CLARK FORK HYDROELECTRIC PROJECT LIHI APPLICATION FOR CERTIFICATION INTRODUCTION

Transcription

1 CLARK FORK HYDROELECTRIC PROJECT LIHI APPLICATION FOR CERTIFICATION INTRODUCTION The Clark Fork Project consists of the Cabinet Gorge (FERC No. 2058) and Noxon Rapids (previously FERC No. 2075) developments. The Cabinet Gorge and the Noxon Rapids developments abut one another on the Clark Fork River in Bonner County, northern Idaho and Sanders County, in northwest Montana, respectively. The Cabinet Gorge dam is located at river mile 150 in the state of Idaho and the Noxon Rapids dam is located at river mile 170 in the state of Montana. The new Clark Fork Project License (FERC No. 2058), including both the Noxon Rapids and Cabinet Gorge hydroelectric developments, was issued via FERC Order February 23, 2000 (Attachment 1), and became effective on March 1, The new license is the result of the successful efforts of representatives from nearly 40 organizations, who worked together for several years to create the Clark Fork Settlement Agreement. The Settlement Agreement (Attachment 2) contains 26 protection, mitigation and enhancement (PM&E) measures addressing impacts of continued operation of the project. The agreement also adopts the term "Living License, a concept that promotes ongoing problem solving through adaptive management. Avista immediately began implementation of the PM&E measures in March of 1999, a full two years before expiration of the existing licenses. The Federal Energy Regulatory Commission (FERC) followed up in an unprecedented action with the issuance of a new license one year before the existing licenses expired. Just two years into implementation, the Clark Fork Project achieved monumental tasks including: Transporting bull trout over Cabinet Gorge Dam for the first time in 50 years, in an attempt to reestablish historic migration routes. Restoring over a mile of Twin Creek (an important bull trout spawning stream) to its historic channel through a multi-party effort lead by Trout Unlimited and partially funded by Avista. Purchase of 871 acres of wetland and riparian habitat along Bull River, the largest tributary to Cabinet Gorge Reservoir. These purchases will allow preservation of existing wetland and riparian habitat. Obtaining more than $300,000 in grant money to leverage existing funds. Receipt of the National Hydropower Association's Outstanding Stewardship of America's Waters Awards award in 2000, 2001, 2002, 2003, 2004, 2005, and Significant improvements to recreational facilities such as Pilgrim Creek Park. The collaborative spirit that was instrumental in the relicensing process continues on in the implementation efforts. The Clark Fork Management Committee (comprised of the signatories to the Settlement Agreement) continues to meet twice annually to approve all implementation activities and monitor the success of implementation efforts. If resource goals are not met, the Management Committee has the ability to make changes in the direction of the program. Terrestrial and water resources advisory committees advise the Management Committee on technical issues. The Cultural Resource Management Group advises the Management Committee on projects that have the potential to impact cultural and historic resources associated with the project. Annual reports, and implementation PM&E mitigation plans for the following year, are prepared and filed with the FERC for approval. Attachment 3 includes the FERC Order approving the 2008 Annual Report and 2009 Implementation Plans. This collaborative process ensures the continued operation of the project with appropriate longterm environmental protection measures to meet diverse objectives for maintaining a balance on nonpower and power values in the Clark Fork Basin.

2 E. LOW IMPACT HYDROPOWER QUESTIONNAIRE Low Impact Hydropower Institute 34 Providence Street Portland, ME Tel. (207) Fax (206) LOW IMPACT HYDROPOWER QUESTIONNAIRE Background Information Applicant Answer 1) Name of the Facility. Clark Fork Project (FERC No. 2058): Cabinet Gorge Project (FERC No 2058) and Noxon Rapids Project (FERC No 2075) were combined under a single license and renamed the Clark Fork Project using FERC No ) Applicant s name, contact information and Tim Swant relationship to the Facility. If the Applicant is Clark Fork License Manager not the Facility owner/operator, also provide 94 Avista Power Road the name and contact information for the PO Box 1469 Facility owner and operator. Noxon, MT (406) tim.swant@avistacorp.com 3) Location of Facility by river and state. Clark Fork River, Idaho and Montana 4) Installed capacity. Clark For Project (total MW): Noxon Rapids Development: 486 MW Cabinet Gorge Development: MW 5) Average annual generation. Noxon Rapids: 1,725 GWh Cabinet Gorge: 1,111 GWh Clark Fork Project Total: 2,836 GWh 6) Regulatory status. FERC-licensed via a collaborative settlement agreement. The Order issuing the New License and associated Settlement Agreement was issued for the Clark Fork Project on February 23, 2000 (90 FERC 61,167). 1

3 7) Reservoir volume and surface area measured at the high water mark in an average water year. Noxon Rapids Development 400,000 acre-feet 7,940 surface acres Cabinet Gorge Development 105,000 acre-feet 3,200 surface acres 8) Area occupied by non-reservoir facilities Not Required (e.g., dam, penstocks, powerhouse). 9) Number of acres inundated by the Facility. Not Required 10) Number of acres contained in a 200-foot zone extending around entire impoundment. 11) Please attach a list of contacts in the relevant Resource Agencies and in non-governmental organizations that have been involved in recommending conditions for your Facility. 12) Please attach a description of the Facility, its mode of operation (i.e., peaking/run of river) and a map of the Facility. 3, acres (includes both Cabinet Gorge and Noxon Rapids reservoirs) See Attachment 4 The Clark Fork Project includes the Noxon Rapids and Cabinet Gorge developments. Noxon Rapids dam is located at river mile 170 in northwest Montana and Cabinet Gorge dam is located at river mile 150 in northern Idaho. The two developments abut each other over a distance of 58 miles on the Clark Fork River. A drop of 258 feet in elevation occurs between the uppermost end of the Noxon Reservoir and the Cabinet Gorge tailrace. Releases from Noxon Rapids refill the smaller, downstream Cabinet Gorge reservoir. The Noxon Rapids development consists of a powerhouse, concrete spillway, earthen dam, intake and a limited storage reservoir. Likewise, the Cabinet Gorge development includes a powerhouse, spillway, with an arch dam and intake, and limited storage reservoir. The Noxon Rapids development has a hydraulic capacity of 51,430 cubic feet per second (cfs) and an authorized installed capacity of 486 megawatts (MW) using five Francis turbines. The Cabinet Gorge development has a hydraulic capacity of 36,000 cfs and an authorized installed capacity of 263 MW utilizing three fixed blade propeller turbines and one Kaplan turbine. Operated in tandem, both hydroelectric projects are peaking facilities used to help meet the daily, weekly, and seasonal peak electric needs. To help Avista serve its customer demand, some water in the Clark Fork River is stored in the Noxon and Cabinet Gorge reservoirs at night and released for generation at times of peak demand during the day. Noxon Reservoir is typically drafted on a weekly cycle, while Cabinet Gorge operations serve to re-regulate flow releases from Noxon Rapids, usually on a daily basis. Refer to Attachment 5 for further descriptions of project facilities and operations (Attachment 5-1), and for project map and boundary and design drawings (Attachment 5-2). 2

4 Questions for New Facilities Only: If the Facility you are applying for is new i.e., an existing dam that added or increased power generation capacity after August of 1998 please answer the following questions to determine eligibility for the program 13) When was the dam associated with the Facility completed? 14) When did the added or increased generation first generate electricity? If the added or increased generation is not yet operational, please answer question 18 as well. NEW = Increased Generation Capacity Noxon Rapids Development: completed in 1959 Cabinet Gorge Development: completed in 1952 Increased Authorized Generation Installed Capacity Date Operational Cabinet Gorge Unit 2? 72.2 MW April 2004 Cabinet Gorge Unit 3? 72.2 MW April 2001 Cabinet Gorge Unit 4? 59.4 MW April 2006 Noxon Rapids Unit 1? 99.0 MW May 2009 Additional increased generation is proposed at the Noxon Rapids development in the near future (refer to question 18). 15) Did the added or increased power generation capacity require or include any new dam or other diversion structure? 16) Did the added or increased capacity include or require a change in water flow through the facility that worsened conditions for fish, wildlife, or water quality (for example, did operations change from run-of-river to peaking)? 17) (a) Was the existing dam recommended for removal or decommissioning by resource agencies, or recommended for removal or decommissioning by a broad representation of interested persons and organizations in the local and/or regional community prior to the added or increased capacity? (b) If you answered yes to question 17 (a) NO NO NO 3

5 the Facility is not eligible for certification, unless you can show that the added or increased capacity resulted in specific measures to improve fish, wildlife, or water quality protection at the existing dam. If such measures were a result, please explain. 18) (a) If the increased or added generation is not yet operational, has the increased or added generation received regulatory authorization (e.g., approval by the Federal Energy Regulatory Commission)? If not, the facility is not eligible for consideration; and (b) Are there any pending appeals or litigation regarding that authorization? If so, the facility is not eligible for consideration. A. Flows PASS FAIL Applicant Answer 1) Is the Facility in Compliance with Resource Agency Recommendations issued after December 31, 1986 regarding flow conditions for fish and wildlife protection, mitigation and enhancement (including instream flows, ramping and peaking rate conditions, and seasonal and episodic instream flow variations) for both the reach below the tailrace and all bypass reaches? YES = Pass, go to B N/A = Go to A2 YES FERC Order dated 4/10/08, Amending License and Revising Annual Charges, included upgrades to Noxon Rapids Units 1-4 (Attachment 6). Unit 1 was upgraded in May Upgrades to Noxon Rapids Units 2-4 will be completed by May Upgrades to Units 2-4 will increase the total authorized capacity of the Clark Fork Project from MW to MW. NO YES The Clark Fork Project is in compliance with resource agency conditions issued after December 31, 1986 regarding flow conditions. The FERC License and 1999 Settlement Agreement included requirements for flow releases and water level control recommended by resource agencies (Attachments 1 and 2). The prior FERC license issued for the Cabinet Gorge and Noxon Rapids projects in 1951 and 1955, respectively, placed no limits on seasonal storage, minimum flows, or the weekly or daily peeking operations. At that time there were no instream flow requirements below Cabinet Gorge dam and Noxon Reservoir was seasonally drawn down or drafted to 36 feet below full pool and on three occasions, prior to 1985, it was drafted up to 54 feet. In the early 1970s, an agreement reached with Idaho Department of Fish and Game (IDFG) provided 3,000 cfs minimum flow below Cabinet Gorge Dam. In 1985, WWP (now Avista) voluntarily entered into an agreement with the Montana Department of Fish, Wildlife and Parks (MFWP) to limit the 4

6 extent of seasonal drafts to 10 feet at Noxon Rapids, except under emergency operation conditions. The voluntary operation limits at Noxon Rapids included: 4-feet maximum draft May 15 September feet maximum draft October 1 May 4 2-feet maximum daily net draft Year-round 5-feet maximum weekly net draft October 1 May 14 Cabinet Gorge typically is drafted up to seven feet within each week to capture Noxon releases for power generation. Starting in 1996, a number of studies were conducted to address flow conditions for fish and wildlife protection. Studies related to influences of project operations on limnological, water quality parameters, and aquatic habitat indicated that operations (peaking related to discharge and reservoir fluctuations) had little if any effect on nutrient or other water quality parameters. Evaluation of project operations on the effect on aquatic habitat associated fish resources and in particular the effects of water level, flow fluctuations, and minimum instream flows resulted in a program consisting of flow modification, as well as, enhancement in the side channel and implementation of a watershed restoration program (Attachment 2, Appendix T). Avista, in collaboration with the Clark Fork Relicensing Team and as agreed to in the 1999 Clark Fork Settlement Agreement (Attachment 2), increased the instantaneous minimum flow below the Cabinet Gorge Project from 3,000 cfs to 5,000 cfs. Combined with the accretion of approximately 800 cfs of spring flow below the project, the resultant 5,800 cfs provides more stable and suitable shoreline rearing areas for fish, principally fry, and enhanced macroinvertebrate production. Increasing the minimum flow below Cabinet Gorge Dam caused changes in the drawdown patterns in the reservoir: the overall draft limit on Cabinet Gorge Reservoir of 2,168 feet elevation (seven feet) remained the same, but the average weekly maximum draft changed from around 2.3 to 3.5 feet. 5

7 Current operating limits as outlined in the Settlement Agreement (Attachment 2, Appendix T) for Cabinet Gorge and Noxon Rapids includes: Cabinet Gorge: Maximum Forebay Elevation Minimum Forebay Elevation Minimum Discharge 5,000 cfs Noxon Rapids: Maximum Forebay Elevation Minimum Forebay Elevation (May 15 Sept 30) Minimum Forebay Elevation (Oct 1 May 14) Maximum Forebay Draft Rate 2 feet per day (net) 5 feet per week (net) 2) If there is no flow condition recommended by any Resource Agency for the Facility, or if the recommendation was issued prior to January 1, 1987, is the Facility in Compliance with a flow release schedule, both below the tailrace and in all bypass reaches, that at a minimum meets Aquatic Base Flow standards or good habitat flow standards calculated using the Montana-Tennant method? 3) If the Facility is unable to meet the flow standards in A.2., has the Applicant demonstrated, and obtained YES = Pass, go to B Go to A3 YES = Pass, go to B Each year Avista files documentation with FERC confirming compliance with flow and impoundment level conditions. The facility is in compliance with resource agency recommendations for flows, as outlined in the Settlement Agreement and annual reports (Refer to Attachment A, 2008 annual report and FERC Order approving annual report and implementation plans)

8 a letter from the relevant Resource Agency confirming that demonstration, that the flow conditions at the Facility are appropriately protective of fish, wildlife, and water quality? B. Water Quality PASS FAIL Applicant Answer 1) Is the Facility either: a) In Compliance with all conditions issued pursuant to a Clean Water Act Section 401 water quality certification issued for the Facility after December 31, 1986? Or b) In Compliance with the quantitative water quality standards established by the state that support designated uses pursuant to the federal Clean Water act in the Facility area and in the downstream reach? YES = Go to B2 YES - a) Clean Water Act Section 401 water quality certification was received from the Idaho Department of Environmental Quality (IDEQ) on August 20, 1999 and the Montana Department of Environmental Quality (MDEQ) on April 27, 1999 (see Attachment B-1). IDEQ and MDEQ were parties to the Clark Fork Settlement Agreement and both certifications reference specific appendices of the Settlement Agreement that were designed to protect, maintain, and enhance various natural resources and environmental values affected by the hydroelectric facilities including water quality and beneficial uses of the waters of the Clark Fork River. Both IDEQ and MDEQ determined that continued operation of the Project in accordance with the conditions listed below would not result in violation of water quality standards or beneficial uses (Attachment B-1). FERC issued the new license on February 23, 2000 with an effective date of March 1, 2001 (See Attachment 1). These Clean Water Act (CWA) 401 certifications became Appendix A of the New License Order. Articles 409 through 413 address water quality issues at the project and correlate to Appendices F1 through F5 of the Settlement Agreement (SA) (Attachment 2). The 401s also include 13 other PM&E measures and plans that pertain to fishery, wildlife and botanical resources; and erosion and project operations. The license articles that deal specifically with water quality are briefly described below: Article 409 Support Tri-State Implementation Council Water Quality Monitoring Program (Appendix F1 of SA). Article 410 Monitoring of Noxon Reservoir Stratification and Mobilization of Sediment Nutrients/Metals (Appendix F2 of SA). Article 411 Aquatic Tissue Analysis (Appendix F3 of SA). Article 412 Water Quality Protection and Monitoring Plan for Maintenance, Construction and Emergency Activities (Appendix F4 of SA). 7

9 Article 413 Dissolved Gas Supersaturation Control, Mitigation, and Monitoring (Appendix F5 of SA). Compliance with conditions of the 401 Certification and associated License Articles include: Article 409 The Licensee has funded this program for over 10 years. The Tri-State Water Quality Council Monitoring Program conducts the water quality monitoring for the Project. The results of data collected from 1984 to 2007 indicated overall that water quality with respect to nutrients and attached algae showed no trends, or improving trends in the Clark Fork- Pend Oreille Watershed (TSWQC, ). Monitoring during the 2007 calendar year found that total recoverable and dissolved metals constituents were generally low at all monitoring locations with median values often at or below the analytical detection limits. In general, the frequency of detectable metals parameters (primarily copper and zinc) in the lower Clark Fork River showed a decreasing spatial trend from Thompson Falls Dam to below Cabinet Gorge Dam (TSWQC, 2007). Article 410 The purpose of this monitoring effort is to collect additional data concerning the potential for nutrients or metals deposited in Noxon Reservoir sediments to remobilize back into the water column during periods of reservoir stratification. Conclusions of monitoring results indicated that the potential for widespread mobilization of nutrients or metals from reservoir sediments appeared to be low, and that metals mobilization from reservoir sediments did not appear to be an issue of concern. Due to these conclusions, it was determined that future monitoring was not necessary (Land & Water Consulting, Inc. 2002). Article 411 WRTAC had determined that tissue analysis was not warranted; however, the PM&E retains a commitment from Avista to fund tissue analysis should public health or other concerns arise in the future. Article 412 The Plan was submitted to FERC on April 12, 2002 (see Attachment B-2). FERC approved the Plan via order issued December 10, 2002 (Attachment B-3). Annual meetings are held with Avista staff to review and coordinate upcoming activities. 8

10 Article The Clark Fork Settlement Agreement required development of a Final Gas Supersaturation Control Program (GSCP) for the Clark Fork Project. This plan was approved by Idaho DEQ and the USFWS and submitted to FERC on July 6, 2004 (Attachment B-4), as a condition of the project license. FERC approved the plan on January 11, 2005 (Attachment B-5). The plan outlines activities that will reduce production of excess TDG at the Cabinet Gorge Dam in Idaho. With the establishment of the Settlement Agreement, operations at Noxon Dam upstream of Cabinet Gorge in Montana were altered so that there is little to no elevated TDG production from the Noxon facility. Increases in flows through the Cabinet Gorge powerhouse and the change in spill gate operations are examples of efforts that reduce, offset, or otherwise mitigate the increase in TDG due to spill at the Cabinet Gorge Dam as required by the GSCP (2004). The 2004 GSCP also proposed a bypass tunnel that will reduce TDG production at Cabinet Gorge Dam, however, this plan is being revised because the tunnels alternative that was part of the GSCP is not feasible. The Licensee is currently developing an addendum to the plan to help meet current standards (Attachment B-6). The Licensee has been in compliance with funding and implementing the Settlement Agreement related to water quality and associated PM&E measures and programs as noted in their annual reports (see Attachment B-6 for most current annual reports and implementation plans related to License Articles 409 through 413). Attachment 3 includes the FERC s order approving the latest annual report and plans. 2) Is the Facility area or the downstream reach currently identified by the state as not meeting water quality standards (including narrative and numeric criteria and designated uses) pursuant to Section 303(d) of the Clean Water Act? YES = Go to B3 YES - The Clark Fork River from the Idaho/Montana State line to Cabinet Gorge Dam (0.55 miles) is on the State of Idaho s 303(d) list of impaired waters for cadmium, copper, zinc and dissolved gas supersaturation (See Attachment B-7). The Clark Fork River is also on the State of Montana s 303(d) list of impaired waters for the (d) list because cold-water fishery and aquatic life beneficial uses are partially supported due to thermal modifications, flow alteration, and other habitat alterations likely caused by dam construction and flow regulation/modification. Total dissolved gas supersaturation exceeds standards during high flow/spill events mainly caused by the Thompson Falls Dam located upstream. Therefore, total 9

11 3) If the answer to question B.2 is yes, has there been a determination that the Facility is not a cause of that violation? YES = Pass C. Fish Passage and Protection PASS FAIL Applicant Answer 1) Is the Facility in Compliance with Mandatory Fish Passage Prescriptions for upstream and downstream passage of anadromous and catadromous fish issued by Resource Agencies after December 31, 1986? YES = Go to C5 N/A = Go to C2 dissolved gas was added as a cause of impairment on the (d) list. It should be noted that MCA ( Conditions resulting from the reasonable operation of dams at July 1, 1971 are 'natural. ) may apply and the above-listed impairments may be considered natural upon further evaluation. This segment will be reassessed following completion of the large river protocols. (see Attachment B-8) YES - Activities that have occurred upstream in the headwaters of the Clark Fork River include residential development, mining, and agriculture have an impact on the water quality of the river as it passes through the project (FERC FEIS 2000) (see Attachment B-9). Montana DEQ also attributes TDG issue to impacts from Thompson Falls Dam located upstream (Attachment B-8). Both Idaho and Montana recognize the issue of historic mining in the watershed and its downstream effects (Attachments B-8 and B-9). YES - By letter filed May 3, 1999, the U.S. Department of Interior (Interior) submitted its Section 18 fishway prescriptions for the Clark Fork Project which are included as Appendix C of FERC License (Attachment C- 1). Anadromous and catadromous fish do not occur in the Clark Fork River (a tributary of the Pend Oreille River) and did not occur historically in the Project area. Prior to construction of Grand Coulee Dam on the Columbia River, the lower section of the Pend Oreille River, below Box Canyon Dam, was reported to have supported anadromous runs of Chinook salmon. However, anadromous fish were restricted to the lower reaches of the Pend Oreille River due to natural fish barriers at Z Canyon (RM 18) located in Washington State near the Canadian border and over 270 river miles downstream from the Cabinet Gorge Dam. Since no anadromous of catadromous fish occur in the project area, the mandatory fish passage prescriptions are related to riverine or resident fish. These fish passage prescriptions are also included in the Clark Fork Settlement Agreement (Attachment 2). The fish passage prescriptions are still valid and Avista has developed and implemented a fish passage program in accordance with the prescriptions, terms of the Clark Fork Settlement Agreement and the Native Salmonid Restoration Plan. Following issuance of the Clark Fork River Project FERC License, Avista 10

12 provided upstream fish passage via trap and haul techniques. These include electrofishing, trapping, and hook-and-line methods below Noxon Rapids and Cabinet Gorge dams and the transport of those fish upstream to appropriate locations based on genetic analysis and assignment to a specific region. Genetic testing includes bull trout and more recently Westslope Cutthroat Trout. In addition to genetic analysis, a number of bull trout, and other fish, captured downstream of Cabinet Gorge Dam, have been surgically implanted with radio transmitters, prior to transport, to monitor movement patterns. Currently the existing fish ladder at the IDFG Cabinet Gorge Fish Hatchery, located below Cabinet Gorge Dam, has been utilized as a capture facility for adult bull trout as well as other fish. A number of other fish collection facilities have been reviewed and developed over the years, but were ineffective at capturing bull trout. An expert fish passage panel was formed in 2008 to review past fish passage activities and recommend future upstream fish passage measures at the Cabinet Gorge and Noxon Rapids dams. The report was developed to assist the Clark Fork Management Committee and its subcommittees in future decisions regarding upstream fish passage development at Cabinet Gorge and Noxon Rapids dams. The expert fish passage panel findings and recommendations final report was completed in March 2009 and filed with FERC on April 14, In general, recommendations of the Panel for both the Cabinet Gorge and Noxon Rapids dams included reviews of existing capture and transport programs to determine their level of success, determine whether the existing program can be improved, and proceed with pre-design of permanent production fishways while maximizing the existing trap and haul program. For downstream passage, traps are installed in tributaries of Cabinet Gorge and Noxon Rapids reservoirs to capture downstream migrating fish, especially juvenile bull trout. Juvenile bull trout are transported to appropriate release locations in the Clark Fork River downstream of Cabinet Gorge Dam. All fish, including bull trout, that were radio tagged and released in the lower Clark Fork River have been Passive Integrated Transponder (PIT) 11

13 2) Are there historic records of anadromous and/or catadromous fish movement through the Facility area, but anadromous and/or catadromous fish do not presently move through the Facility area (e.g., because passage is blocked at a downstream dam or the fish run is extinct)? YES = Go to C2a Go to C3 tagged. These PIT-tagged fish are tracked in a database used to evaluate fish movement, survival and other life history aspects and to make informed decisions on both juvenile and adult bull trout transport. The database also provides important information for upstream fish passage studies. Other aspects required under the Mandatory Fish Passage Prescription include exotic fish control and monitoring fish populations which have been implemented and reported in annual reports. Over the years Avista has diligently pursued fish passage at the Clark Fork Project and currently provides upstream and downstream fish passage via trap and haul methods. They are continuing to study to improve passage options at the Cabinet Gorge and Noxon Rapids dams and are currently pursuing a formal agreement with the USFWS regarding future fish passage activities. The Project is in compliance with the Mandatory Fish Passage Prescriptions for upstream and downstream passage (refer to Attachment C- 2) a) If the fish are extinct or extirpated from the Facility area or downstream reach, has the Applicant demonstrated that the extinction or extirpation was not due in whole or part to the Facility? b) If a Resource Agency Recommended adoption of upstream and/or downstream fish YES = Go to C2b N/A = Go to C2b YES = Go to C5 N/A = Go 12

14 passage measures at a specific future date, or when a triggering event occurs (such as completion of passage through a downstream obstruction or the completion of a specified process), has the Facility owner/operator made a legally enforceable commitment to provide such passage? to C3 3) If, since December 31, 1986: a) Resource Agencies have had the opportunity to issue, and considered issuing, a Mandatory Fish Passage Prescription for upstream and/or downstream passage of anadromous or catadromous fish (including delayed installation as described in C2a above), and Go to C5 N/A = Go to C4 YES = ---- b) The Resource Agencies declined to issue a Mandatory Fish Passage Prescription, c) Was a reason for the Resource Agencies declining to issue a Mandatory Fish Passage Prescription one of the following: (1) the technological infeasibility of passage, (2) the absence of habitat upstream of the Facility due at least in part to inundation by the Facility impoundment, or (3) the anadromous or catadromous fish are no longer present in the Facility area and/or downstream reach due in whole or part to the presence of the Facility? 13

15 4) If C3 was not applicable: a) Are upstream and downstream fish passage survival rates for anadromous and catadromous fish at the dam each documented at greater than 95% over 80% of the run using a generally accepted monitoring methodology? YES = Go to C Or b) If the Facility is unable to meet the fish passage standards in 4.a., has the Applicant demonstrated, and obtained a letter from the US Fish and Wildlife Service or National Marine Fisheries Service confirming that demonstration, that the upstream and downstream fish passage measures (if any) at the Facility are appropriately protective of the fishery resource? 5) Is the Facility in Compliance with Mandatory Fish Passage Prescriptions for upstream and/or downstream passage of Riverine fish? YES = Go to C6 N/A = Go to C6 YES - Refer to C.1 above. 6) Is the Facility in Compliance with Resource Agency Recommendations for Riverine, anadromous and catadromous fish entrainment protection, such as tailrace barriers? YES = Pass, go to D N/A = Pass, go to D N/A D. Watershed Protection PASS FAIL Applicant Answer 1 ) Is there a buffer zone dedicated for conservation purposes (to protect fish and wildlife habitat, water quality, YES = Pass, go to E and receive 3 go to D2 YES The Project has a buffer zone for dedicated conservation purposes as outlined in its Land Use Management Plan (Attachment D-1). Approximately 57% of the project area is designated as either Conservation 14

16 aesthetics and/or low impact recreation) extending 200 feet from the high water mark in an average water year around % of the impoundment, and for all of the undeveloped shoreline? extra years of certification 1 or Conservation 2 lands and another 7% is in low-impact recreation for a total of 64% of the project area. See Table 2 on Page 28 of the Land Use Management Plan for a breakdown of the land use categories within the project area. The Land Use Category Maps are located in Appendix B of the Land Use Management Plan. 2 ) Has the facility owner/operator established an approved watershed enhancement fund that: 1) could achieve within the project s watershed the ecological and recreational equivalent of land protection in D.1., and 2) has the agreement of appropriate stakeholders and state and federal resource agencies? YES = Pass, go to E and receive 3 extra years of certification go to D ) Has the facility owner/operator established through a settlement agreement with appropriate stakeholders and that has state and federal resource agencies agreement an appropriate shoreland buffer or equivalent watershed land protection plan for conservation purposes (to protect fish and wildlife habitat, water quality, aesthetics and/or low impact recreation). YES = Pass, go to E go to D ) Is the facility in compliance with both state and federal resource agencies recommendations in a license approved shoreland management plan regarding protection, mitigation or enhancement of shorelands surrounding the project. YES = Pass, go to E No =

17 E. Threatened and Endangered Species Protection PASS FAIL Applicant Answer 1) Are threatened or endangered species listed under state or federal endangered Species Acts present in the Facility area and/or downstream reach? YES = Go to E2 Pass, go to F YES - Federally listed species that were known to occur in the project area, when the Project was re-licensed, included the grizzly bear (threatened), gray wolf (endangered), bull trout (threatened), and water howellia, a threatened aquatic plant. The Canada lynx, a previous proposed species, was listed as threatened in March The bald eagle (threatened) and peregrine falcon (endangered) were delisted in August 2007 and August 1999, respectively. Even though the bald eagle and peregrine falcon were delisted, bald eagles are still protected by the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. And peregrine falcon are still protected under the Migratory Bird Treaty Act. The gray wolf was downsized from endangered to threatened in early 2003, and then delisted May 4, The Biological Assessment (BA) for the Clark Fork Project concluded that the continued operation of the project would not likely adversely affect grizzly bear, gray wolf, water howellia, bald eagle, peregrine falcon, or the continued existence of the Canada lynx. Interior s Biological opinion concluded that the project would likely adversely affect bull trout (see Section E.3 below). 2) If a recovery plan has been adopted for the threatened or endangered species pursuant to Section 4(f) of the endangered Species Act or similar state provision, is the Facility in Compliance with all recommendations in the plan relevant to the Facility? YES = Go to E3 N/A = Go to E3 No = YES The US Fish and Wildlife Service (USFWS) has adopted the following recovery plans for existing listed species that may be present in the vicinity of the Clark Fork Project: U.S. Fish and Wildlife Service Grizzly Bear Recovery Plan. Cabinet-Yaak Recovery Area. USFWS, Missoula MT. U.S. Fish and Wildlife Service Draft Recovery Plan for Bull Trout, Columbia River/Klamath. Chapter 3. Clark Fork River. Clark Fork Recovery Unit. USFWS, Portland OR. 16

18 The Grizzly Bear Recovery Plan, and more specifically the Cabinet-Yaak Recovery Area, is located along the northern shoreline of the Clark Fork Project. The Area extends north to the Canadian border and includes approximately 2,600 square miles. A small population of grizzlies has been documented in this recovery zone and although grizzly bears are periodically sighted along the hillsides and upper elevation areas surrounding the projects, they have rarely been reported in the lowlands and more developed areas along the reservoirs. No changes to the projects are proposed that would alter or adversely impact available grizzly bear habitats (FERC Final EIS, 2000). Operations of the Clark Fork Project are consistent with the recovery plan (Attachment E-1, Grizzly Bear Recovery Plan). The USFWS completed a draft recovery plan for bull trout in 2002, that included the Lower Clark Fork River. The Service intends to finalize the plan soon with cooperation from federal, state and tribal partners, and with public input. The Clark Fork License and Settlement Agreement, including the Native Salmonid Restoration Plan, is consistent with, and in compliance with, the goals and objectives of the draft recover plan for bull trout (Attachment E-2, Bull Trout recovery plan). 3) If the Facility has received authority to incidentally take a listed species through: (i) Having a relevant agency complete consultation pursuant to ESA Section 7 resulting in a biological opinion, a habitat recovery plan, and/or (if needed) an incidental Take statement; (ii) Obtaining an incidental Take permit pursuant to ESA Section 10; or (iii) For species listed by a state and not by the federal government, obtaining authority pursuant to similar state procedures; is the Facility in Compliance with conditions pursuant to that authority? YES = Go to E4 N/A = Go to E5 No = The USFWS has not completed a Recovery Plan for the Canada Lynx. They are still is the process of outlining the scope of the recovery efforts for this species. YES The facility received authority to incidentally take a listed species. The FERC completed consultation pursuant to ESA Section 7 resulting in a biological opinion which included an incidental take statement. By letter dated August 5, 1999 (Attachment E-3), the Department of Interior, USFWS (Interior), filed its biological opinion concurring that the project would likely adversely affect bull trout, but concluded that the project would not likely jeopardize the continued existence of the Columbia River distinct population segment of bull trout. Interior included an incidental take statement in its biological opinion. The incidental take statement included reasonable and prudent measures and terms and conditions to minimize incidental take as part of the biological opinion. The Clark Fork Project Final EIS concluded that the measures specified in the incidental take statement are consistent with the terms of the Settlement Agreement. 17

19 Interior s incidental take statement contains 9 reasonable and prudent measures, which are also listed in the License, and 26 terms and conditions it believes necessary to implement the measures. The 26 terms and conditions are addressed in an annual Threatened and Endangered Species Plan and Annual Report, prepared after consultation with the Management Committee. The 2008 annual report is included as Attachment E-4 and demonstrates Avista s compliance with the terms and conditions of the incidental take statement filed by Interior on August 23, 1999, and attached as Appendix D of the new License (issued via FERC Order February 23, 2000) for the Clark Fork Project. 4) If a biological opinion applicable to the Facility for the threatened or endangered species has been issued, can the Applicant demonstrate that: a) The biological opinion was accompanied by a FERC license or exemption or a habitat conservation plan? Or b) The biological opinion was issued pursuant to or consistent with a recovery plan for the endangered or threatened species? Or c) There is no recovery plan for the threatened or endangered species under active development by the relevant Resource Agency? Or d) The recovery plan under active development will have no material effect on the Facility s operations? YES = Pass, go to F YES The Biological Opinion (Attachment E-3) was accompanied by a FERC License (see Attachment 1, FERC Order issuing License, page 12-14). 5) If E.2. and E.3. are not applicable, has the Applicant demonstrated that the Facility and Facility operations do not negatively affect listed species? YES = Pass, go to F

20 F. Cultural Resource Protection PASS FAIL Applicant Answer 1) If FERC-regulated, is the Facility in Compliance with all requirements regarding Cultural Resource protection, mitigation or enhancement included in the FERC license or exemption? YES = Pass, go to G N/A = Go to F2 YES - The Licensee and cultural resource agencies that make up the Cultural Resources Management Group (CRMG) signed a Programmatic Agreement (PA) that was submitted to FERC as part of the Settlement Agreement/Final License Application on February 17, 1999 (see Attachment F-1). The terms of the PA direct the Licensee to appropriately address and treat all historic properties identified within the project area through a comprehensive plan called the Clark Fork Heritage Resource Program, which avoids negative impacts and preserves historic properties in-place. The Heritage Resources Treatment Plan guides the process to protect, enhance and if necessary, treat impacts to eligible historic properties. All members of the CRMG have a long-term commitment to the adaptive management of these resources over the term of the new license. FERC issued the new license on February 23, 2000 with an effective date of March 1, Article 427 of the New License (See Attachment 1) directs the Licensee to fund and implement the Programmatic Agreement among the Kootenai Tribe of Idaho, Confederated Salish and Kootenai Tribes of the Flathead Reservation, Couer d Alene Tribe, Kalispel Tribe, FERC, Forest Service, Avista Corporation, Advisory Council on Historic Preservation, Idaho State Historic Preservation Office, and Montana State Historic Preservation Office for the Clark Fork Heritage Resource Program executed on December 30, 1998 (Appendix R of the Settlement Agreement). A FERC order on October 30, 2000 (See Attachment F-2), modified the language of Article 427 to more closely match the verbiage of the PA in Appendix R of the Settlement Agreement. The order revised Article 427 to read: The Licensee shall fund and implement the Clark Fork Heritage Resource Program and the Clark Fork Heritage Resources Management Program, as agreed to in the Programmatic Agreement among the Kootenai Tribe of Idaho, Confederated Salish and Kootenai Tribes of the Flathead Reservation, Couer d Alene Tribe, Kalispel Tribe, FERC, Forest Service, Avista Corporation, Advisory Council on Historic Preservation, Idaho State Historic Preservation Office, and Montana State Historic 19

21 Preservation Office for the Clark Fork Heritage Resource Program executed on December 30, 1998 (Appendix R of the Settlement Agreement). All PM&Es are coordinated and approved by the CRMG to ensure compliance with the Programmatic Agreement. In addition, the CRMG reviews all annual implementation plans as part of the overall annual approval process. Those projects, which are of concern to the CRMG, are monitored throughout their implementation. The CRMG also monitors all ground-disturbing activities that may impact cultural or historic resources. 2) If not FERC-regulated, does the facility owner/operator have in place a plan for the protection, mitigation or enhancement of impacts to Cultural Resources approved by the relevant state or federal agency or Native American Tribe, or a letter from a senior officer of the relevant agency or Tribe that no plan is needed because Cultural Resources are not negatively affected by the Facility? YES = Pass, go to G Over the years Avista has funded and diligently implemented the Programmatic Agreement in accordance with the terms of the Clark Fork Settlement Agreement and the New License. Annual reports have been prepared each year to show what implementation measures have occurred over the last year and the proposed measures to take place for the following year (see Attachment F-3 for 2009 implementation plans). The Project is in compliance with the Programmatic Agreement and Article 427 of the New License. See Attachment 3 for FERC s order approving the latest annual report

22 G. Recreation PASS FAIL Applicant Answer 1) If FERC-regulated, is the Facility in Compliance with the recreational access, accommodation (including recreational flow releases) and facilities conditions in its FERC license or exemption? YES = Go to G3 N/A = Go to G2 YES - A Recreation Resource Management Plan was developed as part of the Settlement Agreement and submitted to FERC as part of the Final License Application on February 17, 1999 (see Attachment G-1). One of the goals of the plan is to provide adequate and safe public access to waterbased recreation within the project area. FERC issued the new license on February 23, 2000 with an effective date of March 1, Article 415 of the New License (see Attachment 1) directs the Licensee to fund and implement, in consultation with the Management Committee, the Recreation Resources Management Plan (License Application Volume IV.C), in accordance with the Settlement Agreement and Appendix H thereof, to maintain and manage appropriate recreational facilities at the project and to develop new recreational facilities in the vicinity of the project to effectively meet recreation demand during the term of the new license. In the Annual Report required by Article 402, the Licensee shall include the annual implementation plan for this PM&E measure. Also, Standard License Article 18 directs the Licensee to allow the public free access to project waters and adjacent lands. 2) If not FERC-regulated, does the Facility provide recreational access, accommodation (including recreational flow releases) and facilities, as Recommended by Resource Agencies or other agencies responsible for recreation? 3) Does the Facility allow access to the reservoir and downstream reaches without fees or charges? YES = Go to G3 YES = Pass, go to H The Licensee has been diligently implementing the Recreation Resource Management Plan as demonstrated in the annual reports and implementation plans (refer to Attachment G-2 for most recent annual report and plan). There have been no issues noted and the Licensee is in compliance with Article 415 of the New License. See Attachment 3 for FERC s order approving the latest annual report

23 H. Facilities Recommended for Removal PASS FAIL Applicant Answer 1) Is there a Resource Agency Recommendation for removal of the dam associated with the Facility? Pass, Facility is Low Impact YES = NO See Attachment H-1 22