ferc order issuing license for dep's cannonsville hydropower project

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  • 7/27/2019 FERC Order Issuing License for DEP's Cannonsville Hydropower Project

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    147 FERC 62,113UNITED STATES OF AMERICA

    FEDERAL ENERGY REGULATORY COMMISSION

    City of New York Project No. 13287-004

    ORDER ISSUING ORIGINAL LICENSE

    (May 13, 2014)

    INTRODUCTION

    1. On February 29, 2012, the City of New York (City) filed, pursuant to Part 1 of theFederal Power Act (FPA),1an application for an original license to construct, operate,and maintain the proposed Cannonsville Hydroelectric Project No. 13287 (Cannonsville

    Project or project). The 14.08-megawatt (MW) project will be located at the Citysexisting Cannonsville Reservoir, on the West Branch of the Delaware River, near theTown of Deposit, Delaware County, New York. The project will not occupy any federallands.

    2

    2. As discussed below, this order issues an original license for the CannonsvilleProject.

    BACKGROUND

    3. On April 2, 2012, the Commission issued a public notice that was published in the

    Federal Registeraccepting the application for filing, and soliciting motions to interveneand protests.

    3 The notice set June 1, 2012, as the deadline for filing motions to intervene

    and protests. The New York Department of Environmental Conservation (New YorkDEC) filed a timely motion to intervene on May 16, 2012,4 and the U.S. Department of

    116 U.S.C. 791(a) 825(r) (2012).

    2 The West Branch Delaware River is a tributary of the Delaware River, anavigable water of the United States. Because the project is located on a stream overwhich Congress has jurisdiction under the Commerce Clause, affects interstate commerce

    through its connection to an interstate power grid, and the project will be constructedafter 1935, it is required to be licensed by the Commission pursuant to section 23(b)(1) ofthe FPA. See 16 U.S.C. 817(1)(2012);see also FPC v. Union Electric Co., 381 U.S. 90,94-96 (1965) andHabersham Mills v. FERC, 976 F.2d 1381, 1384-85 (11th Cir. 1992).

    377Fed. Reg. 21551-21552 (April 10, 2012).

    4Timely, unopposed motions to intervene are granted by operation of Rule 214(c)

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    the Interior (Interior), on behalf of the U.S. Fish and Wildlife Service (FWS), theNational Park Service (NPS), and the U.S. Geological Survey (USGS), filed a timelynotice of intervention on May 23, 2012.5 The Friends of the Upper Delaware River fileda late motion to intervene on June 5, 2012, (amended on June 7, 2012) that was grantedby the Commission on July 18, 2012. The Coalition of Watershed Towns, New York

    State Senator John Bonacic, and the U.S. Fish and Wildlife Service also filed comments.None of the intervenors or commenters oppose the project.

    4. On November 2, 2012, the Commission issued a public notice that was publishedin theFederal Registerindicating the application was ready for environmental analysisand soliciting comments, recommendations, terms and conditions, and prescriptions.6

    Interior and the New York DEC filed comments and recommendations on December 18and 21, 2012, respectively. The City filed reply comments on February 15, 2013.

    5. A draft Environmental Assessment (draft EA) was prepared by Commission staff

    and issued on October 31, 2013, analyzing the effects of the proposed project andalternatives to it. Interior and the City filed comments on the draft EA on November 21,2013, and December 2, 2013, respectively. On January 28, 2014, Commission staffissued a final EA. References in this order to the EA are to the final EA unless otherwisenoted.

    6. The interventions, comments, and recommendations have been fully considered indetermining whether, and under what conditions, to issue this license.

    PROJECT DESCRIPTION AND OPERATION

    A. Project Area

    7. Cannonsville Reservoir is located on the West Branch of the Delaware River inNew Yorks Catskill Mountains. The West Branch of the Delaware River is the principaldrainage channel for the basin and delivers flows from northeast to southwest through arelatively narrow, flat-floored valley. From Cannonsville Reservoir, the West Branch ofthe Delaware River flows about 18 miles to its confluence with the East Branch of theDelaware River, forming the Delaware River. From that point, the Delaware River flowsgenerally southward over 200 miles into Delaware Bay.

    of the Commissions Rules of Practice and Procedure. 18 C.F.R. 385.214 (c) (2013).

    5 Under Rule 214(a) of the Commissions Rules of Practice and Procedure, FWS,NPS, and USGS became parties to the proceeding upon timely filing of the notice ofintervention. 18 C.F.R. 385.214(a) (2013).

    677Fed. Reg.67352 (November 2, 2012).

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    B. Existing Facilities and Reservoir Operation

    1. Cannonsville Dam and Reservoir

    8. Cannonsville Dam was built and placed into service in the mid-1960s for the

    purpose of supplying water to the City of New York. It is located on the West Branch ofthe Delaware River near the Town of Deposit, Delaware County, New York. The dam isa zoned earthen embankment with a 2,800-foot-long, 45-foot-wide crest rising 175 feetabove the valley floor to an elevation of 1,175.0 feet above mean sea level (msl). Thedam is orientated in a north-south direction and is formed by two embankment sections.An un-gated spillway is located at the abutment on the north side of the dam. Thespillway discharges into a channel that was excavated from bedrock and runs parallel tothe spillway.

    9. The dam impounds Cannonsville Reservoir, which is approximately 12 miles long,with a surface area at the spillway crest elevation of 1,150.0 feet msl of about 4,670acres. The usable storage capacity of the reservoir is reported to be about 296,840 acre-feet. The mean depth of the impoundment, relative to the spillway crest elevation, isabout 61 feet.

    10. The dams low-level outlet release works are operated to convey flow to the WestBranch of the Delaware River downstream of the dam and are located at the south end ofthe dam. Discharges are made through a concrete intake structure at the upstream toe ofthe dam and then through a 17.5-foot-diameter concrete diversion conduit that reducesdown to an 11.9-foot-diameter release conduit.

    11. The Citys water supply withdrawals are made through an intake chamber locatedon the south shore of the impoundment, roughly 5 miles upstream of the dam. Waterdrawn from Cannonsville Reservoir enters the West Delaware Tunnel and travelsapproximately 44 miles to the upper end of Rondout Reservoir. From there, it is carriedin the 85-mile-long Delaware Aqueduct and through other reservoirs before entering theCitys water supply distribution system. The Citys water supply intake is not part of theproposed hydroelectric project. Its water supply function would continue under anylicensing alternative.

    2. Delaware River Basin

    12. Diversions and releases from Cannonsville Reservoir are subject to a 1954 Decreeissued by the United States Supreme Court that established an equitable allocation ofDelaware River Basin waters (1954 Decree).7 The parties to the decree are the City of

    7New Jersey v. New York, 347 U.S. 995 (1954). The Decree is reprinted athttp://water.usgs.gov/osw/odrm/decree.html

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    New York, the States of Delaware, New Jersey, and New York, and the Commonwealthof Pennsylvania (Decree Parties). As pertinent here, the 1954 Decree established theamount of water the City could withdraw from each of its three reservoirs and providedfor minimum average releases from the reservoirs that in the aggregate would meet aflow requirement as measured downstream of the reservoirs at a location in New Jersey.

    8

    13. In 1961, the Decree Parties and the federal government enacted legislation knownas the Delaware River Basin Compact.9 The Compact established the Delaware RiverBasin Commission (DRBC) and gave it the authority to regulate and control withdrawalsand diversions from surface and ground waters throughout the basin for the conservation,utilization, and development of basin water and related resources.10 However, theDRBCs allocation of basin waters under the Compact may not adversely affect the rightsand obligations of the Decree Parties under the 1954 Decree without their unanimousconsent.11

    14. In 2007, the DRBC and the Decree Parties implemented a Flexible FlowManagement Program (FFMP) to manage the Citys reservoirs for competing waterneeds and to address other issues, such as conservation and habitat protection.12 Since

    8 347 U.S. 995 at 997-998. The Decree: (1) allocated to New York City theequivalent of 800 million gallons per day from the Citys three Delaware Basin reservoirs(effective when all three of those reservoirs were fully constructed); (2) requiredcompensating releases from the Citys reservoirs to maintain a flow of 1,750 cubic feetper second at Montague, N.J.; (3) established an excess quantity to be released from thereservoirs each year; and (4) granted certain diversion rights to New Jersey. The Decreeestablished the Delaware River Master to implement the terms of the Decree.

    9 Delaware River Basin Compact Act of 1961, Pub. L. 87-328, 75 Stat. 688. TheCompact is available at: www.state.nj.us/drbc/library/documents/compact.pdf. See18 C.F.R. Part 401 (2013) (DRBC regulations).

    10Compact, Section 13.1. The DRBC includes a representative of each of theDecree Parties and a representative of the United States.

    11Compact, Sections 3.3, 3.5. The Compact also provides that certain projects,

    including proposed hydropower projects, are subject to the DRBCs review and approval.

    SeeCompact, Section 3.8; and 18 C.F.R. 401.31-401.41 (2013). Therefore, the Citymust seek the DRBCs approval that its project is consistent with DRBCscomprehensive plan for the basin. On March 24, 2014, the Citys Cannonsville Dam andReservoir hydropower project was included on the DRBCs list of the most recentlyreceived applications for approval pursuant to Section 3.8 of the Compact, under docketno. D-2014-002 CP-1.

    12The FFMP is available through the Office of the Delaware River Masters web

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    the initial implementation period (October 1, 2007 through May 31, 2011), the FFMP hasbeen modified several times and the current agreement makes clear that additionalanalyses and studies are needed before Decree Parties can reach a longer term agreement.The current operating protocol for the reservoir, referred to as the Flexible FlowManagement Program with Operations Support Tool (FFMP-OST), is currently slated to

    remain in effect until May 31, 2014, with an option for the Decree Parties, by unanimousconsent, to extend it for an additional year (i.e., until May 31, 2015).

    C. Proposed Project Facilities and Operation

    15. The project will consist of the new or modified features described below.

    16. The existing 12-foot-diameter conduit leading from the low-level inlet structure tothe existing low-level release works building will be tapped with a wye connection to a12-foot-diameter steel pipe. The 12-foot-diameter pipe will run in a south-to-northdirection and will be tapped with four individual wye connections to convey the flow tofour individual steel penstocks leading to four turbines.

    17. A new approximately 168-foot-long by 54-foot-wide powerhouse will beconstructed adjacent to the existing low-level release works building. The powerhousewill contain four horizontal-shaft, Francis-type turbine-generator units with a totalhydraulic capacity of 1,500 cubic feet per second (cfs) and a total station capacity of14.08 MW. The rated head, based on a headpond elevation at the spillway crestelevation, is approximately 122 feet.

    18. A tailrace will be excavated adjacent to the existing low-level outlet works

    building to allow generation flows to connect with the West Branch of the DelawareRiver immediately below the dam.

    19. From the powerhouse, generated electricity will run through a 150-foot-long12.47-kilovolt (kV) underground transmission line, then a 1,200-foot-long overhead12.47-kV line to a proposed project step-up substation. The electrical interconnectionbetween the substation and the New York State Electric & Gas Corporation (NYSEG)transmission system will be via a new 460-foot-long, 46-kV overhead transmission line.

    20. A detailed project description is contained in Ordering Paragraph B.

    21. The project will not alter the existing water supply withdrawals to the Cityswater supply system or its flow releases to the West Branch of the Delaware River, as

    site at http://water.usgs.gov/osw/odrm/documents/FFMP_2013_Agreement.pdf. Thisoperating regime is designed as an adaptive framework to allow flexibility formodifications and adjustments.

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    established by the 1954 Decree and the FFMP-OST. As noted above, the Citys watersupply intake is located about 5 miles upstream of the existing dam and proposedpowerhouse. The intake is not proposed to be a project feature and will not serve anyproject purpose. The project will use releases made to the West Branch of the DelawareRiver, which will continue to be made in accordance with the applicable operating

    protocol agreed to by the Decree Parties, as may be modified from time to time.

    22. Flows that are currently released through the dams outlet works will instead bereleased downstream through the proposed powerhouse and tailrace in approximately thesame location as the outlet works point of discharge. The water available for generationat the project will be as stipulated by the DRBC and Decree Parties, currently the FFMP-OST, or subsequent operating protocol agreed to by the Decree Parties.

    23. The estimated annual generation for the project is 42,281 megawatt-hours (MWh)and the annual plant factor is estimated to be about 34 percent.

    C. Project Boundary

    24. The Citys proposed project boundary follows the reservoir shoreline at the 1,150-foot (msl) elevation contour (i.e., spillway elevation), with a 25-foot linear buffer on theupland side. At the dam, the project boundary also extends from 1,450 linear feet (at thesouth abutment) to 100 linear feet (at the north abutment) on the downstream side of thedam to encompass the proposed project facilities, including the powerhouse, tailrace,transmission lines, and spoils area. In all, the project boundary encompasses 4,954 acres,all of which are owned by the City. No federal or tribal lands are present within theproject boundary.

    D. Proposed Environmental Measures

    25. The City proposes to implement the following environmental measures inassociation with construction of the proposed project: (1) update the erosion andsediment control plan in the license application to reflect final project design; (2) usesignage to identify vernal pool13areas to be avoided during construction, and implementany wetlands mitigation that may be required by the U.S. Army Corps of Engineers(Corps); (3) in accordance with its Revised Flow Management Plan filed on February 28,2014,14deploy and operate flow management structures (i.e., siphons) to maintain flows

    13 Vernal pools are small, shallow, and usually isolated depressions that aretemporarily flooded in spring or fall. They provide breeding habitat for reptiles,amphibians, and other wildlife.

    14Letter from Adam T. Conway, counsel, on behalf of the City, filed February 28,2014. The original plan was filed as appendix 11 to the license application, and revisedto be consistent with staffs recommendations in the EA.

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    of appropriate quantity and quality to the West Branch of the Delaware River during the3-month period when construction renders the existing outlet works unusable; and (4)include raptor protection measures in the design and construction of the proposedtransmission lines, to reduce the collision and electrocution risk for raptors, includingbald eagles.

    26. The City proposes to continue to make reservoir releases in accordance with theFFMP-OST, or any subsequent operational protocol agreed to by the Decree Parties.

    SUMMARY OF LICENSE REQUIREMENTS

    27. As summarized below, this license, which authorizes 14.08 MW of renewableenergy, requires a number of measures to protect water quality, fisheries, and terrestrialand cultural resources at the project.

    28. To minimize sediment transport to the West Branch of the Delaware River, thuspreserving water quality in the river and protecting fish and other aquatic life therein, thislicense requires the City to implement an erosion and sediment control plan duringproject construction.

    29. To ensure that flows of appropriate quantity and quality to the West Branch of theDelaware River are maintained during the 3-month period when construction renders theexisting outlet works unusable, this license requires the City to make downstreamreleases via siphons, until the outlet works are again usable.

    30. To ensure that downstream conservation and municipal water supply system

    releases are maintained, and that the reservoir continues to provide flood control benefits,this license requires the City to operate the project in accordance with the FFMP-OST, orany subsequent operating protocol agreed to by the Decree Parties.

    31. To minimize effects on wetlands due to project construction activities and toprotect wildlife habitat, this license requires the City to file a wetland avoidance andmitigation plan.

    32. To protect wildlife resources, this license requires the City to: develop an AvianProtection Plan to include designing and constructing the transmission line to adhere tothe most current Avian Power Line Interaction Committee (APLIC)15standards; and

    15APLIC is a collaboration among numerous electrical utilities and researchgroups and the FWS that was formed to identify the causes of, and develop methods anddesigns to minimize, avian electrocutions and collisions at power lines. APLIC hasreleased guidelines to address avian electrocution and collision.

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    develop a bald eagle conservation plan in consultation with Interior and the New YorkDEC.

    33. To protect cultural resources in the event that they are inadvertently discoveredduring project construction and operation, this license requires the City to discontinue

    construction-related activities until the proper treatment of any potential archaeological orcultural resources is determined.

    WATER QUALITY CERTIFICATION

    34. Under section 401(a)(1) of the Clean Water Act (CWA),16the Commission maynot issue a license authorizing the construction or operation of a hydroelectric projectunless the state water quality certifying agency either has issued water qualitycertification for the project or has waived certification by failing to act on a request forcertification within a reasonable period of time, not to exceed one year. Section 401(d)of the CWA provides that the water quality certification shall become a condition of anyfederal license that authorizes construction or operation of the project.17

    35. On June 8, 2012, the City applied to the New York DEC for water qualitycertification for the Cannonsville Project, which the New York DEC received on June 11,2012. On June 10, 2013, the New York DEC issued certification for the CannonsvilleProject. On June 18, 2013, the New York DEC issued a revised certification thatcorrected two of the conditions.

    18

    36. The certification includes 4 General Conditions, 8 Additional General Conditionsand 29 Special Conditions that are set forth in Appendix A of this order and incorporated

    into the license (see ordering paragraph D). The General Conditions and AdditionalGeneral Conditions 1 3 and 8 are administrative in nature. Additional GeneralConditions 4 7 address pollution prevention, removal of dredged material, interferencewith navigation, and site restoration, but are not project-specific.

    37. The Special Conditions include requirements addressing six subject areas:(1) approved plans (AP119 AP3); (2) construction requirements (C1 C12);

    16 33 U.S.C. 1341(a)(1) (2012).

    1733 U.S.C. 1341(d) (2012).

    18Letter from William J. Clarke, Regional Permit Administrator, New York DEC,Stamford, NY, June 18, 2013; filed on June 27, 2013.

    19 Condition AP1 states All work shall be done in strict conformance with 15approved documents and plans that are then listed, including the certificationapplication and all attachments, as well as parts of the license application, including

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    (3) operational requirements siphons (CO1 CO3); (4) facility operation requirement(FO1);20 (5) fish studies and mitigation (FSM1 FSM3); and (6) statethreatened/endangered species requirements for the bald eagle (T/E1 T/E7).

    38. Article 401 requires the licensee to file, for Commission approval, plans required

    by the certification conditions, notify the Commission of modifications to projectoperation for emergencies or other activities required by the certification, and fileamendment applications for unspecified long-term changes to project operations orfacilities contemplated by the certification.

    COASTAL ZONE MANAGEMENT ACT

    39. Under section 307(c)(3)(A) of the Coastal Zone Management Act (CZMA),21theCommission cannot issue a license for a project within or affecting a states coastal zoneunless the state CZMA agency concurs with the license applicants certification ofconsistency with the states CZMA program, or the agencys concurrence is conclusivelypresumed by its failure to act within 6 months of its receipt of the applicantscertification.

    40. The New York State Department of State manages New Yorks Coastal ZoneManagement Program. The Cannonsville Project is not located within the state-designated Coastal Management Zone, which includes coastal areas and extends inland

    various plans and study reports. Condition AP1s statement that all work be in strictconformance with what amounts to the entire record of this proceeding does not impose a

    specific obligation or requirement on the City and is therefore not enforceable.20Condition FO1 requires:

    Releases from the reservoir shall be governed by the document entitled

    Agreement of the Parties to the 1954 U.S. Supreme Court Decree effective

    June 1, 2013 (Flexible Flow Management Program-Operational Support

    Tool). Each successor agreement as modified and approved by the Decree

    Parties shall be submitted to the Department by the Permittee for

    modification of this permit to incorporate by reference said successor

    agreement.

    This document can be found athttp://water.usgs.gov/osw/odrm/documents/FFMP_2013_Agreement.pdf.

    2116 U.S.C. 1456(c)(3)(A) (2012).

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    along the Hudson River to the east of the project, and the project would not affect NewYorks coastal resources. Therefore, the project is not subject to New Yorks coastalzone program review and no consistency certification is needed.22

    SECTION 18 FISHWAY PRESCRIPTION

    41. Section 18 of the FPA23provides that the Commission shall require theconstruction, maintenance, and operation by a licensee of such fishways as may beprescribed by the Secretary of the Interior (Interior) or the Secretary of Commerce, asappropriate.

    42. By letter filed December 18, 2012, Interior requested that a reservation ofauthority to prescribe fishways under section 18 be included in any license issued for theCannonsville Project. Article 402 of this license reserves the Commissions authority torequire fishways that may be prescribed by Interior for the Cannonsville Project.

    THREATENED AND ENDANGERED SPECIES

    43. Section 7(a)(2) of the Endangered Species Act of 197324requires federal agenciesto ensure that their actions are not likely to jeopardize the continued existence offederally listed threatened and endangered species, or result in the destruction or adversemodification of their designated critical habitat.

    44. In a letter filed December 18, 2012, Interior indicated that there are two federallylisted species, the endangered dwarf wedgemussel and the threatened northern wildmonkshood, with the potential to occur in the project vicinity. Interior stated that, based

    on the Citys survey results showing that northern wild monkshood was not located in thevicinity of the project, no further coordination or consultation would be required for thatspecies.

    45. In the draft EA, staff determined that, with its recommended measures, issuing alicense for the Cannonsville Project would have no effect on the northern wildmonkshood and is not likely to adversely affect the dwarf wedgemussel,25which has beenfound 22 miles downstream of Cannonsville Reservoir. Interior concurred with these

    22

    SeeNew York State Department of State letter dated January 23, 2012, included

    in the Citys license application.

    2316 U.S.C. 811 (2012).

    2416 U.S.C 1536(a)(2) (2012).

    25Seedraft EA at 6.

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    findings in a letter filed November 21, 2013, noting that the required erosion andsediment control measures should minimize the potential for any construction-relatedsediments moving downstream and causing adverse impacts to dwarf wedgemussel.

    NATIONAL HISTORIC PRESERVATION ACT

    46. Under section 106 of the National Historic Preservation Act (NHPA)26and itsimplementing regulations,27federal agencies must take into account the effect of anyproposed undertaking on properties listed or eligible for listing on the National Registerof Historic Places (National Register) (defined as historic properties) and afford theAdvisory Council on Historic Preservation a reasonable opportunity to comment on theundertaking. This generally requires the Commission to consult with the State HistoricPreservation Office (SHPO) to determine whether and how a proposed action may affecthistoric properties, and to seek ways to avoid or minimize any adverse effects.

    47. The proposed projects area of potential effects (APE) was inventoried forcultural resources by the City. The City concluded that, because the project would beconstructed in an area that was previously heavily disturbed by the construction of thedam, there is no likelihood of locating archaeological sites at the proposed locations forthe powerhouse, substation, transmission line, or other structures. Staff reviewed theCitys study and the draft EA concluded that the proposed licensing of the project wouldhave no adverse effect on historic properties. By letter dated December 18, 2013, staffrequested concurrence from the New York SHPO on the no-adverse-effect determination.By letter filed February 21, 2014, the New York SHPO concurred.

    48. However, it is possible that archaeological or historic sites could be discovered

    during construction and over the course of the license. Consequently, Article 406requires the City to stop construction or other ground-disturbing activities and consultwith the New York SHPO if previously unidentified cultural resources are discoveredduring project construction, operation, and maintenance.

    RECOMMENDATIONS OF FEDERAL AND STATE FISH AND WILDLIFE

    AGENCIES PURSUANT TO SECTION 10(j) OF THE FPA

    49. Section 10(j)(1) of the FPA28requires the Commission, when issuing a license, toinclude conditions based on recommendations submitted by federal and state fish and

    2616 U.S.C. 470 et seq. (2012).

    2736 C.F.R. Part 800 (2013).

    2816 U.S.C. 803(j)(1) (2012).

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    wildlife agencies pursuant to the Fish and Wildlife Coordination Act29to adequately andequitably protect, mitigate damages to, and enhance fish and wildlife (including relatedspawning grounds and habitat) affected by the project.

    50. In response to the November 2, 2012 public notice that the project was ready for

    environmental analysis, Interior, in a letter filed December 18, 2012, recommended fivefish and wildlife measures under section 10(j). On November 21, 2013, in response tothe draft EA, Interior revised one of its recommendations. In the final EA, thatrecommendation, as revised, was determined to be outside the scope of section 10(j), andis discussed in the next section.30

    51. This license includes conditions consistent with all four of the recommendationsthat are within the scope of section 10(j): (1) operate the project in compliance with theFFMP-OST (Ordering Paragraph D, certification condition FO1); (2) bury the powerlines where feasible, and if not, follow APLIC guidelines for the transmission lines

    (Article 404); (3) develop an avian protection plan in consultation with the New YorkDEC and the FWS (Article 404); and (4) develop an eagle conservation plan inconsultation with the FWS and the New York DEC (Article 405).

    SECTION 10(a)(1) OF THE FPA

    52. Section 10(a)(1) of the FPA31requires that any project for which the Commissionissues a license be best adapted to a comprehensive plan for improving or developing awaterway or waterways for the use or benefit of interstate or foreign commerce; for theimprovement and utilization of waterpower development; for the adequate protection,mitigation, and enhancement of fish and wildlife; and for other beneficial public uses,

    including irrigation, flood control, water supply, recreation, and other purposes.

    2916 U.S.C. 661 et seq. (2012).

    30The draft EA preliminarily determined that Interiors original 10(j)recommendation for the protection and enhancement of migratory birds may beinconsistent with the comprehensive planning standard of section 10(a) and the equal

    consideration provision of section 4(e) of the FPA, because its proposed time-of-yearrestrictions on vegetation clearing would not allow adequate maintenance of landsadjacent to project facilities and within transmission line corridors (seedraft EA at 96-97,final EA at 97-98). Interior revised its recommendation to remove the time-of-yearrestriction on activities.

    3116 U.S.C. 803(a)(1)(2006).

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    A. Interiors Recommendation

    53. Interiors revised recommendation proposes that for the protection andenhancement of migratory birds, the licensee shall take all practical measures to avoidtake and minimize disturbance during the construction and operation of the hydropower

    project. Because this is not a specific measure to protect, mitigate damages to, orenhance fish and wildlife, it is considered under the broad public-interest standard ofsection 10(a)(1). The related measures required by this license, such as the restriction onthe Citys construction and maintenance activities in proximity to bald eagle nests duringcertain times of the year and the required avian protection plan, are consistent with thisrecommendation and will adequately protect migratory birds at the project.

    B. Wetland Avoidance and Mitigation Plan

    54. Construction of the project will occur adjacent to wetlands in several locations,and will result in the removal of a 0.57-acre freshwater emergent marsh. Wetlands areimportant habitat for wildlife, improve water quality, and perform other functions. In theEA, staff recommended that the City develop and implement a wetland avoidance andmitigation plan to formalize the Citys proposal for identifying and avoiding vernal poolhabitat and mitigating for the removal of emergent wetland within the tailrace.32 Withsuch measures in place, construction-related impacts to wetlands, including vernal poolhabitat, will be minimized. Article 403 requires this plan.

    C. Bald Eagle Conservation Plan

    55. Construction of the project will occur in the vicinity of at least eight documented

    bald eagle nests within the project boundary, including two nests within the proposedconstruction area, and has the potential to affect bald eagles by disturbing nesting,roosting, or foraging activity. The City has an established protocol for monitoring baldeagles at Cannonsville Reservoir, and currently holds a FWS-issued Bald Eagle TakePermit and a New York DEC-issued Incidental Take Permit for Threatened andEndangered Species that authorize existing routine operation and maintenance activitiesin the vicinity of bald eagle nests at Cannonsville Reservoir. The City proposes tocontinue bald eagle monitoring, and consult with FWS and New York DEC to modify itsexisting permits to include the proposed hydropower project. In the EA, staffrecommended that the City develop and implement a bald eagle conservation plan to

    minimize impacts to bald eagles within the project boundary, to include specificmeasures to monitor bald eagles and avoid bald eagle habitat during project construction,operation, and maintenance. Additionally, Interiors 10(j) recommendation no. 5 directedthat the City develop an eagle conservation plan, and New York DECs WQC conditionT/E4 requires that the City follow the guidelines of such a plan. With such a plan in

    32SeeEA at 95 - 96.

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    place, construction, operation, and maintenance impacts to bald eagles will be minimized.Article 405 requires this plan.

    ADMINISTRATIVE PROVISIONS

    A. Annual Charges

    56. The Commission collects annual charges from licensees for administration of theFPA. Article 201 provides for the collection of funds for administration of the FPA.

    B. Exhibit F and G Drawings

    57. The Commission requires licensees to file sets of approved project drawings onmicrofilm and in electronic file format. Article 202 requires the filing of these drawings.

    C. Amortization Reserve

    58. The Commission requires that for original licenses for major projects, non-municipal licensees must set up and maintain an amortization reserve account after thefirst 20 years of operation of the project under license. Because the City is amunicipality, no amortization reserve is required.

    D. Headwater Benefits

    59. Some projects directly benefit from headwater improvements that wereconstructed by other licensees, the United States, or permittees. Article 203 requires thelicensee to reimburse such entities for these benefits at such time as they are assessed.

    E. Project Financing

    60. To ensure that there are sufficient funds available for project construction,operation, and maintenance, Article 204 requires the City to file for Commissionapproval documentation of project financing for the construction, operation, andmaintenance of the project at least 90 days before starting any ground-disturbingactivities that are associated with the project.

    F. Use and Occupancy of Project Lands and Waters

    61. Requiring a licensee to obtain prior Commission approval for every use oroccupancy of project lands and waters would be unduly burdensome. Therefore,Article 407 allows the City to grant permission, without prior Commission approval, forthe use and occupancy of project lands and waters for minor activities such as landscapeplantings and certain types of docking facilities. Such uses must be consistent with thepurposes of protecting and enhancing the scenic, recreational, and environmental valuesof the project.

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    G. Start of Construction

    62. Article 301 requires the City to commence construction of the project workswithin two years from the issuance date of the license and complete construction of theproject within five years from the issuance date of the license.

    H. Review of Final Plans and Specifications

    63. Article 302 requires the City to provide the Commissions Division of DamSafety and Inspections New York Regional Office (D2SI-NYRO) with final contractdrawings and specifications, together with a supporting design report consistent with theCommissions engineering guidelines, and the following plans: a Quality Control andInspection Program; a Temporary Construction Emergency Action Plan; and a SoilErosion and Sediment Control Plan.

    64. Article 303 requires the City to retain a FERC-approved Board of Consultants

    (BOC) to review and oversee the design and construction of the project, due to the projectconstruction in close proximity to the toe of the existing dam.

    65. Article 304 requires the City to provide the Commissions D2SI-NYRO withlicensee-approved cofferdam construction drawings.

    66. Article 305 requires the City to file revised exhibits A, F, G, as applicable, todescribe and show those project facilities as built, for approval.

    67. Article 306 requires the City to file the initial independent consultants inspection

    report within two years of the issuance date of the license.

    68. Article 307 requires the City to file an Owners Dam Safety Program within 90days of the issuance date of the license.

    69. Article 308 requires the City to file a Public Safety Plan within 90 days of theissuance date of the license.

    70. Article 309 requires the City to coordinate with the Commissions D2SI-NYROon any permanent or temporary modification resulting from license environmentalrequirements which may affect project works or operation.

    STATE AND FEDERAL COMPREHENSIVE PLANS

    71. Section 10(a)(2)(A) of the FPA33requires the Commission to consider the extentto which a project is consistent with federal and state comprehensive plans for improving,

    3316 U.S.C. 803(a)(2)(A) (2012).

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    developing, or conserving a waterway or waterways affected by the project.34 Undersection 10(a)(2)(A), federal and state agencies filed 41 comprehensive plans that addressvarious resources in New York. Of these, the staff identified and reviewed 15comprehensive plans that are relevant to this project.35 No conflicts were found.

    CONSERVATION EFFORTS

    72. Section 10(a)(2)(C) of the FPA36 requires the Commission to consider theelectricity consumption improvement programs of the applicant, including its plans,performance, and capabilities for encouraging or assisting its customers to conserveelectricity cost-effectively, taking into account the published policies, restrictions, andrequirements of state regulatory authorities. The City will use a small amount of powerproduced by the Cannonsville Project to offset on-site electricity requirements; however,the bulk of the power will be sold into wholesale markets administered by the New YorkIndependent System Operator, Inc. or disbursed through a power purchase agreement.

    73. Staff concludes that, given the limits of the Citys ability to influence users of theelectricity generated by the project, the City will comply with section 10(a)(2)(C) of theFPA.

    SAFE MANAGEMENT, OPERATION, AND MAINTENANCE OF THE

    PROJECT

    74. Staff reviewed the Citys preliminary plans to build the project as described in thelicense application. The project will be safe when constructed, operated, and maintainedin accordance with the Commissions standards and provisions of this license.

    NEED FOR POWER

    75. To assess the need for power for the Cannonsville Project, staff looked at theneeds in the operating region in which the project is located. The project is located in theNew York Independent System Operator region of the Northeast Power CoordinatingCouncil Region of the North American Electric Reliability Corporation (NERC).37

    34Comprehensive plans for this purpose are defined at 18 C.F.R. 2.19 (2013).

    35The list of applicable plans can be found in section 5.5 of the EA for the project.

    36 16 U.S.C. 803(a)(2)(A) (2012).

    37The NERC is an international regulatory authority established to evaluatereliability of the bulk power system in North America. NERC develops and enforces

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    According to NERC, summer peak demand in the region is expected to increase at anaverage rate of 0.81 percent per year over the 10-year planning period from 2013-2022(NERC 2012). Also, according to NERC, the winter peak demand in the region isexpected to increase at an average rate of 0.43 percent per year over the 10-year planningperiod from 2013-2022 (NERC 2012). Therefore, project power will help meet summer

    and winter peak demand. The project's power and contribution to the region's diversifiedgeneration mix will help meet a need for power in the region.

    PROJECT ECONOMICS

    76. In determining whether to issue a license for a hydroelectric project, theCommission considers a number of public interest factors, including the economicbenefits of project power. Under the Commissions approach to evaluating theeconomics of hydropower projects, as articulated inMead Corp.,

    38the Commission uses

    current costs to compare the costs of the project and likely alternative power with no

    forecasts concerning potential future inflation, escalation, or deflation beyond the licenseissuance date. The basic purpose of the Commissions economic analysis is to provide ageneral estimate of the potential power benefits and the costs of a project, and ofreasonable alternatives to project power. The estimate helps to support an informeddecision concerning what is in the public interest with respect to a proposed license.

    77. In applying this analysis to the Cannonsville Hydroelectric Project, twoalternatives were considered: the Citys proposal, and the project as licensed herein.Under the Citys proposal the project has an installed capacity of 14.08 MW, produces adependable capacity of 1.586 MW, and generates an average of 42,281 MWh ofelectricity annually. The levelized annual cost of operating the project is $4,951,690, or

    $117.11/MWh. When staff multiplies the projects average annual generation by thealternative energy value of $57.85/MWh

    39and credits the dependable capacity at

    reliability standards; assesses reliability annually via a 10year assessment and winter and

    summer seasonal assessments; monitors the bulk power system; and educates, trains, andcertifies industry personnel. NERC is the Electric Reliability Organization for North

    America, subject to oversight by the U.S. Federal Energy Regulatory Commission andgovernmental authorities in Canada (NERC 2012).

    3872 FERC 61,027 (1995).

    39 The alternative energy value was based on an average of the monthly averagevalues for the past year (January 2013 to December 2013) obtained from the New YorkIndependent System Operator Monthly Report dated December 2013. See:

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    $158/kW-year,40 staff gets a total value of the projects power of $2,696,470 in 2014dollars. To determine whether the proposed project is currently economically beneficial,staff subtracts the projects cost from the value of the projects power.41 Therefore, in thefirst year of operation, project power would cost $2,255,220, or $53.34/MWh, more toproduce than the likely cost of alternative power.

    78. As licensed herein with staff measures, the levelized annual cost of operating theproject would be about $4,963,320, or $117.39/MWh. Using the estimated averagegeneration of 42,281 MWh, and 1.586 MW of dependable capacity, the project wouldproduce power valued at $2,696,470, based on an alternative energy value of$57.85/MWh and a dependable capacity value of $158/kW-year. Therefore, in the firstyear of operation, project power would cost $2,266,850, or $53.61/MWh, more toproduce than the likely cost of alternative power.

    79. In considering public interest factors, the Commission takes into account that

    hydroelectric projects offer unique operational benefits to the electric utility system(ancillary service benefits). These benefits include the ability to help maintain thestability of a power system, such as by quickly adjusting power output to respond to rapidchanges in system load, and to respond rapidly to a major utility system or regionalblackout by providing a source of power to help restart fossil-fuel based generatingstations and put them back on line.

    80. Although the analysis shows that the project as licensed herein would cost more tooperate than our estimated cost of alternative power, it is the applicant who must decidewhether to accept this license and any financial risk that entails.

    81. Although staff does not explicitly account for the effects inflation may have on thefuture cost of electricity, the fact that hydropower generation is relatively insensitive toinflation compared to fossil-fueled generators is an important economic consideration forpower producers and the consumers they serve. This is one reason project economics isonly one of the many public interest factors the Commission considers in determiningwhether or not, and under what conditions, to issue a license.

    http://www.nyiso.com/public/webdocs/markets_operations/documents/Studies_and_Reports/Reports/Monthly_Reports/2013/Board%20Monthly%20Report%20December%202013.pdf.

    40The dependable capacity was valued as the estimated current annual cost of

    hydro-equivalent combined cycle combustion turbine capacity according to the AnnualEnergy Outlook for 2013.

    41 Details of staffs economic analysis for the project are included in section 4.0 ofthe EA.

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    COMPREHENSIVE DEVELOPMENT

    82. Sections 4(e) and 10(a)(1) of the FPA42require the Commission to give equalconsideration to power development purposes and to the purposes of energyconservation; the protection, mitigation of damage to, and enhancement of fish and

    wildlife; the protection of recreational opportunities; and the preservation of other aspectsof environmental quality. Any license issued shall be such as in the Commissionsjudgment will be best adapted to a comprehensive plan for improving or developing awaterway or waterways for all beneficial public uses. The decision to license this project,and the terms and conditions included herein, reflect such consideration.

    83. The EA for the project contains background information, analysis of effects, andsupport for related license articles. Based on the record of this proceeding, including theEA and the comments thereon, licensing the Cannonsville Project as described in thisorder would not constitute a major federal action significantly affecting the quality of the

    human environment. The project will be safe if operated and maintained in accordancewith the requirements of this license.

    84. Based on an independent review and evaluation of the project, recommendationsfrom the resource agencies and other stakeholders, and the no-action alternative, asdocumented in the EA, the proposed Cannonsville Project with staff-recommendedmeasures is selected and found to be best adapted to a comprehensive plan for improvingor developing the West Branch of the Delaware River.

    85. This alternative was selected because: (1) issuing a license for the project willserve to provide a beneficial and dependable source of electric energy; (2) the required

    environmental measures will protect fish and wildlife resources, water quality, andhistoric properties; and (3) the 14.08 MW of electric capacity comes from a renewableresource that does not contribute to atmospheric pollution.

    LICENSE TERM

    86. Section 6 of the FPA43provides that original licenses for hydropower projectsshall be issued for a period not to exceed 50 years. The Commissions general policy isto establish 30-year terms for projects with little or no redevelopment, new construction,new capacity, or environmental mitigation and enhancement measures; 40-year terms for

    4216 U.S.C. 797(e) and 803(a)(1) (2012).

    43 16 U.S.C. 799 (2012).

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    projects with a moderate amount of such activities; and 50-year terms for projects withextensive measures.44

    87. This license requires an extensive amount of new construction, including: (1) a12-foot-diameter steel pipe tapped with four individual wye connectors to convey flow to

    individual steel penstocks; (2) a 168-foot-long by 54-foot-wide powerhouse with fourturbine-generator units; (3) an excavated tailrace; (4) a substation; and (5) approximately1,800 feet of transmission lines. Consequently, a license term of 50 years for theCannonsville Project is appropriate.

    The Director orders:

    (A) This license is issued to the City of New York, for a period of 50 years,effective the first day of the month in which this order is issued, to construct, operate andmaintain the Cannonsville Hydroelectric Project. This license is subject to the terms andconditions of the Federal Power Act (FPA), which is incorporated by reference as part ofthis license, and subject to the regulations the Commission issues under the provisions ofthe FPA.

    (B) The project consists of:

    (1) All lands, to the extent of the licensee's interests in those lands, enclosed by theproject boundary shown by Exhibit G, filed February 29, 2012:

    Exhibit G Drawing FERC No. 13287- Description

    Sheet G-1 1 Project Boundary Map

    Sheet G-2 2 Project Boundary Map

    Sheet G-3 3 Project Boundary Map

    Sheet G-4 4 Project Boundary Map

    (2) Project works consisting of: (a) an 175-foot-high zoned earthen embankmentdam with a 2,800-foot-long, 45-foot-wide crest with a crest elevation of 1,175.0 feet

    mean sea level (msl); (b) the 4,670-acre Cannonsville Reservoir, with a usable storagecapacity of 296,840 acre-feet at an elevation of 1,150.0 feet msl; (c) an ungatedspillway45located on the north abutment, with a stone masonry side-channel spillway

    44 See City of Danville, Virginia, 58 FERC 61,318 at 62,020 (1992).

    45The spillway consists of two sections. The section closest to the dam is 240 feet

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    having a total length of 800 feet; (d) a 1,280-foot-long, low-level steel outlet pipeconsisting of an intake structure that diverts water into a 17.5-foot-diameter concreteconduit that reduces down to 11.9 feet in diameter that terminates at a stilling basin thatdischarges into the river; (e) a wye connection from the outlet pipe to a 12-foot-diametersteel pipe supplying the powerhouse; (f) a 168-foot-long by 54-foot-wide concrete

    powerhouse housing four horizontal Francis turbine/generators; (g) twoturbine/generators rated at 1.185 megawatts (MW) and two turbine/generators rated 5.855MW, for a total installed capacity of 14.08 MW; (h) a 1,350-foot-long, 12.47-kilovolt(kV) line to a project step-up substation;46(i) a step-up transformer; (j) a new 460-foot-long, 46-kV aerial line interconnecting with the New York State Electric & GasCorporation transmission system; and (k) appurtenant facilities.

    The project works generally described above are more specifically shownand described by those portions of Exhibits A and F shown below:

    Exhibit A: The following sections of Exhibit A, filed on February 29, 2012, andOctober 31, 2012:

    Section 3, page 4, entitled "Description of Turbines/Generators," of the licenseapplication filed February 29, 2012, and Additional Information Request No. 2: Resultsof Analysis Regarding Transmission Line, filed October 31, 2012.

    Exhibit F: The following Exhibit F drawings, filed May 1, 2012 (F-1 through F-13) inresponse to Additional Information Request No. 1, and October 31, 2012 (Figure 2), inresponse to Additional Information Request No. 2:

    FERC No.Exhibit F Drawing P-13287- DescriptionF-1 5 Existing Overview Plan

    F-2 6 Existing Plan

    F-3 7 Existing Embankment Sections

    F-4 8 Existing Waste Channel Weir

    F-5 9 Existing Waste Weir Typical

    long with a crest elevation of 1,150.0 feet msl and the other section is 560 feet long witha crest elevation of 1,158.1 msl.

    46The first 150 feet would be an underground line, and the remaining 1,200 feet anaerial line.

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    Sections and Granite Details

    F-6 10 Existing Waste Weir and WeirChannel, Low Weir Sections

    F-7 11 Existing Release Water Chamber Plan and Sections

    F-8 12 Existing Emergency Gate Tower,General Arrangement Plan andSections

    F-9 13 Proposed Overview Plan

    F-10 14 Proposed Site Plan

    F-11 15 Proposed Powerhouse Plan

    F-12 16 Proposed Powerhouse Sections

    F-13 17 Proposed Toe Drain FiltersSection

    Figure 2 18 Electrical Site Plan

    (3) All of the structures, fixtures, equipment or facilities used to operate ormaintain the project, all portable property that may be employed in connection with theproject, and all riparian or other rights that are necessary or appropriate in the operationor maintenance of the project.

    (C) The Exhibits A, F, and G described above are approved and made part of thelicense.

    (D) This license is subject to the conditions submitted by the New YorkDepartment of Environmental Conservation under section 401(a)(1) of the Clean WaterAct, 33 U.S.C. 1341(a)(1) (2012), as those conditions are set forth in Appendix A to

    this order.

    (E) This license is also subject to the articles set forth in Form L-11 (October,1975), entitled Terms and Conditions of License for Unconstructed Major ProjectAffecting the Interests of Interstate or Foreign Commerce, (see54 F.P.C. 1799 et seq.),as reproduced at the end of this order, and the following additional articles:

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    Article 201. Annual Charges. The licensee shall pay the United States annualcharges, as determined in accordance with the provisions of the Commissionsregulations in effect from time to time, effective as of the date of commencement ofproject operation, to reimburse the United States for the cost of administration of Part I ofthe Federal Power Act. The authorized installed capacity for that purpose is

    14.08 megawatts.

    Article 202. Exhibit Drawings. Within 45 days of the date of issuance of thelicense, the licensee shall file the approved exhibit drawings in aperture card andelectronic file formats.

    (a) Three sets of the approved exhibit drawings shall be reproduced on silver orgelatin 35 mm microfilm. All microfilm shall be mounted on type D (3-1/4" X 7-3/8")aperture cards. Prior to microfilming, the FERC Project-Drawing Number (i.e., P-13287-5 through P-13287-18) shall be shown in the margin below the title block of the approved

    drawing. After mounting, the FERC Drawing Number shall be typed on the upper rightcorner of each aperture card. Additionally, the Project Number, FERC Exhibit (i.e., F-1,etc.), Drawing Title, and date of this license shall be typed on the upper left corner ofeach aperture card.

    Two of the sets of aperture cards shall be filed with the Secretary of theCommission, ATTN: OEP/DHAC. The third set shall be filed with the CommissionsDivision of Dam Safety and Inspections (D2SI) New York Regional Office.

    (b) The licensee shall file two separate sets of exhibit drawings in electronic raster

    format with the Secretary of the Commission, ATTN: OEP/DHAC. A third set shall befiled with the Commissions D2SI New York Regional Office. Exhibit F drawings mustbe separated from other project exhibits and identified as Critical Energy InfrastructureInformation (CEII) material under 18 C.F.R. 388.113(c) (2013). Each drawing must bea separate electronic file, and the file name shall include: FERC Project-DrawingNumber, FERC Exhibit, Drawing Title, date of this license, and file extension in thefollowing format [P-13287-5, F-1, Existing Overview Plan, MM-DD-YYYY.TIF].Electronic drawings shall meet the following format specification:

    IMAGERY - black & white raster fileFILE TYPE Tagged Image File Format (TIFF), CCITT Group 4RESOLUTION 300 dpi desired (200 dpi min)DRAWING SIZE FORMAT 24 X 36 (min), 28 X 40 (max)FILE SIZE less than 1 MB desired

    Each Exhibit G drawing that includes the project boundary must contain aminimum of three known reference points (i.e., latitude and longitude coordinates, orstate plane coordinates). The points must be arranged in a triangular format for GIS geo-

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    referencing the project boundary drawing to the polygon data, and must be based on astandard map coordinate system. The spatial reference for the drawing (i.e., mapprojection, map datum, and units of measurement) must be identified on the drawing andeach reference point must be labeled. In addition, each project boundary drawing mustbe stamped by a registered land surveyor.

    (c) The licensee shall file two separate sets of the project boundary data in a geo-referenced electronic file format (such as ArcView shape files, GeoMedia files, MapInfofiles, or a similar GIS format) with the Secretary of the Commission, ATTN:OEP/DHAC. The filing shall include both polygon data and all reference points shownon the individual project boundary drawings. An electronic boundary polygon datafile(s) is required for each project development. Depending on the electronic file format,the polygon and point data can be included in a single file with multiple layers. The geo-referenced electronic boundary data file must be positionally accurate to 40 feet in orderto comply with National Map Accuracy Standards for maps at a 1:24,000 scale. The file

    name(s) shall include: FERC Project Number, data description, date of this license, andfile extension in the following format [P-13287, boundary polygon/or point data, MM-DD-YYYY.SHP]. The data must be accompanied by a separate text file describing thespatial reference for the geo-referenced data: map projection used (i.e., UTM, StatePlane, Decimal Degrees, etc.), the map datum (i.e., North American 27, North American83, etc.), and the units of measurement (i.e., feet, meters, miles, etc.). The text file nameshall include: FERC Project Number, data description, date of this license, and fileextension in the following format [P-13287, project boundary metadata, MM-DD-YYYY.TXT].

    Article 203. Headwater Benefits. If the licensees project is directly benefited bythe construction work of another licensee, a permittee, or of the United States on astorage reservoir or other headwater improvement, the licensee shall reimburse the ownerof the headwater improvement for those benefits, at such time as they are assessed. Thebenefits will be assessed in accordance with Subpart B of the Commissions regulations.

    Article 204. Documentation of Project Financing. At least 90 days beforestarting construction, the licensee shall file with the Commission, for approval, thelicensees documentation for the project financing. The documentation must show thatthe licensee has acquired the funds, or commitment for funds, necessary to construct theproject in accordance with this license. The documentation must include, at a minimum,financial statements, including a balance sheet, income statement, and a statement ofactual or estimated cash flows over the license term which provide evidence that thelicensee has sufficient assets, credit, and projected revenues to cover project construction,operation, and maintenance expenses, and any other estimated project liabilities andexpenses.

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    The financial statements must be prepared in accordance with generally acceptedaccounting principles and signed by an independent certified public accountant. Thelicensee shall not commence project construction associated with the project before thefiling is approved.

    Article 301. Start of Construction. The licensee shall commence construction ofthe project works within two years from the issuance date of the license and shallcomplete construction of the project within five years from the issuance date of thelicense.

    Article 302. Contract Plans and Specifications. At least 60 days prior to the startof any construction, the licensee shall submit one copy of its plans and specifications andsupporting design document to the Commissions Division of Dam Safety andInspections (D2SI)-New York Regional Engineer, and two copies to the Commission(one of these shall be to the Director, D2SI). The submittal to the D2SI-New York

    Regional Engineer must also include as part of preconstruction requirements: a QualityControl and Inspection Program, Temporary Construction Emergency Action Plan, andSoil Erosion and Sediment Control Plan. The licensee may not begin construction untilthe D2SI-New York Regional Engineer has reviewed and commented on the plans andspecifications, determined that all preconstruction requirements have been satisfied, andauthorized start of construction.

    Article 303. Board of Consultants. The licensee shall retain a Board ofConsultants (BOC) of three or more qualified, independent engineering consultants toreview the design, specifications, and construction of the project for safety and adequacy.

    The names and qualifications of the BOC members shall be submitted to the Director,Division of Dam Safety and Inspections (D2SI) for approval, with a copy to theCommissions D2SI-New York Regional Engineer.

    Among other things, the BOC shall assess: (1) the geology of the project site andsurroundings; (2) the design, specifications, and construction of the penstock,powerhouse, and electrical and mechanical equipment; (3) instrumentation; (4) theconstruction quality control and construction program; and (5) construction proceduresand progress.

    Prior to each BOC meeting, allowing sufficient time for review, the licensee shallfurnish the following items to the BOC: (1) a statement indicating the specific level ofreview to be performed by the BOC; (2) an agenda; (3) a list of items for discussion;(4) significant events in design and construction that have occurred since the last BOCmeeting; and (5) documentation showing details and analyses of design and constructionfeatures to be discussed. At the same time, the licensee shall submit one copy of theseitems to the D2SI-New York Regional Engineer and two copies to the Commission (oneof these copies shall be to the Director, D2SI).

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    Within 30 days after each BOC meeting, the licensee shall submit to theCommission copies of the BOCs report and a statement of intent to comply with theBOCs recommendations, or a statement identifying a plan to resolve the issue(s). TheBOCs review comments for each portion of the project shall be submitted prior to or

    simultaneously with the submission of the final contract drawings, specifications, andsupporting design report.

    The licensee shall also submit a final report of the BOC within one year ofcompleting construction. The final report shall contain a statement indicating the BOCssatisfaction with the construction, safety, and adequacy of the projects structures.

    Article 304. Cofferdam and Deep Excavation Construction Drawings. Shouldconstruction require cofferdams or deep excavations, the licensee shall: (1) review andapprove the design of contractor-designed cofferdams and deep excavations prior to the

    start of construction; and (2) shall ensure that construction of cofferdams and deepexcavations is consistent with the approved design. At least 30 days before startingconstruction of any cofferdams or deep excavations, the licensee shall submit one copy tothe Commissions Division of Dam Safety and Inspections (D2SI)-New York RegionalEngineer and two copies to the Commission (one of these copies shall be to theCommission's Director, D2SI), of the approved cofferdam and deep excavationconstruction drawings and specifications, and the letters of approval.

    Article 305. As-built Drawings. Within 90 days of completion of construction ofthe facilities authorized by this license, the licensee shall file for Commission approval,

    revised exhibits A, F, and G, as applicable, to describe and show those project facilitiesas built. A copy shall be submitted to the Commissions Division of Dam Safety andInspections (D2SI)-New York Regional Engineer, the Director, D2SI, and the Director,Division of Hydropower Administration and Compliance.

    Article 306. Inspection by Independent Consultant. In accordance with Part 12,Safety of Water Power Projects and Project Works, of the Commissions Regulations, 18C.F.R. Part 12 (2013), the initial independent consultants inspection of the project mustbe completed and the report on the inspection filed within two years of the issuance dateof the license.

    Article 307. Owners Dam Safety Program. Within 90 days of the issuance dateof the license, the licensee shall submit to the Commissions Division of Dam Safety andInspectionsNew York Regional Engineer, an Owners Dam Safety Program which at aminimum shall demonstrate a clear acknowledgement of the dam owners responsibilityfor the safety of the project, an outline of the roles and responsibilities of the dam safetystaff, and access of the dam safety official to the Chief Executive Officer. For guidanceon preparing an Owners Dam Safety Program the licensee should reference the

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    information posted on the FERC website.

    Article 308. Public Safety Plan. Within 60 days from the issuance of this order,the licensee shall submit one copy to the Commissions Division of Dam Safety andInspections (D2SI)-New York Regional Engineer and two copies to the Commission (one

    of these copies shall be a courtesy copy to the Commissions Director, D2SI) of a PublicSafety Plan. The plan shall include an evaluation of public safety concerns at the projectsite, including designated recreation areas, and assess the need for the installation ofsafety devices or other safety measures. The submitted plan should include a descriptionof all public safety devices and signage, as well as a map showing the location of allpublic safety measures. For guidance on preparing public safety plans the licensee canreview the Guidelines for Public Safety at Hydropower Projectson the FERC website.

    Article 309. Project Modification Resulting From Environmental Requirements.Any permanent or temporary modification which may affect the project works or

    operations shall be coordinated with the Commissions Division Dam Safety andInspections (D2SI)-New York Regional Engineer at the beginning of the planning anddesign phase. This includes those modifications resulting from license environmentalrequirements. This schedule is to allow sufficient review time for the Commission toinsure that the proposed work does not adversely affect the project works, dam safety orproject operation.

    Article 401. Commission Approval, Notification, and Filing of Amendments.

    a) Requirement to File Plans for Commission Approval

    Various conditions of this license found in the New York State Department ofEnvironmental Conservations (New York DEC) water quality certification(Appendix A) require the licensee to: (1) prepare plans for approval by the New YorkDEC and implement specific measures without prior Commission approval, or(2) prepare and file plans for Commission approval, but do not specify a due date forfiling. Each such plan shall be submitted to the Commission for approval. These plansare listed below.

    New York DECCertification

    Condition No.

    Plan Name Date Due to Commission

    C1

    Stormwater PollutionPrevention Plan, Best

    Management Practices Plan

    No less than 90 days prior to thestart of construction

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    New York DEC

    Certification

    Condition No.

    Plan Name Date Due to Commission

    CO3

    Stream Flow and

    Temperature MonitoringPlan

    No less than 90 days prior tooperation of the siphons

    The licensee shall include with each plan filed with the Commissiondocumentation that the licensee developed the plan in consultation with the New YorkDEC and the U.S. Fish and Wildlife Service (FWS) and has received approval from theNew York DEC and FWS, as appropriate. The Commission reserves the right to makechanges to any plan submitted. Upon Commission approval, the plan becomes arequirement of the license, and the licensee shall implement the plan or changes in

    project operations or facilities, including any changes required by the Commission.

    (b) Requirement to Notify the Commission of Emergencies and Other Activities.

    Certain conditions of the New York DECs water quality certification inAppendix A require the licensee to notify the New York DEC of modifications to projectoperation for emergencies or other activities and, when possible, receive New York DECapproval prior to modifying project operation for such activities. The Commission shallbe notified prior to implementing such modifications, if possible, or in the event of anemergency, as soon as possible but no later than 10 days after each such incident. Theconditions requiring notification are listed below.

    New York DEC Certification

    Condition No.License requirement

    CO1 Use of siphons: time-of-year restrictions

    CO2 Use of siphons: water temperature restrictions

    (c) Requirement to File Amendment Applications

    Certain conditions in Appendix A by New York DEC contemplate unspecifiedlong-term changes to project operations or facilities, such as modifications to theprojects operational protocol (condition FO1) or implementation of measures to reducefish mortality (condition FSM2). These changes may not be implemented without priorCommission authorization granted after the filing of an application to amend the license.

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    Article 402. Reservation of Authority to Prescribe Fishways. Authority isreserved to the Commission to require the licensee to construct, operate, and maintain, orto provide for the construction, operation, and maintenance of such fishways as may beprescribed by the Secretary of the Interior pursuant to section 18 of the Federal PowerAct.

    Article 403. Wetland Avoidance and Mitigation Plan. Within six months oflicense issuance, the licensee shall file for Commission approval, a wetland avoidanceand mitigation plan. The purpose of this plan is to minimize the effects of projectconstruction on freshwater wetlands, including vernal pool habitat, within the projectboundary.

    The wetland avoidance and mitigation plan shall include: (1) mapping of wetlandareas to be protected during construction of project facilities, including the spoil pile andstaging areas; (2) details on the types of visual signage and other barriers to be used toprotect wetlands; and (3) investigation and mapping of on-site mitigation opportunities

    (e.g., restoration or enhancement of existing emergent wetlands adjacent to the tailracechannel) to mitigate the loss of the 0.57-acre emergent wetland within the tailrace.

    The plan shall be prepared after consultation with the U.S. Army Corps ofEngineers, the U.S. Fish and Wildlife Service, and New York Department ofEnvironmental Conservation. The licensee shall include with the plan documentation ofconsultation, copies of comments and recommendations on the completed plan after ithas been prepared and provided to the agencies, and specific descriptions of how theagencies comments are accommodated by the plan. The licensee shall allow a minimumof 30 days for the agencies to comment and to make recommendations before filing the

    plan with the Commission. If the licensee does not adopt a recommendation, the filingshall include the licensees reasons, based on project-specific information.

    The Commission reserves the right to require changes to the plan. Implementationof the plan shall not begin until the licensee is notified by the Commission that the plan isapproved. Upon Commission approval, the licensee shall implement the plan, includingany changes required by the Commission.

    Article 404. Avian Protection Plan. Withinsix months of license issuance, thelicensee shall file for Commission approval, an avian protection plan. The purpose ofthis plan is to minimize the potential for collision- or electrocution-related bird mortalitydue to contact with transmission lines or related structures.

    The avian protection plan shall include: (1) provisions for the development andimplementation of site-specific measures and practices to reduce bird mortality, includingdesign of structures or line arrangement in accordance with the following raptorprotection guidelines: (a)Avian Protection Plan Guidelines: A Joint Document preparedby the Edison Electric Institutes Avian Power Line Interaction Committee (APLIC) and

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    U.S. Fish and Wildlife Service; (b) APLICs Suggested Practices for Raptor Protectionon Power Lines: The State of the Art in 2006; and (c) APLICsMitigating Bird Collisionswith Power Lines: The State of the Art in 2012, or the most current editions of thesedocuments; (2) provisions for training of the licensees staff to adequately identify anddocument instances of avian mortality due to electrocution by or collision with the

    projects electrical facilities; and (3) a framework for reporting avian mortality to therelevant resource agencies.

    The plan shall be prepared after consultation with the U.S. Fish and WildlifeService and New York Department of Environmental Conservation. The licensee shallinclude with the plan documentation of consultation, copies of comments andrecommendations on the completed plan after it has been prepared and provided to theagencies, and specific descriptions of how the agencies comments are accommodated bythe plan. The licensee shall allow a minimum of 30 days for the agencies to commentand to make recommendations before filing the plan with the Commission. If the

    licensee does not adopt a recommendation, the filing shall include the licensees reasons,based on project-specific information.

    The Commission reserves the right to require changes to the plan. Implementationof the plan shall not begin until the licensee is notified by the Commission that the plan isapproved. Upon Commission approval, the licensee shall implement the plan, includingany changes required by the Commission.

    Article 405. Bald Eagle Conservation Plan. Withinsix months of licenseissuance, the licensee shall file for Commission approval, a bald eagle conservation plan.

    The purpose of this plan is to minimize impacts to bald eagles within the projectboundary.

    The bald eagle conservation plan shall include provisions for implementingspecific practices to monitor bald eagles and avoid bald eagle habitat during projectconstruction, operation, and maintenance, in accordance with the current edition of theU.S. Fish and Wildlife Services National Bald Eagle Management Guidelines, andaddress any additional requirements specified in New York DECs certification.

    The plan shall be prepared after consultation with the U.S. Fish and WildlifeService and New York Department of Environmental Conservation. The licensee shallinclude with the plan documentation of consultation, copies of comments andrecommendations on the completed plan after it has been prepared and provided to theagencies, and specific descriptions of how the agencies comments are accommodated bythe plan. The licensee shall allow a minimum of 30 days for the agencies to commentand to make recommendations before filing the plan with the Commission. If thelicensee does not adopt a recommendation, the filing shall include the licensees reasons,based on project-specific information.

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    The Commission reserves the right to require changes to the plan. Implementationof the plan shall not begin until the licensee is notified by the Commission that the plan isapproved. Upon Commission approval, the licensee shall implement the plan, includingany changes required by the Commission.

    Article 406. Protection of Undiscovered Cultural Resources. If the licenseediscovers previously unidentified cultural resources during the course of constructing,maintaining, or developing project works or other facilities at the project, the licenseeshall stop all land-clearing and land-disturbing activities in the vicinity of the resourceand consult with the SHPO to determine the need for any cultural resource studies ormeasures. If no studies or measures are needed, the licensee shall file with theCommission documentation of its consultation with the SHPO immediately.

    If a discovered cultural resource is determined to be eligible for the National

    Register of Historic Places (National Register), the licensee shall file for Commissionapproval a historic properties management plan (HPMP) prepared by a qualified culturalresource specialist after consultation with the New York SHPO. In developing theHPMP, the licensee shall use the Advisory Council on Historic Preservation and theFederal Energy Regulatory Commissions Guidelines for the Development of HistoricProperties Management Plans for FERC Hydroelectric Projects, dated May 20, 2002.The HPMP shall include the following items: (1) a description of each discoveredproperty, indicating whether it is listed in or eligible to be listed in the National Register;(2) a description of the potential effect on each discovered property; (3) proposedmeasures for avoiding or mitigating adverse effects; (4) documentation of consultation;

    and (5) a schedule for implementing mitigation and conducting additional studies. TheCommission reserves the right to require changes to the HPMP.

    The licensee shall not resume land-clearing or land-disturbing activities in thevicinity of a cultural resource discovered during construction, until informed by theCommission that the requirements of this article have been fulfilled.

    Article 407. Use and Occupancy. (a) In accordance with the provisions of thisarticle, the licensee shall have the authority to grant permission for certain types of useand occupancy of project lands and waters and to convey certain interests in project landsand waters for certain types of use and occupancy, without prior Commission approval.The licensee may exercise the authority only if the proposed use and occupancy isconsistent with the purposes of protecting and enhancing the scenic, recreational, andother environmental values of the project. For those purposes, the licensee shall alsohave continuing responsibility to supervise and control the use and occupancies for whichit grants permission, and to monitor the use of, and ensure compliance with the covenantsof the instrument of conveyance for, any interests that it has conveyed, under this article.If a permitted use and occupancy violates any condition of this article or any other

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    condition imposed by the licensee for protection and enhancement of the project's scenic,recreational, or other environmental values, or if a covenant of a conveyance made underthe authority of this article is violated, the licensee shall take any lawful action necessaryto correct the violation. For a permitted use or occupancy, that action includes, ifnecessary, canceling the permission to use and occupy the project lands and waters and

    requiring the removal of any non-complying structures and facilities.

    (b) The type of use and occupancy of project lands and waters for which thelicensee may grant permission without prior Commission approval are: (1) landscapeplantings; (2) non-commercial piers, landings, boat docks, or similar structures andfacilities that can accommodate no more than 10 water craft at a time and where saidfacility is intended to serve single-family type dwellings; (3) embankments, bulkheads,retaining walls, or similar structures for erosion control to protect the existing shoreline;and (4) food plots and other wildlife enhancement. To the extent feasible and desirable toprotect and enhance the project's scenic, recreational, and other environmental values, the

    licensee shall require multiple use and occupancy of facilities for access to project landsor waters. The licensee shall also ensure, to the satisfaction of the Commission'sauthorized representative, that the use and occupancies for which it grants permission aremaintained in good repair and comply with applicable state and local health and safetyrequirements. Before granting permission for construction of bulkheads or retainingwalls, the licensee shall: (1) inspect the site of the proposed construction, (2) considerwhether the planting of vegetation or the use of riprap would be adequate to controlerosion at the site, and (3) determine that the proposed construction is needed and wouldnot change the basic contour of the impoundment shoreline. To implement thisparagraph (b), the licensee may, among other things, establish a program for issuing

    permits for the specified types of use and occupancy of project lands and waters, whichmay be subject to the payment of a reasonable fee to cover the licensee's costs ofadministering the permit program. The Commission reserves the right to require thelicensee to file a description of its standards, guidelines, and procedures for implementingthis paragraph (b) and to require modification of those standards, guidelines, orprocedures.

    (c) The licensee may convey easements or rights-of-way across, or leases ofproject lands for: (1) replacement, expansion, realignment, or maintenance of bridges orroads where all necessary state and federal approvals have been obtained; (2) stormdrains and water mains; (3) sewers that do not discharge into project waters; (4) minoraccess roads; (5) telephone, gas, and electric utility distribution lines; (6) non-projectoverhead electric transmission lines that do not require erection of support structureswithin the project boundary; (7) submarine, overhead, or underground major telephonedistribution cables or major electric distribution lines (69-kV or less); and (8) waterintake or pumping facilities that do not extract more than one million gallons per dayfrom a project impoundment. No later than January 31 of each year, the licensee shallfile three copies of a report briefly describing for each conveyance made under this

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    paragraph (c) during the prior calendar year, the type of interest conveyed, the location ofthe lands subject to the conveyance, and the nature of the use for which the interest wasconveyed.

    (d) The licensee may convey fee title to, easements or rights-of-way across, or

    leases of project lands for: (1) construction of new bridges or roads for which allnecessary state and federal approvals have been obtained; (2) sewer or effluent lines thatdischarge into project waters, for which all necessary federal and state water qualitycertification or permits have been obtained; (3) other pipelines that cross project lands orwaters but do not discharge into project waters; (4) non-project overhead electrictransmission lines that require erection of support structures within the project boundary,for which all necessary federal and state approvals have been obtained; (5) private orpublic marinas that can accommodate no more than 10 water craft at a time and arelocated at least one-half mile (measured over project waters) from any other private orpublic marina; (6) recreational development consistent with an approved report on

    recreational resources of an Exhibit E; and (7) other uses, if: (i) the amount of landconveyed for a particular use is five acres or less; (ii) all of the land conveyed is locatedat least 75 feet, measured horizontally, from project waters at normal surface elevation;and (iii) no more than 50 total acres of project lands for each project development areconveyed under this clause (d)(7) in any calendar year. At least 60 days beforeconveying any interes