, and other facilities over which BPA has obtained trans- mission rights. F. Firm Transmission Service Transmission service which BPA provides for any non - BPA power except for transmission service which is scheduled as nonfirm. If the firm service is provided pursuant to the Agreement, the terms of the Agreement may further define the service. G. Integrated Network The segment of the FCRTS for which the transmission facilities provide the hulk of transmission of electric power within the Pacific Northwest, excluding facilities not segmented to the network in the Wholesale Power Rate Development Study used in BPA's rate develop- ment. H. Main Grid As used in the FPT and iR rate schedules, that portion of the integrated Network with facilities rated 230 kV and higher. I. Main Grid Distance As used in the FPT rate schedules, the distance in airline miles on the Main Grid between the POI and the POD, multiplied by 1.15. 13 1. Main Grid Interconnection Terminal As used in the FPT rate schedules, Main Grid terminal facilities that interconnect the FCRTS with non -BPA facilities. K. Main Grid Miscellaneous Facilities As used in the FPT rate schedules, switching, transforma- tion, and other facilities of the Main Grid not included in other components. L. Main Grid Terminal As used in the FPT rate schedules, the Main Grid terminal facilities located at the sending and /or receiving end of a line exclusive of the Interconnection terminals. M. Nonfirm Transmission Service Interruptible transmission service which BPA may pro- vide for non -BPA power. N. Northern Intertie The segment of the FCRTS for which the transmission facilities consist of two 500 kV lines between Custer Substation and the United States - Canadian border, one 500 kV line between Custer and Monroe Substations, and two 230 kV lines from Boundary Substation to the United States - Canadian border, and the associated sub - station facilities. O. Point of Integration (P01) Connection points between the FCRTS and non -BPA facilities where non - Federal power is made available to BPA for wheeling. P. Point of Delivery (POD) Connection points between the FCRTS and non -BPA facilities where non - Federal power is delivered to a customer by BPA. Secondary System As used in the FPT and iR rate schedules, that portion of the Integrated Network facilities with operating voltage of 115 kV or 69 kV. R. Secondary System Distance As used in the FPT late schedules, the number of circuit miles of Secondary System transmission lines between the secondary POI and the Main Grid or the secondary POD, or the Main Grid and the secondary POD. S. Secondary System interconnection Terminal As used in the FPT rate schedules, die terminal facilities on the Secondary System that interconnect the FCRTS with non -BPA tacilities. Q. T. Secondary System Intermediate Terminal As used in the FPT rate schedules, the first and final terminal facilities in the Secondary System transmission path exclusive of the Secondary System Interconnection terminals. U. Secondary Transformation As used in the FPT rate schedules, transformation from Main Grid to Secondary System facilities. V. Southern Intertie The segment of the FCRTS for which the major transmis- sion facilities consist of two 500 kV AC lines from John Day Substation to the Oregon - California border, a por- tion of the 500 kV AC line from Buckley Substation to Summer Lake Substation, and one 1,000 kV DC line between the Celilo Substation and the Oregon - Nevada border, and associated substation facilities. W. Transmission Service As used in the MT rate schedule, Transmission Service is as defined in the WSPP Agreement. SECTION IV. BILLING INFORMATION A. Payment of Bills Bills for transmission service shall be rendered monthly by BPA. Failure to receive a bill shall not release the customer from liability for payment. Bills for amounts due of $50,000 or more must be paid by direct wire transfer; customers who expect thatthei r average monthly bill will not exceed $50,000 and who expect special difficulties in meeting this requirement may request, and BPA may approve, an exemption from this requirement. Bills for amounts due BPA under $50,000 may be paid by direct wire transfer or mailed to the Bonneville Power Administration, P.O. Box 6040, Portland, Oregon 97228- 6040, or to another location as directed by BPA. The procedures to be followed in making direct wire trans- fers will be provided by the Office of Financial Manage- ment and updated as necessary. 1. Computation of Bills The transmission billing determinant is the electric power quantified by the method specified in the Agreement or Transmission Rate Schedule. Sched- uled power or metered power will be used. The transmission customer shall provide necessary information to BPA for any computation required to determine the proper charges for use of the FCRTS, and shall cooperate with BPA in the exchange of additional information which may be reasonably useful for respective operations. 14 Demand and energy billings for transmission service under each applicable rate schedule shall he rounded to whole dollar amounts, by eliminating any amount which is less than 50 cents and increasing any amounts from 50 cents through 99 cents to the next higher dollar 2. Estimated Bills At its option, BPA may elect to render an estimated bill to be followed at a subsequent billing date by a final bill. The estimated bill shall have the validity of and be subject to the same payment provisions as a final bill. 3. Billing Month For charges based on scheduled quantities, the billing month is the calendar month. For charges based on metered quanfities, the bi I ling month is defined as the interval between scheduled meter - reading dates. The billing month will not exceed 31 days in any case. While it may be necessary to read meters on a day other than the scheduled meter- reading date, for determination of billing demand, the billing month will cease at 2400 hours on the last scheduled meter - reading date. Schedules will be predetermined. The customer must give 30 days notice to request a change to the schedule. 4. Due Date Bills shall be due by close of business on the 20th day after the date of the hill (due date). Should the 20th day be a Saturday, Sunday, or holiday (as celebrated by the customer), the due date shall be the next following business day. 5. Late Payment Bills not paid in full on or before close of business on the due date shall be subject to a penalty charge of $25. In addition, an interest charge of one - twentieth percent (0.05 percent) shall be applied each day to the sum of the unpaid amount and the penalty charge. This interest charge shall be assessed on a daily basis until such time as the unpaid amount and penalty charge are paid in full. Remittances received by mail will be accepted with- out assessment of the charges referred to in the preceding paragraph provided the postmark indi- cates the payment was mailed on or before the due date. Whenever a power bill or a portion thereof remains unpaid subsequent to the due date and after giving 30 days' advance notice in writing, BPA may cancel the contract for service tome customer. How- ever, such cancellation shall not affect the customer's liability for any charges accrued prior thereto under such agreement 6. Disputed Billings In the event of a disputed killing, fu 11 payment shall be rendered to BPA and the disputed amount noted. Disputed amounts are subject to the late payment provisions specified above. BPA shall separately account for the disputed amount. If it is determined that the customer is entitled to the disputed amount, B PA shall refund the disputed amount with interest, as determined by BPA's Office of Financial Manage- ment. BPA retains the right to verify, in a manner satisfactory to the Administrator, all data submitted to BPA for use in the calculation of BPA's rates and corresponding rate adjustments. BPA also retains the right to deny eligibility for any BPA rate or corresponding rate adjustment until all submitted data have been ac- cepted by BPA as complete, accurate, and appropri- ate for the rate or adjustment under consideration. 7. Revised Bills As necessary, BPA may render a revised bill. a. If the amount of the revised bill is less than or equal to the amount of the original bill, the revised bill shall replace all previous bills issued by BPA that pertain to the specified customer for the specified billing period and the revised bill shall have the same date as the replaced bill. b. If a revision causes an additional amount to be due BPA or the specified customer beyond the amount of the original bill, a revised bill will be issued for the difference and the date of the revised bill shall be its date of issue. 15 GWP Form -4R (04- 15 -83) GENERAL WHEELING PROVISIONS Index to Sections Section Pane GENERAL APPLICATION 1. Interpretation 2 2. Definitions 2 3. Prior Demands 4 4. Measurements 4 5. Measurements and Installation of Meters 5 6. Tests of Metering Installations 5 7. Adjustment for Inaccurate Metering 5 8. Character of Service 6 9. Point(s) of Delivery and Delivery Voltage 6 10. Combining Deliveries Coincidentally 6 11. Suspension of Deliveries 6 12. 'Continuity of Service 13. Uncontrollable Forces 7 14. Reducing Charges for Interruptions 15. Net Billing 7 16. Average Power Factor 7 17. Permits 8 18. Ownership of Facilities 8 19. Adjustment for Change of Conditions 8 20. Dispute Resolution and Arbitration 9 21. Contract Work Hours and Safety Standards 10 22. Convict Labor 11 23. Equal Employment Opportunity 11 24. Additional Provisions 12 25. Reports 12 26. Assignment of Contract 12 27. Waiver of Default 13 28. Notices and Computation of Time 13 29. Interest of Member of Congress 13 APPLICABLE ONLY IF TRANSFEREE IS A PARTY TO THIS CONTRACT 30. Balancing Phase Demands 13 31. Adjustment for Unbalanced Phase Demands 13 32. Changes in Requirements or Characteristics 13 33. Inspection of Facilities 13 34. Electric Disturbances 14 35. Harmonic Control 15 APPLICABLE ONLY IF TRANSFEREE IS NOT A PARTY TO THIS CONTRACT 36. Protection of the Transferor RELATING ONLY TO RURAL ELECTRIFICATION BORROWERS 37. Approval of Contract • APPLICABLE ONLY IF BONNEVILLE IS THE TRANSFEROR 38. Equitable Adjustnent of Rates EMIT B 15 15 15 for such purpose. Bonneville, in determining the Measured Demand, will exclude any abnormal Integrated Demands due to, or resulting from (a) emergencies or breakdowns on, or maintenance of, either parties' facilities, and (b) emergencies on facilities of the Transferee, provided that such facilities have been adequately maintained and prudently operated as determined by Bonneville. If the contract provides for delivery of more than one class of power to a Transferee at any Point of Delivery, the portion of each Integrated Demand assigned to any class of power shall be determined as specified in the contract. The portion of the Integrated Demand so assigned shall constitute the Measured Demand for such class of power. (e) "Month" means the period commencing at the time when the meters mentioned in this contract are read by Bonneville and ending approximately 30 days thereafter when a subsequent reading of such meters is made by Bonneville (f) "Point(s) of Delivery' means the point(s) of delivery listed either in the Points of Delivery Exhibit to this contract or in the body of this contract. (g) 'System" or "Facilities" means the transmission facilities: (1) which are owned or controlled by either party, or (2) which either party . may use under lease, easement, or license. (h) 'Transferee" means an entity which receives power or energy from the system of the Transferor. (i) "Transferor" means an entity which receives at one point on its system a supplying entity's power or energy and makes such power or energy available at another point on its. system for the account of the delivering entity or a third party. (j) 'Uncontrollable Forces' means: (1) strikes or work stoppage affecting the operation of the Contractor's works, system, or other physical facilities or of the Federal System Facilities or the physical facilities of any Transferee upon which such operation is completely dependent; the term "strikes or work stoppage' shall be defined to include threats of imminent strikes or work stoppage which reasonably require a party or Transferee to restrict or terminate its operations to prevent substantial loss.or damage to its works, system, or other physical facilities; or (2) such of the following events as the Contractor or Bonneville or any Transferee by exercise of reasonable diligence and foresight, could not reasonably have been expected to avoid: (A) events, reasonably beyond the control of either party or any Transferee, causing failure, damage, or destruction of any works system or facilities of such party or Transferee; the word "failure" automatically recorded by such meter or, at the request of either party, the measurement as mutually determined by the best available information. . If it is provided in this contract that measurements made by any of the meters specified therein are to be adjusted for losses, such adjustments shall be made by using factors, or by compensating the meters, as agreed upon by the parties hereto. If changes in conditions occur which substantially affect any such loss factor or compensation, it will be changed in a manner which will conform to such change in conditions. 5. Measurements and Installation of Meters. Bonneville may at any time install a meter or metering equipment to make the measurements for any Point of Delivery required for any computation or determination mentioned in this contract, and if so installed, such measurements shall be used thereafter in such computation or determination,. 6. Tests of Metering Installations. Each party to this .contract shall, at its expense, test its metering installations associated• with this contract at least once every two years, and, if requested to do so by the other party, • shall make additional tests or inspections of such installations, the expense of which shall be paid by such other party unless such additional tests or inspections show the measurements of such installations to be inaccurate as specified in section 7. Each party shall give reasonable notice of the time when any such test or inspection is to be made to the other party who may -have representatives present at such test or inspection. Any component of such installations found to be defective or inaccurate shall be adjusted, repaired or replaced to provide accurate metering.. 7. Adjustment for Inaccurate Metering (a) If any meter mentioned in this contract fails to register, or if the measurement made by such meter during a test made as provided in section 6 varies by more than one percent from the measurement made by the standard meter used in such test, or If an error in meter reading occurs, adjustment shall be made correcting all measurements for the actual period during which such innacurate measurements were made, if such period can be determined. If such period cannot be determined, the adjustment shall be made for the period immediately preceding the test of such meter which is equal to the lesser of (a) one -half the time from the date of the last preceding test of such meter, or (b) six months. Such corrected measurements shall be used to recompute the amounts of any electric power and energy to be made available, or any credits to be made in any exchange energy account, and of any money compensation to be paid to the Transferor as provided in this contract. (b) If the credit theretofore made to the Transferor in the exchange energy account varies from the credit to be made as recomputed, the amount of the variance will be credited in such exchange energy account to the party entitled thereto. (c) If the money compensation theretofore paid to the Transferor varies from the money compensation to be paid as recomputed, the amount of the variance will be paid to the party entitled thereto after both parties have agreed to such rec omputation and within 30 days after receipt of invoice by the designated payment office of the payer; provided, however, that the other 13. Uncontrollable Forces. Each party shall notify the other as soon as possible or any uncontrol aoie Forces which may in any way affect the delivery of power hereunder. In the'event the operations of either party are interrupted or curtailed due to such Uncontrollable Forces, such party shall exercise due diligence to reinstate such operations with reasonable dispatch. 14. Reducing Charges for Interruptions. If deliveries of electric power and energy to the !'ransteree are suspenaea, interrupted, interfered with or curtailed due to Uncontrollable Forces on either the Transferee's System or Transferor's System, or if the Transferor interrupts or reduces deliveries to the Transferee for any of the reasons stated in section 12 hereof, the credit in the exchange energy account which would otherwise be made, or the money compensation which would otherwise be paid to the Transferor, shall be appropriately reduced. No interruption, or equivalent interruption, of less than 30 minutes duration will be considered for computation of such reduction in charges. 15. Net Billing. Upon mutual agreement of the parties, payment due one party may be offset against payments due the other party under all contracts between the parties hereto for the sale and exchange of electric power and energy, use of transmission facilities, operation and maintenance of electric facilities, lease of electric facilities, mutual supply of emergency and standby electric power and energy, and under such other contracts between such parties as the parties may agree, unless otherwise provided in existing - contracts between the parties. Under contracts included 'in this procedure, all payments due one party in any month shall be offset against payments due the other party in such month, and the resulting net balance shall be paid to the party in whose favor such balance- exists unless the latter elects to have such balance carried forward to be added to the payments due it in a succeeding month. 16. Average Power Factor. (a) The formula for determining average power factor is as follows: Average Power Factor - Kilowatthours /(Kilowatthours)' + (Reactive Kilovolt- ampere- hours)L The data used in the above formula shall be obtained from meters which are ratcheted to prevent reverse registration. (b) When delivery of electric power and energy by the Transferor at any point'Is commingled with any other class or classes of power and it is impracticable to separately meter the kilowatthours and reactive kilovolt -ampere-hours for each class, the average power factor of the total delivery of such electric power and energ' for the month will be used, where applicable, as the power factor for each of the separate classes. (c) .Except as it is otherwise specifically provided in this contract, no adjustment will be made for power factor at any point of delivery described in this contract while the varhours delivered at such point are not measured. equipment or facilities for that purpose shall be deemed to be a change of conditions within the meaning of the preceding sentence. If, pursuant to the terms of the agreement establishing such exchange energy account, another rate is substituted for the rate to be used in settling the balance In such account, the number of kilowatthours to be credited to the Transferor in such account for each month as provided in this agreement, shall be changed for each month thereafter to the amount computed by multiplying such number of kilowatthours by 2.5 mills and dividing the resulting. product by the currently effective substituted rate in mills per ki1owatthour. 20. Dispute Resolution and arbitration. (a) Pending resolution of a disputed matter the parties will continue - performance of their respective obligations pursuant to this contract. If the parties cannot reach timely mutual agreement on any matter in the administration of this contract Bonneville shall, unless otherwise specifically provided for in subsection (b) below and, to the extent necessary for its continued performance, make a determination of such matter without prejudice to the rights of the other party. Such determination shall not constitute a waiver of any other remedy belonging to the Contractor. (b) The questions of -fact stated below shall be subject to arbitration. Other questions of fact under this contract may be submitted to arbitration upon written mutual agreement of the parties. The party calling for arbitration shall serve notice in writing upon the other party, setting forth in detail the question or questions to be arbitrated and the arbitrator appointed by such party. The other party shall, within 10 days after the receipt of such notice, appoint a second arbitrator, and the two so appointed shall choose and appoint a third. In case such other party fails to appoint an arbitrator within said 10 days, or in case the two so appointed fail for 10 days to agree upon and appoint a third, the party calling for the arbitration, upon 5 days' written notice delivered to the other party, shall apply to the person who at the time shall be the presiding judge of the United States Court of Appeals for the Ninth Circuit for appointment of the second and third arbitrator, as the case may be. The determination of the question or questions submitted for arbitration shall be made by a majority of the arbitrators and shall be binding on the parties. Each party shall pay for the services and expenses of the arbitrator appointed by or for it, for its own attorney fees, and for compensation for its witnesses or consultants. All other costs incurred in connection with the arbitration shall be shared equally by the parties thereto. The questions of fact to be determined as provided in this section shall be limited to: (1) the determination of the measurements to be made by the parties hereto pursuant to section 4; (2) the correction of the measurements to be made pursuant to section 7; e (d) Subcontracts. The Contractor shall insert in any subcontracts the clauses set rortn in subsections (a) through (c) of this provision and also a clause requiring the subcontractors to include these'clauses in any lower tier subcontracts which they may enter into, together with a clause requiring this insertion in any furthersubcontracts that may in turn be made. (e) Records. The Contractor shall maintain payroll records containing the information specified in 29 CFR 516.2(a). Such records shall be preserved for 3 years from the completion of the contract. 22. Convict Labor. In connection with the performance of work under this contract, the Contractor agrees, if and to the extent required by applicable law or if not otherwise exempted, not to employ any person undergoing sentence of imprisonment except as provided by Public Law 89 -176, September 10, 1965 (18 U.S.C. 4082(c)(2)) and Executive Order 11755, December 29, 1973. 23. Equal Employment Opportunity. During the performance of this contract, if and to the extent required by applicable law or if not otherwise exempted, the Contractor agrees as follows: . (a) The Contractor will not discriminate against any employee or ' applicant for employment because of race, color, religion, sex, or national origin. The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without ,regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to the following.' employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by Bonneville setting forth the provisions of the Equal Opportunity clause. (b) The Contractor will, in all solicitations or advertisements for • employees placed by or on behalf of the Contractor, state that art qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. (c) The Contractor will send to each labor union or representative of workers with which said Contractor has a collective bargaining agreement or other contract or understanding, a notice, to be provided by Bonneville, advising the labor union or worker's representative of the Contractor's commitments under this Equal Opportunity clause and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (d) The Contractor will comply with all provisions of Executive Order No. 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (e) The Contractor will furnish all information and reports required by Executive Order No. 11246.of September 24, 1955,•and by the rules, regulations, and relevant orders of the Secretary of Labor, or pursuant 71 specifically provided in this section. The consent of Bonneville is hereby given to any security assignment or other like financing instrument which may be required under terms of any mortgage, trust, security agreement or holder. of such instrument of indebtedness made by and the Contractor and any mortgagee, trustee, secured party, subsidiary of the Contractor or holder of such instrument of indebtedness, as security for bonds of other indebtedness of such Contractor, present or future; such mortagagee, trustee, secured party, subsidiary, or holder may realize upon such security in foreclosure or other suitable proceedings, and succeed to all right, title, and interests of such Contractor. 27. Waiver of Default. Any waiver at any time by any party to this contract of its rights with respect to any default of any other party thereto, or with respect to any other matter arising in connection with such contract, shall not be considered a waiver with respect to any subsequent default or matter. 28. Notices and Computation of Time. Any notice required by this contract to be given to any party shall be effective when it is received by such party, and in computing any period of time from such notice; such period shall commence at 2400 hours an the date of receipt of such notice. 29. Interest of Member of Congress. Congress, or Resident Conntssioner shall this contract or to any benefit that may shall not be construed to extend to this for its general benefit. No Member of, or Delegate to be admitted to any share or part of arise therefrom, but this provision contract if made with a• corporation APPLICABLE ONLY IF TRANSFEREE IS A PARTY TO THIS CONTRACT 30. Balancing Phase Demands. If required by the Transferor at any time during the term of this contract, the Transferee shall promptly make such changes as are necessary on its system to balance the phase currents at any Point of Delivery so that the current of any one phase shall not exceed the current on any other phase at such point by more than 10 percent. 31. Adjustment for Unbalanced Phase Demands. If the Transferee fails to promptly make tne changes mentioned in section iO, the Transferor may, after giving written notice one month in advance, determine that the Measured Demand of the Transferee at the Point of Delivery in question during each month thereafter, until such changes are made, is equal to the product obtained by multiplying by three the largest of the Integrated Demands on any phase adJusted as appropriate to such point during such month. 32. Changes in Requirements or Characteristics. The Transferee will, whenever possible, give reasonable notice to tne transferor of any unusual increase or decrease of its demands for electric power and energy on the Transferor's system, or of any unusual change in the load factor or•oower factor at which the Transferee will take delivery of electric power and energy under this contract. - 33. Inspection of Facilities. Each party may for any reasonable purpose under this contract inspect the other party's electric installation at any reasonable time. Such inspection, or failure to inspect, shall not render (f) Nothing in this section shall be construed to create any duty to, any standard of care with reference to, or any liability to any person not a party to this contract. 33. Harmonic Control. Each party shall design, construct, operate, maintain and use its electric facilities in accordance with good engineering practices to reduce to acceptable levels the harmonic currents and voltages which pass into the other party's facilities. Harmonic reductions shall be accomplished with equipment which is specifically designed and permanently operated and maintained as an integral part.of the facilities of the party which awns the system on which harmonics are generated.• APPLICABLE ONLY IF TRANSFEREE IS NOT A PARTY TO THIS CONTRACT 36. Protection of the Transferor. Protection is or will be afforded to Bonneville or its Transferor under such of the following provisions and conditions as are specified in each contract executed or to be executed by Bonneville and each third party Transferee named in this contract: the power factor clause of the applicable Bonneville Wholesale Rate Schedule and the subject matter set forth in the General Contract Provisions under the following titles, namely: Adjustment for Unbal ariced Phase Demands; Uncontrollable Forces; Continuity of Service; Changes in Demands or Characteristics; Electric Disturbances; Harmonic Control; Balancing Phase Demands; Permits; Ownership of Facilities; and Inspection of Facilities. RELATING TO RURAL ELECTRIFICATION ADMINISTRATION BORROWERS 37. Approval of Contract.. If the Contractor borrows from the Rural Electrification Administration or any other entity under an indenture which requires the lender's approval of contracts, this contract and any amendment thereto shall not be binding on the parties thereto if they are•not approved by the Rural Electrification Administration or such other entity. The Contractor shall notify Bonneville of any such entity. If approval is given, such contract or amendment shall be effective at the time stated therein. APPLICABLE ONLY IF BONNEVILLE IS THE TRANSFEROR 38. Equitable Adjustment of Rates. (a) Bonneville shall establish, periodically review and revise rates for the wheeling of electric power and /or energy pursuant to the terms of this contract. Such rates shall be established in accordance with applicable law. (b) As used in this section, the words "Rate Adjustment Date" shall mean any date specified.by Bonneville in a notice of intent to file revised rates as published in the Federal Register; provided, however, that such date shall not occur sooner than (1) nine months rrom the date treat such notice of intent is published; or (2) twelve months from any previous Rate Adjustment Date. By giving written notice to the Contractor 45 days prior to such Rate Adjustment Date, Bonneville may delay such Rate Adjustment Date for up to 90 days if . Bonneville determines either that the revenue level of the proposed rates A. Points of Integration, Points of Delivery, Transmission Demand, Charges, and Resources. Point of Integration (Voltage) (P0I) Government's Port Angeles Substation 69 kV Bay 26 Point of Delivery (POD) (Voltage) Government's Port Angeles Substation - 69 kV Bay 23 (5040j) Transmission Demand 485 KW Transmission Parameters 1/ Composite UFT charge based on Bays 23 & 26. Exhibit C, Page 1 of 4 Contract No. DE- MS79- 91BP93194 Morse Creek Hydroelectric Project Effective at 2400 hours on the Effective Date of this Agreement Use -of- Resource Facilities to be Charge (UFT) Integrated $0.097 /kW /mo Morse Creek 1/ Exhibit C, Page 2 of 4 Contract No. DE- MS79- 91BP93194 Morse Creek Hydroelectric Project Effective at 2400 hours on the Effective Date of this Agreement B. Calculation of Charges Pursuant to the UFT -83 Rate Schedule: 2/ 1/ 3/, 4/ I&A I &A 0&M Sum of 6/ Annual Annual Annual Non - Coincidental 5/ Project Facility Investment Cost Ratio Cost Cost Demands $ /kW /vr. Demand Government's $160,631 8.73 $14,023 $6,533 28,185 kW 0.729 485 kW Port Angeles Substation 69kV Bay 26 Bay 23 $257,740 8.73 $22,501 $6,533 66,219 kW 0.438 485 kW (5040j) Total UFT Charge = $1.168 /kW yr $0.097 /kW /mo 1/ 0 &M charge based on low voltage terminal in 2 -4 -91 0 &M cost tables. 2/ Normally taken from current ACR table, column (8) minus column (5), Type S5 Substation, revised table dated 5 -3 -91. 3/ 1992 peak loads from Clallam Eastern (27,700 kW) plus Morse Creek (485 kW). 4/ 1992 peak loads from Port Angeles' City No. 1 bay (60.18 % of Port Angeles' City Nos. 1 and 2) plus Morse Creek (485 kW) plus Clallam's Eastern bay (27,700 kW). (60.18% X 63,200) + 485 + 27,700 = 66,219 kW. 5/ Unit Charge = (I &A Annual Cost) + 0 &M Annual Cost = $ /kW yr. Sum of Non - Coincidental Demands Monthly Charge = ($ /kW yr) (Project Demand) = $ /mo. 12 months 6/ Ratchets shall be handled in accordance with section 5(c). B. Description of Project and Points of Intearation and Points of Delivery 1. MORSE CREEK HYDRO PROJECT Location: the project is located in the NW 1/4 of Section 29, T30N, R5W, Willamette Meridian, Clallam County, Washington; approximately 3 miles east of Port Angeles and 1 -1/2 to 2 miles south of state route 101 and primarily east of Glass Road; Demand: 485 kW; Voltage: 12.5 kV; Exhibit C, Page 3 of 4 Contract No. DE- MS79- 91BP93194 Morse Creek Hydroelectric Project Effective at 2400 hours on the Effective Date of this Agreement Metering: in the City's powerhouse, in the 480 volt circuit over which such electric power and energy flows; Adjustments: there shall be an adjustment for transformation losses between the Project point of metering and the high side of the Project transformer. 2. MORSE CREEK POINT OF INTERCONNECTION Location: A point on the Utility's distribution line approximately one half mile from the Morse Creek Hydro Project at the junction of Glass and Boyd Roads where the distribution lines of the Utility and the line from the City's Project interconnect; Voltage: 12.5 kV; Adjustments: there shall be an adjustment for transmission losses between the Morse Creek Hydro Project and the Morse Creek Point of Interconnection. 3. PORT ANGELES POINT OF INTEGRATION Location: the point in Bay 26 ( Clallam Co. PUD's Feeder No. 1) in the Government's Port Angeles Substation where the 69 kV facilities of the Utility and the Government are connected; Voltages: 69 kV; Metering: in the Government's Port Angeles Substation in the 69 kV circuit over which such electric power and energy flows; Adjustments: there shall be an adjustment for distribution losses between the Utility's Morse Creek Point of Interconnection and the Government's Port Angeles Point of Interconnection. 4. PORT ANGELES POINT OF DELIVERY (5040j) Exhibit C, Page 4 of 4 Contract No. DE- MS79- 91BP93194 Morse Creek Hydroelectric Project Effective at 2400 hours on the Effective Date of this Agreement Location: the point in Bay 23 (Port Angeles Feeder No. 1) in the Government's Port Angeles Substation where the 69 kV facilities of the City and the Government are connected; Voltages: 69 kV; Metering: in the Government's Port Angeles Substation in the 69 kV circuit over which such electric power and energy flows; Adjustments: there shall be no adjustment for losses between the Point of Interconnection and the Point of Delivery. (5040j) Loss Factors Exhibit D, Page 1 of 1 Contract No. DE- MS79- 91BP93194 Morse Creek Hydroelectric Project Effective at 2400 hours on the Effective Date of this Agreement The losses specified in this exhibit under Points of Interconnection and Points of Delivery shall consist of two components. The first is the transformation and transmission losses from the Project to the Morse Creek Point of Interconnection, and the second is the transmission and transformation losses from the Morse Creek Point of Interconnection to the Port Angeles Point of Integration. No losses shall be applied between the Port Angeles Point of Integration and the Port Angeles Point of Delivery as specified in this exhibit. The losses between the Project Point of Metering and the Port Angeles Point of Integration shall be submitted to the City and the Utility by Bonneville by separate letter. The revision of these losses shall be as specified in section 4(c). Resource Services Exhibit E, Page 1 of 1 Contract No. DE- MS79- 91BP93194 Morse Creek Hydroelectric Project Effective at 2400 hours on the Effective Date of this Agreement Resource service charges shall be incorporated into Exhibit E as developed by Bonneville according to section 4(d) of this agreement. As of the Effective Date of this Agreement, the resource service charge As zero. (5040j) EXHIBIT "B" OPERATION PROCEDURES I Reference map and schematic are attached. II Normal operation of hydroproject: a. Main valve (1) is open. b. Isolating valve (2) is open. c. Powerhouse valve (3) is open. d. Line valve (4) is closed. e. Hydroproject generates power. District draws water from pipeline for treatment plant. III Streamflow shutdown: a. Streamflows below FERC license limits are sensed by float at the City's diversion structure. b. A signal is sent to the powerhouse. c. Generation shutdown at the powerhouse by valve (3). d. Flow to District's treatment plant is not interrupted. IV Pipeline break shutdown: a. Loss of pipeline pressure is sensed at powerhouse. b. A signal is sent to the diversion structure. c. Main valve (1) closes and hydroproject shuts down. d. Flow to District's treatment plant is interrupted. City notifies District. e. City determines location of break: 1. Upstream of District treatment plant - cannot re- establish water flow until repaired. Repairs will be by the City. LI0060[2] 2. Downstream of District treatment plant - City crew closes isolating valve (2) and opens main valve (1) to re- establish water flow to the District's treatment plant. Repairs will be by the City. f. After repairs, City opens isolating valve (2) or main valve (1) and restarts hydroproject (if appropriate). V Electric system fault shutdown: a. District's system protection opens on fault condition. Hydroproject's protection opens on fault condition. b. Powerhouse valve (3) closes. c. Flow to District's treatment plant is not interrupted. d. District isolates work area if fault is on its system - possibly opening switch D4260. City isolates work area if fault is on its underground cable - would open switch D4260. When switch D4260 is operated by either party, the other will be notified. e. After repairs are made and verification that all workers are in the clear, lines will be re- energized by the owner. f. City will open powerhouse valve (3) and restart the hydroproject. NOTE: A similar procedure would be used in the event of loss of transmission system voltage. VI Planned maintenance shutdown: a. The party planning the maintenance shutdown of electric or water lines will notify the other party 48 hours in advance. b. Planned maintenance will be scheduled to minimize the time normal operation under this Agreement will be interrupted. VII Emergency conditions: When other emergency conditions occur that interrupt normal operation under this Agreement, the affected party will notify the other as soon as reasonably possible. LI0060(2) ita fa hl Rit EXHIBIT `B' 1000 ••w jr rtt_.Ir{ V N/ ••. R{.1 • • I GLASS ROAD it PAS U R E L A _ ME PLAN � ••�~ 41.144.4 IMP ww.n.e. tall .. •r .ura.t{• P 1 . 1 1i PENSTOCK PROFILE •w • M _ .e..{ h R {t V ;11 {In.... "7" ai 410444 / N D w // X31 -- - x. .160 �' K 0 0 0 l A N D > t 1.!• tA t • ••. .••. ./M •• t...VL •.It414.44... { ..M ... ..4 t.w /... .•.4 M /M •• M •141. 1 / ..41• PLEASANT ROAD ,4 CI a 1 Y � 4 SEE ENLARGED S LAM 1L FIG' RE F - 7 / 4T. 1/ 0f.1111. ' /w...w r" YAK to-0.4 okstoscv. 64246 AGUSC. APO.* • P un HiB ► EX v11 W /ATEA PrrgablE Q,ClJ � D Q c N ,V� z. 1 L IJ�D� -�� GtZ � µ i < tea► o 4 � W A'� G� 'Cep S wttcN p 2o tio.ocozmocc. t5,1160,44 0 t'1TY ciNoBRC'` �Na POrle i t CREEKY City of Port Angeles, Washington Project No. 6461 -025 ORDER AMENDING LICENSE (Issued February 20, 2009) On August 13, 2007, the City of Port Angeles (City) filed an application to amend the minimum flows required under Article 19 of their project license for the Morse Creek Hydroelectric Project, FERC No. 6461. The project is located on Morse Creek, in Clallam County, Washington. BACKGROUND tL 2e 'ET IT b2. 138 UNITED STATES OF AMERICA FEDERAL ENERGY REGULATORY COMMISSION The project consists of a diversion dam at river mile (RM) 7.2, a screened intake structure, a 750 -ft long concrete tunnel, an 11,400 -R long buried 24 -inch diameter pipeline, and a 1,500 -11 long high pressure penstock leading to the powerhouse at RM 4.3. The bypass reach between the diversion dam and powerhouse is approximately 3.0 miles long. A waterfall, considered impassable to fish, is located at approximately RM 5.0, resulting in a 0.7 mile bypass reach accessible by anadromous fish. To protect resident trout populations in the bypass reach as well as any anadromous fish using the 0.7 mile accessible section of bypass reach, license Article 19 of the project's existing license stipulates minimum flows as measured at the project's intake structure located at the diversion dam. Under the existing license Article 19, no minimum instream flows are stipulated for seven months of the year based on the hydrological analysis and Instream Flow Incremental Methodology (IFIM) study conducted as part of the application process for the original license. Based on that analysis, it was assumed that natural flow minus the 19 cubic feet per second (cfs) diversion flow would provide suitable fish habitat conditions during these seven months. However, over the course of project operations, especially during drought periods, it was identified that the existing minimum flows under Article 19 are not always sufficient in meeting the habitat needs of anadromous salmonids. Furthermore, Puget Sound fall Chinook salmon and Coastal -Puget Sound bull trout were federally listed as "threatened" under the Endangered Species Act (ESA) in 1999 and have been observed in Morse Creek. As a result, the City, in consultation with the Lower Elwah Klallam Tribe (Tribe), Washington Department of Fish and Wildlife (WDFW) and 32 FERC y 62,618 Order Issuing License (Minor), issued September 20, 1985. Project No. 6461-025 - 2 - the Washington Department of Ecology (WDOE), determined that minimum instream flows should be provided for all months of the year to protect flow- related habitat for fish species present in Morse Creek, especially ESA - listed Chinook salmon and bull trout. By copy of a letter to the City, dated March 26, 2001 and filed with the Commission on April 3, 2001, the U.S. Fish and Wildlife Service (FWS) expressed concerns regarding the slope stability along the penstock route and the need to prevent landslides, which could affect the water quality of Morse Creek, and installation of a tailrace barrier to prevent fish from becoming trapped in the tailrace or delayed in their migration by being attracted to the tailrace flow from the powerhouse. Additionally, they offered assistance in addressing the needs of ESA - listed species for the project by continuing discussions with the City regarding their concerns and Identifying ways that the project could be operated to avoid or minimize impacts to bull trout. By letter issued May 14, 2001, the Commission recommended that the City continue working with the FWS in identifying any possible project-related impacts to the listed species while addressing the concerns raised by the FWS. By letters dated December 21, 2001 and March 14, 2003, and filed with the Commission on January 18, 2002 and March 24, 2003, respectively, the City provided updates regarding the project including the status of corrective actions addressing the FWS concerns. Additionally, the City's March 14, 2003 letter stated that several meetings with the resource agencies had occurred since April 2001 but requested that the Commission assist in facilitating an agreement between the resource agencies and the City regarding measures to protect listed species. By letter issued August 18, 2003, the Commission indicated their offer of assistance to the City by designating the City as the Commissions non - federal representative for purposes of Section 7 ESA informal consultation with the FWS and National Marine Fisheries Service (NMFS), consistent with the Commission's procedures for conducting post - licensing ESA consultations. By letter dated October 8, 20Q3 and filed with the Commission on October 14, 2003, the City expressed their willingness to act as the Commission's non-federal representative. Additionally, the City's October 2003 letter stated that the permanent tailrace barrier was completed and all other identified protective measures for the project had been completed. By letter issued October 31, 2003, the Commission notified the FWS, also acting as the lead for NMFS regarding Chinook salmon, that the City was acting as the Commission's non - federal representative for purposes of Section 7 ESA Informal consultation. By letter dated December 18, 2003, the City stated that they had reached agreement with WDFW, WDOE and the Tribe for new minimum flows for salmonid protection in Morse Creek, including the ESA- listed species. Additionally, the City stated that they would begin the state watershed planning process as it relates to Morse Creek and the new agreed upon minimum flows and the preparation of a biological assessment for the new Project No. 6461 -025 - 3 - minimum flows as stipulated in the Section 7 ESA consultation process. By letters dated January 12, 2004, the WDFW and the Tribe stated their support for the new minimum flows. By letter dated February 4, 2004, the WDOE also stated their support for the new minimum flows. By letter dated February 13, 2004 and filed with the Commission on February 17, 2004, the City provided an update to:the Commission regarding their Section 7 ESA consultation, their biological assessment, and their intent to begin operating the project under the newly agreed upon minimum flows. By letter issued February 26, 2004, the Commission acknowledged the City's Februarly 17, 2004 filing stating that the new minimum flows are consistent with their license requirements under Article 19 by providing additional flows and protection for the ESA - listed species in Morse Creek. On September 14, 2007, the Commission issued notice that the amendment application was accepted for filing. In response, a timely motion to intervene was filed by the WDOE on October 15, 2007 and the FWS filed a response stating that they did not have any comments. By letter issued November 5, 2007, the Commission provided FWS and NMFS a biological assessment for the City's proposed license amendment. Based upon our finding in the biological assessment that the new minimum flows "may affect, but are not likely to adversely affect" Puget Sound fall Chinook salmon or Coastal -Puget Sound bull trout, we requested their concurrence +ith our determination. By letter dated December 14, 2007 and filed with the Commission on December 18, 2007, FWS concurred with our "may affect, not likely to adversely affect" determination stating that the proposed minimum flows would be beneficial to bull trout. By letter dated and filed with the Commission on September 2, 2008, NMFS also concurred with our "may affect, but not likely to adversely affect" determination. The NMFS's letter also stated that critical habitat for Puget Sound Chinook salmon was designated in 2005, but did not include Morse Creek. Furthermore, with regard to the Magnuson - Stevens Fishery Conservation and Management Act (MSA), NMFS states that because the conservation measures that are included as part of the proposed action to address ESA and other concerns are also adequate to avoid, minimize, or otherwise offset potential adverse effects to designated Essential Fish Habitat, conservation recommendations pursuant to the MSA are not necessary. PROPOSED AMENDMENT The City proposes to modify the minimum instream flow requirements under Article 19 of their license. License Article 19 requires the City to release minimum flows into the project's bypass reach during four months of the year whereas the City's proposed amendment would provide minimum flows during eleven months of the year (project shut down during September) to protect salmonid habitat in the project's bypass reach, especially for ESA - listed Chinook salmon and bull trout. Furthermore, while the City's proposal would ensure habitat protection for fish species in Morse Creek, their proposal Project No. 6461 -025 - 4 - would provide greater operational flexibility and ensure a 'zero net loss' in project revenue. The existing minimum flows under license Article 19 are contained in Table 1 and the licensee's proposed new minimum flows are provided in Table 2. Table 1. Existing bt ss reach minimum Month(sl January through March April Mav through July August September October November December Table 2. Licensee's proposed bypass reach new minimum flows u measured at the d' dam. Month 1 Minimum Flow I Month January February 1 -14 February 15 -29 March Auril May June July 1 -15 MORSE CREEK FISH flows required under license Article 19. Oneration/Miuim Flow Proiect shut down at all streamflows 85 cfs Protect shut down at all streamflows 90 cfs Project shut down at all streamflows 100 cfs 65 cfs Proiect shut down at all streamflows Minimum Flow 48 cfs 1 July 16-31 50 cfs 48 cfs 1 August 1 -15 50 cfs 50 cfs I Auest 16-3 i 58 cfs 50 cfs 1 September No generation 55 cfs i October 1 -15 69 cfs 61 ell 1 October 16 -31 60 cfs 61 cfs 1 November 48 cfs 61 cfs I December 48 cfs Fish known to have inhabited Morse Creek include spring Chinook salmon, coho salmon, fall chum salmon, pink salmon, summer and winter steelhead, and searun cutthroat trout. Only a few visual, unconfirmed sightings of bull trout have been made and are generally considered to be strays. The fall/summer Chinook salmon in Morse Creek are considered an aggregate of native and hatchery fish once supplemented from the Elwha River. The WDFW conducted outplantings of non -native fall Chinook salmon in 1971, 1973, and 1988 from unknown sources. These outplanting efforts were considered to be unsuccessful based on spawning surveys from 1985 -2003, which indicated fewer than 10 falVsuunmer Chinook sahnon per year returning to Morse Creek. Based on available information, It is presumed that spring Chinook salmon have been extirpated from Morse Creek. The last verified sighting of spring Chinook salmon occurred in 1982. Morse Creek supports a fall chum salmon population, which reproduce below the project primarily in the lower 3.5 miles of Morse Creek. Based on surveys Project No. 6461 -025 - 5 - conducted by the Tribe since 1990, small annual runs of less than 50 chum salmon have been identified. Pink salmon escapement data collected by the Tribe since 1993 shows that the pink salmon population has been steadily building from depressed levels, with a peak escapement of approximately 2,000 fish in 2001. However, in 2003 the estimated escapement was only 200 fish. The current distribution of pink salmon spawning in Morse Creek occurs from approximately 0.2 miles below the impassable falls (RM 4.5) downstream for approximately 13 miles. Coho salmon spawning surveys conducted by WDFW and the Tribe from 1984 to 1994 indicate short-term declines, with a high of 134 fish in 1991 and a low of zero fish in 1993. Recent stream surveys suggest a continued decline of coho salmon in Morse Creek with the 2003 -2004 escapement data yielding only 6 redds observed during seven survey events. Although summer steelhead were last observed in Morse Creek in 1995, it is suggested that there may be a small remnant native stock present which may be comprised of stray hatchery fish from the Elwha or Dungeness River. Stream surveys indicate that a small population of winter steelhead occurs in Morse Creek with spawning occurring up to the impassable falls. Although recent data collected by WDFW has indicated a short- term decline in winter steelhead, the population has met or exceeded WDFW's escapement goal of 120 fish in six of the previous nine years. Both resident and sea -run forms of cutthroat trout are thought to exist in Morse Creek although there is lisle or no quantitative data concerning their status. Searun cutthroat trout are rarely observed but were historically present with an abundance level of approximately 200 fish. There is not considered to be a naturally occurring population of bull trout in Morse Creek. Although several sightings have been recorded in Morse Creek, it is believed that these fish are likely strays from adjacent Elwha or Dungeness River systems or other Juan de Fuca river populations. It is unknown if there is any reproduction in the lower reaches of Morse Creek, but that it may serve as a winter refugia and potential seeding areas for char (bull trout or Dolly Vanden) from the Elwha and Dungeness River populations. Based on radio telemetry studies, it is believed that bull trout dip into some of the independent tributaries along the coast where they are presumably feeding over winter. EFFECTS OF PROPOSED ACTION The proposed new minimum flows would preserve the natural bimodal hydrology of Morse Creek. This occurs in part because the project can only divert a relatively small portion of the creek for hydropower generation (19 cfs compared to a mean annual flow of 134 cfs) and in part because the probability of the project diverting any water with the proposed new minimum flows decreases as the natural streamtlow decreases, especially in the summer and early fall periods. Under median flow conditions (50% exceedance) the project would not operate during August, September and October. This period represents Project No. 6461 -025 - 6 - the primary period of upstream migration and spawning for fall Chinook and pink salmon, respectively. Under dry conditions (90% exceedance) the project would not operate from July 1 through December 31 (providing protection of salmonid rearing and all salmon spawning) and during early February and March through April (providing protection for steelhead trout spawning). As a result, the proposed new minimum flows would not be expected to adversely affect spawning and rearing habitat requirements for salmon and steelhead. Furthermore, since bull trout may only occur in the lower reaches of Morse Creek during the winter months for overwintering, they are not likely to be affected by the proposed action. The proposed new minimum flows would result in providing higher flows in Morse Creek during typical dry conditions in July, December, late February, and March compared to the current minimum flow requirements. As natural flows are reduced during extremely dry (drier than 90% exceedance) conditions, the proposed new minimum flows provide greater flows than under the current minimum flow requirements as a result of the project being shut down during these periods. Based on a maximum flow change of 19 cfs when the project is shut down, an approximate 1 -inch change (ramping rate) in water surface elevation would occur below the project. However, the project powerhouse contains a flow continuation valve and nozzle that allows water passing through the penstock to be diverted away from the turbine and into the tailrace while the turbine and generator are shutting down. Therefore, the project's operation would not be expected to result in any fish stranding in the event of a project shutdown. In order to document and ensure compliance with the proposed new minimum flows, the licensee should file an Annual Streamflow Monitoring Report with the Commission by March 1, beginning 2010. The report should include daily average flow data for the entire year as measured at the diversion dam. THREATENED AND ENDANGERED SPECIES Section 7(aX2) of the Endangered Species Act of 1973, 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. The federally threatened Puget Sound fall Chinook salmon and Coastal -Puget Sound bull trout have been observed in Morse Creek. The biological assessment concluded that the proposed amendment "may affect, not likely to adversely" affect Puget Sound fall Chinook salmon and Coastal -Puget Sound bull trout stating that the proposed new minimum flow would be beneficial to the fish species of Morse Creek, including the ESA - listed fall Chinook salmon and bull trout. By letter issued November 5, 2007, the Commission provided FWS and NMFS a biological assessment for the City's proposed flcense amendment and based upon its detemtination, requested their concurrence. By letters dated December 14, 2007 and September 2, 2008, Project No. 6461 -025 FWS and NMFS concurred, respectively, with ourldetermination and concluded the consultation process required under Section 7 of the ESA. WATER OUALITY CERTIFICATION Under section 401(a) of the Clean Water Act (CWA) the Commission may not issue a license for a hydroelectric project that authorizes any activity that may result in a discharge from the project unless the state water quality certifying agency either has issued water quality certification for the project or has waived certification by failing to act on a request for certification within a reasonable period of time, not to exceed one year. Section 401(d) of the CWA provides that the certification shall become a condition of any federal license that authorizes construction or operation of the project. On December 24, 2007, the City applied for amendment to their 401 Water Quality Certification with the Washington State Department of Ecology (WDOE) for their proposed amendment. On October 31, 2008, WDOE issued notice of the City's application. On December 17, 2008, WDOE issueil an amended 401 Water Quality Certification to the City and to the August 8, 1985 certification that it had issued for the original project license. The amended certification! addresses the amendment proposed in this proceeding. The amended 401 Water Quality Certification is included as Appendix A of this order, and is made part of the license for the project by ordering paragraph (C). The Directors orders: (A) The application to amend license, filed , iugust 13, 2007, to modify the minimum flow requirements under Article 19 of the September 20, 1985 Order Issuing License (Minor) is approved as provided for in this order, effective the day this order is issued. (B) The minimum flows under license Article 19 of the September 20, 1985 Order Issuing License (Minor) are revised according to the table below, as measured at the diversion dam: Month 1 Minimum Flow 1 1 Month January 1 48 cfs 1 July 16 Febntary 1 -14 1 48 cfs I August 1 -15 February 15 -29 1 50 cfs 1 August 16 - March 1 50 cfs 1 Seotember Aoril 1 55 cfs 1 October 1 -15 May 1 61 cfs 1 October 16-31 June 1 61 cfs 1 November July 1 -15 1 61 cfs 1 December Minimum Flow 50 cfs 50 cfs 58 cfs No generation 69 cfs 60 cfs 48 cfs 48 cfs Project No. 6461 - 025 - 8 - (C) Water Quality Certification. The license for the Morse Creek Hydroelectric Project is subject to the conditions of the amended Water Quality Certification, issued to the City of Port Angeles by the Washington Department of Ecology on December 17, 2008, under Section 401 of the Clean Water Act. The Water Quality Certification is attached to this order as Appendix A. (D) The licensee shall file annually with the Commission by March 1, beginning 2010, an Annual Streamflow Monitoring Report. The licensee's report shall include daily average flow data for the entire year as measured at the diversion dam. (E) The licensee shall file an original and seven copies of any filing required by this order with: The Secretary Federal Energy Regulatory Commission Mail Code: DHAC, PJ -12.3 888 First Street, NE Washington, DC 20426 (F) This order constitutes final agency action. Requests for rehearing by the Commission may be filed within 30 days of the date of issuance of this order, pursuant to 18 C.F.R. § 385.713. Tayl Chief, Biological Resources Branch Division of Hydropower Administration and Compliance Project No. 6461.025 IN THE MATTER OF GRANTING A ) WATER QUALITY CERTIFICATION TO City of Port Angeles for Morse Creek Hydropower Project with Chapter 90.48 RCW and the Rules and Regulations of the Department of Ecology - 9 - APPENDIX A STATE OF WASHINGTON DEPARTMENT OF ECOLOGY ORDER No. 6106 To: Mr. Larry Dunbar City of Port Angeles 321 East Fifth Street PO Box 1150 Port Angeles, WA 98362 -0217 This order amends the Clean Water Act 401 Certification issued to the Port Angeles Morse Creek Hydroelectric Project (FERC No. 6461) on August 8, 1985, for operation of the Morse Creek Hydroelecuic Project This order is issued under the provisions of Chapter 90.48 RCW and Chapter 173 - 201A WAC. Through this order the prior certification is hereby amended and replaced by this certification. In the event of a conflict with the requirements of this amendment and the prior certification, the requirements of the amendment shall prevail, unless the Department of Ecology (Ecology) provides otherwise by written order. 1.0 Nature of Project The Port Angeles Morse Creek project is a small 0.465 MW hydroelectric facility located on Morse Creek, which drains north to the Strait of Juan de Fuca and is approximately 15 mites east of Port Angeles, Washington. The Federal Energy Regulatory Commission (FERC) issued a license for the project in 1985. The project is owned by, managed and licensed to the City of Port Angeles, Washington. Major project features include: (a) a diversion dam (10 -foot high by 25 -foot wide) located at river mile (RM) 72; (b) an intake structure with fixed fish screens and trash tack; (c) a 750 -foot long concrete tunnel, an 1 1,400 -foot long buried 24 -inch diameter pipeline, and a 1,500 -foot long high pressure penstock leading to the powerhouse at RM 43; and (d) a single Patton wheel turbine with a generating capacity of 465 kilowatt (kW). A natural falls at RM 4.9 divides the watershed, posing an impassable barrier to anad ; fish. A Project No. 6461 -025 -10 - resident population of rainbow trout occurs above the Bibs. The City operates the project in a run -of -river mode and it has no useable storage capacity. Consequently, the project can only operate when the natural river flow is significantly greater than the requited bypass reach minimum flow. 2.0 Flndiags Project backgrowsd Information related to the certification amendment 1. The project was abut down 1998 due to maintenance costs and the price of electric power revenue and restarted In 2004. The City of Port Angeles announced its Intention to restart the project in October 2000 and notified FERC and other federal and state agencies at that time. 2. The lower Elwha Klallam Tube, Ecology, and the Washington State Departr,tent of Fish and Wildlife (WDFW) conducted additional consultation and studies to increase flows during all months and to protect salmoaid habitat, prior to restarting the project. 3. The Licensee evaluated the project for both temperature and dissolved gas, and the project did not appear to violate or have potential to violate the criteria for these parameters. Morse Creek flows north from the Olympic Mountain foothills and the bypass reach is well shaded which keeps the temperature low. 4. The agreed instream flows set forth below increases flows to protect habitat for Chinook Salmon and other sabnonids in the lower reach, and for bug trout and other resident trout above and below natural obstructions. The bypass reach between the diversion dam and the powerhouse is approximately 3.0 miles long. A waterfall, considered impassable to anadromous salmon, is located at approximately river mile 4.9, resulting in a 0.7 mile anadromous reach affected by the hydropower diversion. To protect the resident trout populations in the bypass reach as well as anadromous fish potentially using the 0.7 -mile lower section, this certification stipulates the minimum flows that the City of Port Angeles must meet. These flows are shown in Table I, section 4.0. 5. These flows were proposed and agreed to by the Ecology, WDFW, the Lower Elwha lUallam Tribe and the City of Port Angeles. 6. The City operator determines the water level at the diversion weir using a sonic sensor. The actual flow must be udapreted by the operator from a chart based on gauged flows. The operator mast adjust the turbine load to meet the minimum flow requirement and to control ramping rates in the reach below the tailrace. 3.0 General Conditions and Requirements 1) In the event of a conflict between the conditions and requirements of this amendment and those of the prior certification, issued on August 8, 1985, the conditions and requirement of this amendment shall prevail, unless Ecology provides otherwise by written order. 2) The project shall comply with all water quality standards approved by the En . ,. , .mat Protection Agency (currently codified in ch. 173 -201A WAC), ground water quality standards (currently codified in ch. 173 -200 WAC), and sediment quality standards (currently codified in ch. 173 -204 WAC) and other appropriate requirements of state law. Project No. 6461 -025 - 11 3) In the event of changes or amendments to the !sate water quality, ground water quality, or sediment standards, or changes in or amendments to the state Water Pollution Control Act (RCW 90.48), or changes in or amendments to the Clean !Water Act, such provisions, standards, criteria, or requirements shall apply to this project end any attendant agreements, orders or permits. Ecology will notify the Licensee through an Administrative Order of any such changes or amendments applicable to its project 4) Discharge of any solid or liquid waste to the waters of the state of Washington without prior 5) The Licensee shall obtain Ecology review and approval before undertaking any change to the project or project operations that might violate ,water quality or affect compliance with any applicable water quality standard (including designated uses) or other appropriate requirement of state law. 6) This Certification -Order does not exempt the Licinsee from compliance with other statutes and codes administered by federal, state, and local agerthies. 7) A Hydraulic Project Approval (HPA) (under 77.55 IRCW) shall be acquired from the WDFW prior 8) Ecology retains the right, by further Order, to modify schedules or deadlines provided under this 9) Ecology retains the right by Administrative Order to require additional monitoring wadies or measures if it determines them is likelihood that violations of water quality standards or other appropriate requirements of state law have ace or may occur, or insufficient information exists to make such determination. approval from Ecology is prohibited. to any work in waters of the Sate. Order or provisions it incorporates. 10) This order is based on the currently available data and analysis for different parameters of concern. Ecology specifically reserves the right to make further modifications to this order based upon future water quality findings or allocations of 'pollutant Toad. 11) Ecology reserves the right to amend this Order if it determines that the provisions hereof are no longer adequate to provide reasonable assurance of compliance with applicable water quality standards or other appropriate requirements of Stale law. Any such amended Order shall take effect immediately upon issuance, unless otherwise provided in the amended Certification -Order, and may be appealed to the Pollution Control Hearings Board (PCHB) under ch. 43.218 RCW. 12) Ecology reserves the right to issue orders, assess or seek penalties, and to initiate legal actions in any court or forum of competent jurisdiction for the purposes of enforcing the requirements of this Order. 13) The conditions of this Order shall not be construed Ito prevent or prohibit the Licensee from either voluntarily or in response to legal requirements imposed by a court, the FERC, or any other body with competent jurisdiction. taking actions which will provide a greater level of protection, mitigation, or enhancement of water quality or of existing or designated uses. 14) Copies of this Order and associated permits, licenses, approvals and other documents shall be kept on the Project site and made readily available for 'reference by the Licensee, its contractors and consultants, and by Ecology. 15) The Licensee shall allow Ecology access to inspect the project and project records required by this Order for the purpose of monitoring compliance with its conditions. Access shall occur after reasonable notice, except in emergency circumstances. Project No. 6461 -025 - 12 - 16) The L: .. __ shall, upon request by Ecology, fully respond to all reasonable requests for materials to assist Ecology in making determinations under this Order and any resulting rulemaking or other process. 17) Any work that Is out of compliance with the provisions of this Order, or conditions that result in distressed, dying or dead fish, or any discharge of oil, fuel, or chemicals into state waters, or onto land with a potential for any into state waters, or violation of turbidity criteria is prohibited. if these conditions occur, the Licensee must immediately take the following actions: a) Cease operations at the location of the violation to the extent such operations may reasonably be causing or contributing to the problem. b) Assess the cause of the water quality problem and take appropriate measures to correct the problem and/or prevent further environmental damage. c) Notify Ecology of the failure to comply. Oil or chemical spill events shall be reported immediately to Ecology's 24 -Hour Spill Response Team at (360) 407 .6300 within 24 hours. Other non - compliance events shall be reported to Ecology's Federal Permit Manager at (800) 424 -8802. d) Submit a detailed written report to Ecology within five (5) days that describes the nature of the event, corrective action taken and/or planned, steps to be taken to prevent a recurrence„ results of any samples taken, and any other pertinent information. e) Observed violations at the project shall be highlighted an annual monitoring report due by November 15 of each year. 18) The project operation must meet the temperature requirements for supplemental spawning and incubation criteria listed in WAC 173-201A-200 (Salmon and Trout Spawning) for August 1 through Jone 15, which is a maximum temperature of 13°C. For the real of the year the project must meet a maximum temperature of 16`C, and for all odter parameters throughout the year, the project must menu the conditions listed in WAC 173 -201A -200 (Core Summer Salmonid Habitat). Compliance with these requiranents does not relieve the Licensee from responsibility to maintain continuous compliance with the hems and conditions of this Cehtifieation -Order or the resulting liability from failure to comply. 4.0 Conditions relating to flow and ramping. Licensee must discharge at least the following continuous minimum instrcam flows from the Morse Creek Project diversion weir, for the protection of aquatic sources in Morse Creek: Table 1: Minimum lnstream Flows measured at the diversion dam. Month { Hydro Operadoeal linstream Flow (c6) 1 January February 1 -14 1 February 15 -29 March April 1 48 48 50 50 55 Project No. 6461 -025 ' • 13 - Mav June July 1 -15 July 16-31 Auaust 1 -15 Monist 15 -31 September October 1 -15 October 16 -31 November December 61 61 61 50 So 58 No Generation 69 60 48 48 The minimum flow may be temporarily modified if required by operating emergencies beyond the control of the Licensee, or for short periods upon mutual a .._..[ between the Licensee and Ecology Ecology reserves the authority to require modification of the minimum flows and ramping rates if new information or analysis shows that the flows are inadequate to protect designated instream uses. The licensee must not exceed the following ramping rates in the anadromous portion of Morse Creek: Season 1 Day_lie.ht Rates' Night Rate February 16 to 15' 1 No Ramping 12 inches/hour June 16 to October 31 I 1 inch/hour 1 I inch/hour November I to February 15 12 inches/ hour 12 inches/hour ' Salmon fry are present t Steelhead fry are present Daylight is defined as one hour before sunrise to one hour after sunset 5.0 Conditions relating to Construction Projects, Miscellaneous Discharges, and Habitat Modifications The following applies to all in -water or over -water work related to the project that can impact surface- water or ground -water quality. This includes, but is not limited to, construction, operation, and maintenance of fish screens, fish collection structures, generation, turbines, penstocks, the tailrace, transportation facilities, portable toilets, transmission corridors, structures, and staging areas. This also includes emergencies for all activities related to project operation. 1. If water quality excursions are predicted as being unavoidable during construction or maintenance of a project, the Licensee must apply for a short -tern modification in writing to Ecology at least three months prior to project initiation. If any project has a long -term impact on a regulated water quality parameter, characterization monitoring must be performed for the Impacted parameter(s), Project No. 6461 -025 -14 - and a monitoring plan must be outlined in the Water Quality Protection Plan discussed below. This may require additional management practices to minimize impacts over the license period. 2. A Water Quality Protection Plan (WQPP) must be prepared, and followed, for all project - related work that is in or near water that has the potential to impact surface, and/or groundwater quality. The WQPP must include control measures to prevent contaminants from entering surface water and ground water, and must include, but not be limited to, the following elements: a) A Stormwater Pollution Prevention Plan (SWPPP) must specify the Bast Management Practices (BMPs) and other control to prevent contaminants entering the project's surface water and groundwater. The SWPPP shall address the pollution control measures for the Licensee's activities that could lead to the discharge of stormwater or other contaminated water from upland areas. The SWPPP must also specify the management of chemicals, hazardous materials and petroleum (spill prevention and containment procedures), including refueling procedures, the measures to take in the event of a spill, and reporting and training requirements. b) Am In- Water -Work Protection Plan (IW WPP) must be consistent with the SWPPP and must specifically address the BMPs and other control measures for the Licensee activities that require work within surface waters. Turbidity and dissolved oxygen must be monitored upstream and downstream of the location where in -water construction occurs. Samples must be taken at least once each day during construction in or adjacent to any water bodies within the project area that may be affected by the constriction. The I W W PP must include all water quality protection measures consistent with a Hydraulic Project Approval (IIPA) for the project c) The WQPP must include procedures for monitoring water quality, actions to implement the plan if a water quality excursion occurs, and procedures for reporting any water quality violations to Ecology. The WQPP must include all water quality protection measures consistent with an HPA for the project The Licensee must submit the WQPP to Ecology for review and approval at least three months prior to project initiation, and the on -site construction manager must possess a copy of the WQPP, and have it available for review by Ecology staff, whenever construction work is under way. d) When a construction project meets the coverage requirements of the National Pollution Discharge Elimination System (NPDES) permit and State Waste Discharge General Permit for stormwater discharges associated with construction activity, the Licensee must either, at Ecology's discretion, apply for this permit and comply with the teens and conditions of the permit or apply for and comply with the terms of an individual NPDES permit. 3. Best Management Practices a) Work in or near the diversion dam, water behind the dam, the river, or any wetlands must include all reasonable measures to minimize the impacts of construction activity on waters of the state. Water quality constituents of particular concern are turbidity, suspended sediment, settleable solids, oil and grease, and piL These measures include the use of BMPs to control erosion and sedimentation, proper use of chemicals, oil and chemical spill prevention and control, clean -up of surplus construction supplies, and other solid wastes. Project No. 6461 -025 -15 - b) During construction, all necessary measures must be taken to minimize the disturbance of existing riparian, wetland or upland vegetation. c) All construction debris must be property disposed of on land so that the debris cannot enter a waterway or cause water quality degradation to any state waters. Retention atlas or swales must be used to prevent discharging of water from construction placement areas. d) The Licensee must ensure that any till materials that are placed for proposed habitat improvement in any waters of the state do not contain toxic materials in toxic amounts. 6.0 Conditions relating to Oil Spill Prevention and Control 1) The Licensee must not allow discharge of oil, fuel, or chemicals into waters of the state, or onto land with a potential for entry into waters of the state as prohibited by Ch. 90.56 RCW and Ch. 90.48 RCW. 2) The Licensee must contain and ..., . . from ilk water, visible floating oils released from construction or project operation. The Licensee must take the following actions: a) In the event of a discharge of oil, fuel or chemicals into state waters, or onto land with a potential for entry into state waters, immediately begin and complete containment and clean- up efforts. Clean -up will take precedence over normal work and must include proper disposal of any spilled material and used clean-up materials. b) Do not use emulsifiers or dispersants in waters of the state without prior approval from Ecology, Southwest Regional Office. c) Within three months of receiving the amended license from FERC, establish an Ecology - approved on-site spill cleanup material inventory. Maintain this on -site inventory and a complete inventory list d) Project Operators must be familiar with and trained in the use of oil spill cleanup materials. In the event of an oil spill, properly dispose of u6ed/contaminated materials and oil and as soon as possible restock new supplies. Include records of proper disposal in the oil consumption records and keep copies of disposal records of contaminated cleanup supplies on -site for inspection. e) Keep spill prevention containment and control (SPCC) Plans as required and historical spill records on -site. Provide these to Ecology immediately upon request. I) Identify and map floor drains. Post these maps at the Project in a conspicuous location for use by Operators and other personnel in the event of an oil spill. Seal floor drains that are no Ionger needed. 3) Transformers a) Transformer containment area surfaces must be impervious. Conduct periodic inspections and re- surface areas, fill cracks, caulk metal plata footings or otherwise ensure that containment areas will contain all spill fluids b) Obtain prior approval from Ecology before breaching containment areas for reasons other than containment area maintenance. c) Conform to industry standards for protecting water quality and preventing and containing spills when transporting transformers and transformer oil. Project No. 6461 -025 -16 - d) Conduct weekly Inspections of transformer containment area Inctuding an inspection of the drains for freeze -up conditions. Remove any observed rainwater pooling in the containment areas. 4) Oil, fuel and chemical storage containers, containment areas, and conveyance systems a) Provide proper containment around each storage container (including transformers and emergency generator fuel supplies) or around a combination of storage containers as appropriate. b) Regularly check all fuel hoses, oil'drums, oil or fuel transthr valves and finings, etc, for drips and leaks. Maintain and properly store them to prevent spills into state waters. c) Do not refuel equipment within 50 feet of rivers, creeks, wetlands, or otter waters of the state. d) The Licensee must implement the BMPs for spills of oil or hoardous substances from the Department of Ecology's Storrtwater Management Manual for Western Washington (SWMM) or equivalent manual. - e) Contain wash water containing oils, grease, or other hazardous materials resetting from wash - down of equipment or working areas for proper disposal, and do not discharge this water into state waters. 7.0 Order Any person who fails to comply with any provision of this Order No. 6106 shall be liable under the Clean Water Act for a penalty of up to twenty (20) thousand dollars per day and under the state Water Control Act, for a penalty of up to ten (10) thousand dollars per day per violation or such other amount as may be authorized under state law as exists now or may be amended during the term of the license. IN THE MATTER OF GRANTING A WATER QUALITY CERTIFICATION TO City of Port Angeles for Morse Creek Hydropower Project with Chapter 90.48 RCW and the Rules and Regulations of the Department of Ecology To: Mr. Larry Dunbar City of Port Angeles 321 East Fifth Street PO Box 1150 Port Angeles, WA 98362 -0217 STATE OF WASHINGTON DEPARTMENT OF ECOLOGY ORDER No. 6106 This order amends the Clean Water Act 401 Certification issued to the Port Angeles Morse Creek Hydroelectric Project (FERC No. 6461) on August 8, 1985, for operation of the Morse Creek Hydroelectric Project. This order is issued under the provisions of Chapter 90.48 RCW and Chapter 1.73 - 20I A WAC. Through this order the prior certification is hereby amended and replaced by this certification. In the event of a conflict with the requirements of this amendment and the prior certification, the requirements of the amendment shall prevail, unless the Department of Ecology (Ecology) provides otherwise by written order. 1.0 Nature of Project The Port Angeles Morse Creek project is a small 0.465 MW hydroelectric facility located on Morse Creek, which drains north to the Strait of Juan de Fuca and is approximately. 1.5 miles east of Port Angeles, Washington. The Federal Energy Regulatory Commission (FERC) issued a license for the project in 1985. The project is owned by, managed and licensed to the City of Port Angeles, Washington. Major project features include: (a) a diversion dam (10 -foot high by 25 -foot wide) located at river mile (RM) 7.2; (b) an intake structure with fixed fish screens and trash rack; (c) a 750 -foot long concrete tunnel, an 11,400 -foot long buried 24 -inch diameter pipeline, and a 1,500 -foot long high pressure penstock leading to the powerhouse at RM 4.3; and (d) a single Pelton wheel turbine with a generating capacity of 465 kilowatt (kW). A natural falls at RM 4.9 divides the watershed, posing an impassable barrier to anadromous fish. A resident population of rainbow trout occurs above the falls. The City operates the project in a run -of -river mode and it has no useable storage capacity. Consequently, the project can only operate when the natural river flow is significantly greater than the required bypass reach minimum flow. 2.0 Findings Project background information related to the certification amendment 1. The project was shut down 1998 due to maintenance costs and the price of electric power revenue and restarted in 2004. The City of Port Angeles announced its intention to restart the project in October 2000 and notified FERC and other federal and state agencies at that time. 2. The lower Elwha Klallam Tribe, Ecology, and the Washington State Department of Fish and Wildlife (WDFW) conducted additional consultation and studies to increase flows during all months and to protect salmonid habitat, prior to restarting the project. 3. The Licensee evaluated the project for both temperature and dissolved gas, and the project did not appear to violate or have potential to violate the criteria for these parameters. Morse Creek flows north from the Olympic Mountain foothills and the bypass reach is well shaded which keeps the temperature low. 4. The agreed instream flows set forth below increases flows to protect habitat for Chinook Salmon and other salmonids in the lower reach, and for bull trout and other resident trout above and below natural obstructions. The bypass reach between the diversion dam and the powerhouse is approximately 3.0 miles long. A waterfall, considered impassable to anadromous salmon, is located at approximately river'mile 4.9, resulting in a 0.7 mile anadromous reach affected by the hydropower diversion. To protect the resident trout populations in the bypass reach as well as anadromous fish potentially using the 0.7 -mile lower section, this certification stipulates the minimum flows that the City of Port Angeles must meet. These flows are shown in Table 1, section 4.0. 5. These flows were proposed and agreed to by the Ecology, WDFW, the Lower Elwha Klallam Tribe and the City of Port Angeles. 6. The City operator determines the water level at the diversion weir using a sonic sensor. The actual flow must be interpreted by the operator from a chart based on gauged flows. The operator must adjust the turbine load to meet the minimum flow requirement and to control ramping rates in the reach below the tailrace. 3.0 General Conditions and Requirements 1) In the event of a conflict between the conditions and requirements of this amendment and those of the prior certification, issued on August 8, 1985, the conditions and requirements of this amendment shall prevail, unless Ecology provides otherwise by written order. 2) - The project shall comply with all water quality standards approved by the Environmental — '" — Protection Agency (currently codified in ch. 173 -201A WAC), ground water quality standards (currently codified in ch. 173 -200 WAC), and sediment quality standards (currently codified in ch. 173 -204 WAC) and other appropriate requirements of state law. 3) In the event of changes or amendments to the state water quality, ground water quality, or sediment standards, or changes in or amendments to the state Water Pollution Control Act (RCW 90.48), or changes in or amendments to the Clean Water Act, such provisions, standards, criteria, or requirements shall apply to this project and any attendant agreements, orders or permits. Ecology will notify the Licensee through an Administrative Order of any such changes or amendments applicable to its project. 4) Discharge of any solid or Liquid waste to the waters of the state of Washington without prior approval from Ecology is prohibited. 5) The Licensee shall obtain Ecology review and approval before undertaking any change to the project or project operations that might violate water quality or affect compliance with any applicable water quality standard (including designated uses) or other appropriate requirement of state law. 6) This Certification -Order does not exempt the Licensee from compliance with other statutes and codes administered by federal, state, and local agencies. 7) A Hydraulic Project Approval (HPA) (under 77.55 RCW) shall be acquired from the WDFW prior to any work in waters of the State. 8) Ecology retains the right, by further Order, to modify schedules �r deadlines provided under this Order or provisions it incorporates. 9) Ecology retains the right by Administrative Order to require additional monitoring studies or measures if it determines there is likelihood that violations of water quality standards or other appropriate requirements of state law have occurred or may occur, or insufficient information exists to make such determination. 10) This order is based on the currently available data and analysis for different parameters of concerns. Ecology specifically reserves the right to make further modifications to this order based upon future water quality findings or allocations of pollutant load. 11) Ecology reserves the right to amend this Order if it determines that the provisions hereof are no Ionger adequate to provide reasonable assurance of compliance with applicable water quality standards or other appropriate requirements of State law. Any such amended Order shall take effect immediately upon issuance, unless otherwise provided in the amended Certification- Order, and may be appealed to the Pollution Control Hearings Board (PCHB) under ch. 43.21B RCW. 12) Ecology reserves the right to issue orders, assess or seek penalties, and to initiate legal actions in any court or forum of competent jurisdiction for the purposes of enforcing the requirements of this Order. 13) The conditions of this Order shall not be construed to prevent or prohibit the Licensee from either voluntarily or in response to legal requirements imposed by a court, the FERC, or any other body with competent jurisdiction, taking actions which will provide a greater level of protection, mitigation, or enhancement of water quality or of existing or designated uses. 14) Copies of this Order and associated permits, licenses, approvals and other documents shall be kept on the Project site and made readily available for reference by the Licensee, its contractors and consultants, and by Ecology. 15) The Licensee shall allow Ecology access to inspect the project and project records required by this Order for the purpose of monitoring compliance with its conditions. Access shall occur after reasonable notice, except in emergency circumstances. 16) The Licensee shall, upon request by Ecology, fully respond to all reasonable requests for materials to assist Ecology in making determinations under this Order and any resulting rulemaking or other process. 17) Any work that is out of compliance with the provisions of this Order, or conditions that result in distressed, dying or dead fish, or any discharge of oil, fuel, or chemicals into state waters, or onto land with a potential for entry into state waters, or violation of turbidity criteria is prohibited. If these conditions occur, the Licensee must immediately take the following actions: . a) Cease operations at the location of the violation to the extent such operations may reasonably be causing or contributing to the problem. b) Assess the cause of the water quality problem and take appropriate measures to correct the problem and/or prevent further environmental damage. c) Notify Ecology of the failure to comply. Oil or chemical spill events shall be reported immediately to Ecology's 24 -Hour Spill Response Team at (360) 407 -6300 within 24 hours. Other non - compliance events shall be reported to Ecology's Federal Permit Manager at (800) 424 -8802. d) Submit a detailed written report to Ecology within five (5) days that describes the nature of the event, corrective action taken and /or planned, steps to be taken to prevent a recurrence, results of any samples taken, and any other pertinent information. e) Observed violations at the project shall be highlighted an annual monitoring report due by November 15 of each year. 18) The project operation must meet the temperature requirements for supplemental spawning and incubation criteria listed in WAC 173 -201A -200 (Salmon and Trout Spawning) for August 1 through June 15, which is a maximum temperature of 13 °C. For the rest of the year the project must meet a maximum temperature of 16 °C, and for all other parameters throughout the year, the project must meet the conditions listed in WAC 173 -201A -200 (Core Summer Salmonid Habitat). Compliance with these requirements does not relieve the Licensee from responsibility to maintain continuous compliance with the terms and conditions of this Certification -Order or the resulting liability from failure to comply. 4.0 Conditions relating to flow and ramping. Licensee must discharge at least the following continuous minimum instream flows from the Morse Creek Project diversion weir, for the protection of aquatic resources in Morse Creek: January February 1 -14 February 15 -29 March April May June July 1 -15 July 16 -31 August 1 -15 August 15 -31 September October 1 -15 Table 1: Minimum Instream Flows measured at the diversion dam. Month Hydro Operational Instream Flow (cfs) 48 48 50 50 55 61 61 61 50 50 58 No Generation 69 October [ 6 -3 I November December 60 48 48 The minimum flow may be temporarily modified if required by operating emergencies beyond the control of the Licensee, or for short periods upon mutual agreement between the Licensee and Ecology. Ecology reserves the authority to require modification of the minimum flows and ramping rates if new information or analysis shows that the flows are inadequate to protect designated instream uses. The licensee must not exceed the following ramping rates in the anadromous portion of Morse Creek: Season Daylight Rates' February 16 to 15 1 No Ramping June 16 to October 31 1 1 inch/hour • November 1 to February 15 2 inches/ hour ` Salmon fry are present 2 Steelhead fry are present 3 Daylight is defined as one hour before sunrise to 1 Night Rate 2 inches/hour 1 1 inch/hour 1 2 inches/hour one hour after sunset 5.0 Conditions relating to Construction Projects, Miscellaneous Discharges, and Habitat Modifications The following applies to all in -water or over -water work related to the project that can impact surface - water or ground -water quality. This includes, but is not limited to, construction, operation, and maintenance of fish screens, fish collection structures, generation, turbines, penstocks, the tailrace, transportation facilities, portable toilets, transmission corridors, structures, and staging areas. This also includes emergencies for all activities related to project operation. 1. If water quality excursions are predicted as being unavoidable during construction or maintenance of a project, the Licensee must apply for a short-term modification in writing to Ecology at least three months prior to project initiation. If any project has a long -term impact on a regulated water quality parameter, characterization monitoring must be performed for the impacted parameter(s), and a monitoring plan must be outlined in the Water Quality Protection Plan discussed below. This may require additional management practices to minimize impacts over the license period. 2. A Water Quality Protection Plan (WQPP) must be prepared, and followed, for all project - related work that is in or near water that has the potential to impact surface, and /or groundwater quality. The WQPP must include control measures to prevent contaminants from entering surface water and ground water, and must include, but not be limited to, the following elements: a) A Stormwater Pollution Prevention Plan (SWPPP) must specify the Best Management Practices (BMPs) and other control measures to prevent contaminants entering the project's surface water and groundwater. The SWPPP shall address the pollution control measures for the Licensee's activities that could lead to the discharge of stormwater or other contaminated water from upland areas. The SWPPP must also specify the management of chemicals, hazardous materials and petroleum (spill prevention and containment procedures), including refueling procedures, the measures to take in the event of a spill, and reporting and training requirements. b) An In- Water -Work Protection Plan ( IWWPP) must be consistent with the SWPPP and must specifically address the BMPs and other control measures for the Licensee activities that require work within surface waters. Turbidity and dissolved oxygen must be monitored upstream and downstream of the Location where in -water construction occurs. Samples must be taken at least once each day during construction in or adjacent to any water bodies within the project area that may be affected by the construction. The IWWPP must include all water quality protection measures consistent with a Hydraulic Project Approval (HPA) for the project. c) The WQPP must include procedures for monitoring water quality, actions to implement the plan if a water quality excursion occurs, and procedures for reporting any water quality violations to Ecology. The WQPP must include all water quality protection measures consistent with an HPA for the project. The Licensee must submit the WQPP to Ecology for review and approval at least three months prior to project initiation, and the on -site construction manager must possess a copy of the WQPP, and have it available for review by Ecology staff, whenever construction work is under way. d) When a construction project meets the coverage requirements of the National Pollution Discharge Elimination System (NPDES) permit and State Waste Discharge General Permit for stormwater discharges associated with construction activity, the Licensee must either, at Ecology's discretion, apply for this permit and comply with the terms and conditions of the permit or apply for and comply with the terms of an individual NPDES permit. 3. Best Management Practices a) Work in or near the diversion dam, water behind the dam, the river, or any wetlands must include all reasonable measures to minimize the impacts of construction activity on waters of the state. Water quality constituents of particular concern are turbidity, suspended sediment, settleable solids, oil and grease, and pH. These measures include the use of BMPs to control erosion and sedimentation, proper use of chemicals, oil and chemical spill prevention and control, clean-up of surplus construction supplies, and other solid wastes. b) During construction, all necessary measures must be taken to minimize the disturbance of existing riparian, wetland or upland vegetation. c) All construction debris must be properly disposed of on land so that the debris cannot enter a waterway or cause water quality degradation to any state waters. Retention areas or swales must be used to prevent discharging of water from construction placement areas. d) The Licensee must ensure that any fill materials that are placed for proposed habitat improvement in any waters of the state do not contain toxic materials in toxic amounts._ 6.0 Conditions relating to Oil Spill Prevention and Control 1) The Licensee must not allow discharge of oil, fuel, or chemicals into waters of the state, or onto land with a potential for entry into waters of the state as prohibited by Ch. 90.56 RCW and Ch. 90.48 RCW. 2) The Licensee must contain and remove from the water, visible floating oils released from construction or project operation. The Licensee must take the following actions: a) In the event of a discharge of oil, fuel or chemicals into state waters, or onto land with a potential for entry into state waters, immediately begin and complete containment and clean- up efforts. Clean -up will take precedence over normal work and must include proper disposal of any spilled material and used clean -up materials. b) Do not use emulsifiers or dispersants in waters of the state without prior approval from Ecology, Southwest Regional Office. c) Within three months of receiving the amended license from FERC, establish an Ecology - approved on -site spill cleanup material inventory. Maintain this on -site inventory and a complete inventory list. d) Project Operators must be familiar with and trained in the use of oil spill cleanup materials. In the event of an oil spill, properly dispose of used/contaminated materials and oil and as soon as possible restock new supplies. Include records of proper disposal in the oil consumption records and keep copies of disposal records of contaminated cleanup supplies on -site for inspection. e) Keep spill prevention containment and control (SPCC) Plans as required and historical spill records on -site. Provide these to Ecology immediately upon request. f) Identify and map floor drains. Post these maps at the Project in a conspicuous location for use by Operators and other personnel in the event of an oil spill. Seal floor drains that are no longer needed. 3) Transformers a) Transformer containment area surfaces must be impervious. Conduct periodic inspections and re- surface areas, fill cracks, caulk metal plate footings or otherwise ensure that containment areas will contain all spill fluids. b) Obtain prior approval from Ecology before breaching containment areas for reasons other than containment area maintenance. c) Conform to industry standards for protecting water quality and preventing and containing spills when transporting transformers and transformer oil. d) Conduct weekly inspections of transformer containment area including an inspection of the drains for freeze -up conditions. Remove any observed rainwater pooling in the containment areas. 4) Oil, fuel and chemical storage containers, containment areas, and conveyance systems a) Provide proper containment around each storage container (including transformers and emergency generator fuel supplies) or around a combination of storage containers as appropriate. b) Regularly check all fuel hoses, oil drums, oil or fuel transfer valves and fittings, etc, for drips and leaks. Maintain and properly store them to prevent spills into state waters. c) Do not refuel equipment within 50 feet of rivers, creeks, wetlands, or other waters of the state. d) The Licensee must implement the BMPs for spills of oil or hazardous substances from the Department of Ecology's Stormwater Management Manual for Western Washington (SWMM ) or equivalent manual. e) Contain wash water containing oils, grease, or other hazardous materials resulting from wash - down of equipment or working areas for proper disposal, and do not discharge this water into state waters. 7.0 Order Any person who fails to comply with any provision of this Order No. 6106 shall be liable under the Clean Water Act for a penalty of up to twenty (20) thousand dollars per day and under the state Water Control Act, for a penalty of up to ten (10) thousand dollars per day per violation or such other amount as may be authorized under state law as exists now or may be amended during the term of the license. You have the right to appeal this Order to the Pollution Control Hearings Board. Pursuant to chapter 43.21 B RCW, your appeal must be filed with the Pollution Control Hearings Board, and served on the Department of Ecology, within thirty (30) days of the date of your receipt of this document. To appeal this order, your notice of appeal must contain a copy of the Ecology Order you are appealing. You must file your appeal with the Pollution Control Hearings Board. Mail your appeal to: The Pollution Control Hearings Board P.O. Box 40903 Olympia WA 98504 -0903 OR Deliver your appeal in person to: The Pollution Control Hearings Board 4224 6t° Ave. SE Rowe Six, Bldg. 2 Lacey, WA, 98504 -0903 Your appeal must also be served on The Department of Ecology Appeals Coordinator P.O. Box 47608 Olympia, WA 98504 -7608 In addition, please send a copy of your appeal to: Eric Schlorff SWRO Water Quality Program PO Box 47775 Olympia, WA 98504 -7775 For additional information: Environmental Hearings Office Website: httn: / /www.eho.wa.eov Your appeal alone will not stay the effectiveness of this Order. Stay requests must be submitted in accordance with RCW 43.21B. 320. These_procedures are_consistent with_Ch._4321B_RCW._ DAT D December 17. 2008, at Olympia, Washington "" �i 1 Garui Schrieve, P.E. Water Quality Section Manager Southwest Regional Office Water Quality Program