The Save Lake Tapps Coalition disbanded in September 2007, after 8 year of community service.  The effort of this coalition is now focused in the Lake Tapps Community Council under a new charter.  All funds remaining in the SLTC account were transferred to the Lake Tapps Community Council.  This website is maintained by a the past secretary of the former Save Lake Tapps Coalition as a method of community education and awareness.  The Save Lake Tapps Coalition was formed on March 8, 1999 in response to an announcement in the media advising that Lake Tapps may be drained as a result of a possible involuntary abandonment of the White River Hydroelectric Project by Puget Sound Energy.  The Coalition was a non-profit community organization consisting of motivated, concerned people who live, use, or own property around our beloved Lake Tapps.   If you have web content concerning the interest of the lake, please forward to: valdez4726@comcast.net

Lake Tapps Community Council General Information Hotline - a community service number:   (253) 891-5460

Police Related Problems on the Lake?  

If Emergency Call:  911

If Non-Emergency Call:  (253) 798-4721 Option '1'

To leave a message on the Pierce County Sheriff Boating Hotline Call:  (253) 798-3300

Save Lake Tapps News 3/7/01

The following document is the Agreement in Principle which has been created as a collaborative effort by the members of the Lake Tapps Task Force.  This document is under review for the many agencies and organizations for signature prior to submittal to the Federal Energy Regulatory Commission (FERC).

(This is an excellent document for the citizen's of Lake Tapps to read and understand the progress and status of the effort to save the lake.)

Section 1. Overarching Issues *

• 1.1 Interrelationship of Issues and Alternatives *

• 1.2 Equitable Participation *

• 1.3 Format/Process *

• 1.4 Timeline Challenges *

• 1.5 Economic Assessment Tools *

• 1.6 Risk Management *

• 1.7 Other Opportunities Not Foreclosed *

• Section 2. Municipal Water Issues and Alternatives *

• 2.1 Assuring Project Support *

• 2.2 Reservoir Effects *

Section 3. Tailrace Barrier Modification/Elimination *

Section 4. Instream Flow Modifications *

Section 5. Ramping Rates *

Section 6. Corps of Engineers Flood Control and Fish Trap *

• 6.1 Assessment of Federal Interests *

• 6.2 Assessment Timing *

• 6.3 Avoided Costs *

• 6.4 Equitable Participation *

• 6.5 Property Rights *

Section 7. State Purchase of Lake Bottom or Lands Associated with the Project *

• 7.1 State Nexus *

• 7.2 Definition of Rights *

• 7.3 Issue of Value of Properties or Lake Bottom *

• 7.4 Issue of Timing *

Section 8. Hatchery Operations *

Section 9. Wildlife Conditions *

Section 10. Community Participation and Control *

• 10.1 Role for the Community in Relation to the Responsibility of Other Stakeholders *

• 10.2 Assessment of and Process to Evaluate Long-Term Certainty *

• 10.3 Assessment of and Process to Resolve Acceptable Reservoir Levels and Fluctuations *

• 10.4 Assessment of and Process to Resolve Local Control *

• 10.5 Studies to Determine Potable Water Options Affect on Lake Recreation and the Lake Tapps Community *

• 10.6 Ecological Enhancements *

• 10.7 Long Term Project/Community Economic Relationship *

Section 11. Public Ownership *

Section 12. FERC Terms *

• 12.1 Past License Fee Forgiveness *

• 12.2 Timing of Settlement Effectiveness *

• 12.3 License Issuance and Commencement and Completion of Construction *

• 12.4 Miscellaneous Issues *

Section 13. Identification of Milestones *

Section 14. Miscellaneous *

• 14.1 Interpretation *

• 14.2 Not a Contract; No Partnership *

• 14.3 Terms and Conditions Negotiated *

• 14.4 Addresses, Counterparts, etc. *

• 14.5 Dispute Resolution *

Section 15. Withdrawal *

AGREEMENT IN PRINCIPLE

This Agreement in Principle ("AIP") is made by and among participants in the Lake Tapps Task Force ("Task Force"). The signatories are sometimes collectively referred to hereinafter as the "Parties." An entity is not a "Party" to the AIP simply by virtue of its status as a participant on the Task Force. This AIP is made with reference to the following facts:

RECITALS

A. PSE has applied for a license application under the Federal Power Act, 16 U.S.C. § 793 et. seq., for its White River Hydroelectric Project, FERC No. 2494 (the "Project"). In December 1997, the Federal Energy Regulatory Commission (the "Commission") issued a license for the Project.

B. The Commission in its Order Issuing Original License ("FERC's License Order"), 81 FERC ¶ 61,354 (December 19, 1997), found that, "based on current costs, the project as licensed would cost $6,580,000 annually (19.8 mills/kWh) more than the current cost of alternative power." PSE has not accepted the license.

C. Each of PSE, NMFS, USFWS, WDFW and WDOE requested rehearing of FERC's License Order. .

D. The Task Force was formed in April of 1999. It adopted as its purpose to work through a collaborative process to reach a lasting solution that preserves the Lake Tapps reservoir and takes into account the interests of all Task Force members.

E. On June 30, 1999, PSE and other participants in the Task Force submitted to the Commission a "Joint Motion for Temporary Stay of License and Proceedings and Other Actions to Facilitate Collaborative Settlement Process" to obtain time for stakeholders and intervenors in the White River Project to work together in a collaborative process to resolve issues surrounding the project and the Lake Tapps reservoir, conditionally supported by NMFS, USFWS, WDFW, WDOE and the Muckleshoot Tribe.

F. By "Order Granting Stay," 88 FERC ¶ 61,143 (July 30, 1999)("FERC's Stay Order"), the Commission granted a two-year stay of FERC's License Order and the rehearing proceedings.

G. In August of 1999 the Task Force adopted a Collaboration and Work Plan setting forth the ground rules and organizational structure for collaboration.

H. In December of 1999 the Task Force approved the submittal to the Commission of a 94-page evaluation describing 34 separate components relevant to a long-term settlement as part of the Task Force's quarterly report.

I. In January of 2000 the Task Force held a workshop to prioritize the areas of inquiry for focusing Task Force time and resources.

J. In February of 2000 the Task Force approved a prioritization of areas of inquiry, identifying 13 as most active for moving forward.

K. In April of 2000 the Task Force agreed to pursue an agreement in principle and identified leads for each most active areas of inquiry. The Task Force also agreed to support PSE's moving forward to apply for new water rights to allow water diverted into the Project to be withdrawn and made available for municipal water purposes. The Department of Ecology, the permitting authority, has not taken a position either supporting or opposing the application.

L. In May of 2000 the leads reported on issues to resolve as part of reaching an agreement in principle.

M. In June of 2000, the Task Force adopted a resolution identifying final issues and alternatives for reaching an agreement in principle.

N. In light of the City of Auburn's concerns pertaining to the City of Auburn's pending water right application, the City of Auburn has declined participation as a signatory Party to this AIP at this time.

O. The Parties are continuing their efforts to investigate, negotiate and work to develop and draft a settlement agreement to be submitted to the Commission as a formal offer of settlement incorporating the principles set forth below, and addressing related issues to be resolved through further work of the Task Force and the Parties. The Parties believe that this AIP represents an historic achievement of which all the Parties are proud.

AGREEMENT IN PRINCIPLE

The Parties agree in principle to use best efforts to cooperatively implement this AIP and to continue to work through a collaborative process to reach a lasting solution that preserves the Lake Tapps reservoir and takes into account the interests of all participants in the Task Force. The Parties acknowledge that the principles stated below are general statements of understandings that the Parties hope to reflect in a formal offer of settlement to be submitted to the Commission. However, this AIP (including, without limitation, any and all attachments) is made (and filed with the Commission) without prejudice as to any rights or interests of any and all persons or entities participating in this or in any other proceeding; and, in all respects, this AIP (including, without limitation, any and all attachments) is made and filed with a full reservation of rights by and on behalf of any and all persons and entities participating in this or in any other proceeding. Nothing in this agreement shall be construed to limit any governmental agency from complying with its obligations under applicable laws or from considering public comments received in any environmental review or regulatory process. This Agreement shall not be interpreted to in any manner predispose or predetermine the outcome of any permit or environmental review process.

Overarching issues important to developing a formal offer of settlement for submission to the Commission include the following:

1.1.1 The Parties intend to propose a settlement to the Commission that will involve modification of the conditions of FERC's License Order and will allow the Project to be operated as an economically sound hydroelectric generating facility.

1.1.2 The Parties also intend to propose a settlement that will adequately and equitably protect, mitigate damages to and enhance fish and wildlife resources affected by the project in accordance with standards contained in applicable laws including without limitation the Federal Power Act ("FPA") and Endangered Species Act ("ESA"), and increase recreational, environmental, and other public benefits provided by the Project.

1.1.3 A formal offer of settlement is anticipated to include, but need not be limited to, the following substantive elements: 1) minimum instream flows; 2) ramping rates; 3) tailrace barrier requirements; 4) past license fee forgiveness; 5) reservoir level refill and maintenance (reflecting community desires and commitment of resources); 6) construction timing for the diversion facility and other project features; 7) a Corps process for reaching decision on equitable federal participation; and 8) a process for renegotiation of wildlife conditions.

1.1.4 It is anticipated that several elements of the Parties' formal offer of settlement to the Commission will not involve license conditions, but will nevertheless be critical to an overall settlement.

1.1.5 It is anticipated that the formal offer of settlement will propose one or more provisions to allow a continuation of collaboration among various Task Force participants as to various issues (at least some of which may be proposed to the Commission for inclusion as license conditions).

The formal offer of settlement will reflect, and should be perceived to reflect, fair and equitable participation.

There are issues related to the process for reaching settlement.

1.3.1 Many of the points of agreement set forth below involve resource agencies. These agencies must act in a manner consistent with their legal obligations. Resource agency commitments are contingent upon satisfaction of legal obligations such as environmental review, permitting requirements and due process. Such agencies shall, concurrently with the Task Force process, undertake or continue to pursue such processes, using best reasonable efforts consistent with agency staffing and other internal resource constraints to complete them in a timely manner and timeframe consistent with FERC's Stay Order. The Parties acknowledge that these legal and resource constraints, as well as similar constraints of other parties (e.g., representatives of the Lake Tapps community) may require good faith accommodations by all Parties from time to time if a formal offer of settlement is to be achieved or prevent actions and decisions being made consistent with such timeframe.

1.3.2 Certain points of agreement are or will be specific to individual stakeholders and have not been and will not need to be agreed to by all Parties.

The formal offer of settlement will need to recognize and account for the temporal relationship between the various components. For example, the success of some components, such as the Corps' participation, and such as reevaluation of wildlife conditions, will require additional study to build an adequate record and make a sound decision.

The Parties are continuing to work to develop economic tools to use in assessing economics of the Project and the relative potential contributions of various components to a solution. This work has lead to consensus with respect to some basic economic principles. If PSE is to be the Licensee, PSE must make a business decision to accept the license in view of what appear to be the net economic costs and benefits. Others in the Task Force being asked to make equitable financial contributions to the solution must have an understanding of the relative contribution other components might provide to an overall settlement. As with any economic assessment, there are likely to be a relatively large margin of error and a significant possibility of disagreement as to assumptions and estimates in the tools the Task Force develops. Since reasonable people may disagree on the assumptions and estimates, the tools should accommodate assessment of a range of possibilities.

Each party or group that gets benefits from the settlement should assume a commensurate level of responsibility for the economic viability of the Project. Through the Task Force process, "risks and risk owners" should be identified, and the formal offer of settlement should avoid shifting risks from risk owners to others. In addition, tools should be developed that help the various risk owners manage risk appropriately.

Nothing in this AIP is intended or shall be construed to foreclose any Party or other person from presenting to the Task Force, or the Task Force from pursuing, any other opportunity that may help meet the mission of the Task Force, including, without limitation, the possibility of public acquisition and ownership of the Project.

PSE has applied for and will pursue applications for new water rights to allow water diverted into the Project to be withdrawn and made available for municipal water purposes. If approved as applied for, such water rights would:

l incorporate minimum flows and ramping rates determined in this proceeding;

l offer municipalities in the basin the first opportunity to develop the resource, and offer the opportunity to regional purveyors to develop the right for greater regional needs (needs are anticipated both within the basin and in the greater Puget Sound region); and

l facilitate a subsequent basin planning process.

If new water rights are approved and have sufficient economic value, the formal offer of settlement is anticipated to propose that the Commission find such rights with respect to and use of the water to be consistent with licensed operation of the Project.

The formal offer of settlement will propose that this asset (e.g. the new water rights) stays with the Lake Tapps reservoir.

The formal offer of settlement will describe any constraints with respect to the water right, if any, determined appropriate to assure that the Lake Tapps reservoir remains a "viable lake" and suitable fish habitat. (See Section 10.3.) To receive the support of the Lake Tapps community, the development and use of such a right must not materially constrain recreational reservoir use or the use and enjoyment of adjacent properties.

The alternative under consideration is to develop a tailrace barrier proposal through consensus that will cost less. Resource agencies conceptually support the search for cost-effective alternatives as long as they are protective of fish--investigation of alternatives is underway. PSE shall develop and, with resource agency consensus, propose such an alternative to the Commission in the formal offer of settlement as a modified license condition. Other alternatives will not be pursued at this time, so that efforts in the near term can focus on development of such a consensus proposal.

The nexus between a recognized federal interest (e.g., the Corps' fish trap) and the White River project will be further clarified. Federal interests may include ESA Section 7 obligations to preserve current fish passage capabilities around Mud Mountain Dam, preservation of the hatchery at river mile 24, federal flood control interests and other interests. The process for identification of federal interests will take place as part of a General Investigation (GI) New Start Grant to commence upon federal funding as part of the 2001 Federal Budget. This AIP is not intended to constrain the scope of work in the GI study.

The timing for the Corps standard process using a GI study of reconnaissance ("GI Reconnaissance Study") through feasibility studies to actual commitment of funds for a particular project is in excess of five years and requires four separate acts of federal legislation to authorize and appropriate funds for feasibility studies and construction. The Task Force has been given a stay of only two years to reach settlement--with approximately six months remaining. The formal offer of settlement will include a proposal to equitably reconcile these timeframes.

Preservation of the Corps' fish trapping capabilities at the river mile 24 diversion is thought to be the most cost-effective way to transport fish to the upper watershed. The Federal Government can obtain long-term certainty for the preservation and enhancement of fish trapping capabilities through participation in a settlement agreement and/or a modification of the current fish trap agreement. A risk analysis should be conducted as part of the GI Reconnaissance Study to determine the Federal Government's risk of failing to meet fish passage obligations should the diversion dam, for any reason, cease to exist or function as a barrier to upstream migration. An analysis of the costs and benefits of maintaining the fish trap at its current location versus relocating the trap at a different location should also be part of the study.

The Corps must maintain fish passage facilities to satisfy its legal obligations, including ESA and the 1948 Fishway Agreement. It is anticipated as part of the formal offer of settlement that, following the Corps' completion of the GI Reconnaissance Study with positive recommendations and necessary approvals, the Corps will pursue a feasibility study and additional construction legislation to permit the Corps to equitably participate in funding capital, operating and maintenance expenses of a potential additional federal project on the White River.

If the Corps is authorized to fund construction of a new diversion dam, it is anticipated that PSE would grant to the Corps (with PSE reserving rights to the licensee to operate the Project consistent with the requirements of the FPA) additional property rights. Without limiting the generality of the foregoing, the diversion dam may be owned by the United States of America pursuant to an additional federal project on the White River.

To equitably participate in a long-term solution, the State Legislature may authorize purchase of lands and/or rights or interests in properties that are a part of, or are associated with, the White River Project. It may include the property underlying the Lake Tapps reservoir so as to secure long-term certainty against a change of use of the reservoir property (property below the 545 msl line). A formal offer of settlement should define resolution of the following matters:

The State would participate in an assessment of the regional recreational, aesthetic, environmental and economic value of Lake Tapps reservoir and the wildlife lands associated with the White River Project.

Under the Federal Power Act (FPA), the licensee must retain all rights needed for operation of the project. PSE must retain sufficient rights so that the State's ownership is consistent with FPA requirements. It is anticipated that any form of State property ownership proposed would be such as to avoid a requirement that the State become a Project co-licensee.

An independent real estate appraiser or other reliable objective source of information would be used to confirm the fair value of the rights to be acquired at their highest and best use, with assumptions recognizing the current status of the Project and licensing proceeding.

If this component is to move forward, this information needs to be developed as soon as practicable to permit a request for budget authorization to be submitted in the 2001 legislative session.

The Task Force has invited the Muckleshoot Tribe to participate in discussions concerning the possible role of hatchery operations in settlement. The Task Force remains interested in a dialogue with the Muckleshoot Tribe.

In 1990, PSE proposed to the Commission, with the support of WDFW and USFWS a Wildlife Management Plan. The current license incorporates a 1990 Wildlife Management Plan as a license condition. The 1990 plan was the result of consultation among PSE, WDFW and USFWS in response to a directive of the Commission. In the Task Force, questions have arisen as to whether the commitments made in the plan are appropriate, necessary and/or legally required.

There is a willingness to reopen the wildlife mitigation and enhancement recommendations based upon the results of a Habitat Evaluation Procedure developed using best available science. The Task Force has agreed to present a white paper proposing a process and baseline consistent with current FERC requirements. Further discussion with all relevant parties is expected later this winter to reach agreement on the parameters of a study as well as on how the information will be used to measure appropriate mitigation and enhancement for the proposed 50 year FERC license. While the process is agreeable, there is no substantive agreement as to the outcome. While the lands have significant economic value, a number of Task Force participants strongly desire preservation of the wildlife benefits that the lands addressed in the 1990 Wildlife Management Plan provide. The Task Force will continue to pursue collaborative resolution of these issues in a way that preserves the Lake Tapps reservoir and takes into account the interests of all participants in the Task Force.

The Lake Tapps Community needs to have an appropriate and equitable role in the settlement of the issues surrounding the Lake Tapps/White River Project. However, all stakeholders including the Lake Tapps Community who receive a direct or indirect benefit from the Project must assume responsibility for benefits received.

It is anticipated that the formal offer of settlement will describe agreement between the Lake Tapps Community and PSE regarding the desirable balance between reservoir use for recreation and aesthetics, for environmental protection, and for revenue preservation and enhancement.

• 10.2 Assessment of and Process to Evaluate Long-Term Certainty

To receive the support of the collective Lake Tapps Community, any solution must assure the long-term viability of Lake Tapps.

• 10.3 Assessment of and Process to Resolve Acceptable Reservoir Levels and Fluctuations

Members of the Lake Tapps Community have expressed differing views of what would be a viable lake. PSE has historically maintained the reservoir at "normal full pool" [542 ft msl or greater] from Memorial Day through Labor Day. The Lake Tapps Community and PSE have a difference of opinion as to PSE's current obligation to maintain a "normal full pool" from Memorial Day through Labor Day. Management of reservoir levels throughout the year for generation purposes has direct bearing on Project economics. The Lake Tapps Community desires a lake-level fluctuation plan that assures the recreational and ecological viability of Lake Tapps. Members of an assembled group representing all seven long-time existing neighborhood resident associations, Friends of Lake Tapps, and Save Lake Tapps Coalition met recently with representatives of PSE to discuss reservoir levels. At that meeting, the Puget Sound Energy representatives discussed the "Lake Tapps Reservoir Management" memorandum [dated 03/18/00]. This memorandum describes a potential "rule curve" addressing the possibility of keeping the reservoir at "normal full pool" for extended periods of time. This rule curve addresses: Recreation, Flood Control, Dock Repair and Maintenance, Water Quality - Eurasian Watermilfoil Control, Maintenance of the Penstock Intake, and Drawdown for Water Supply.

Milfoil control drawdown is the principle driver of reservoir drawdown under this rule curve. Without taking Project economics into consideration "normal full pool" levels could typically be sustained for a 6½-month period beginning April 1st and running through October 15^th assuming adequate inflow conditions. Such a rule curve could result in a negative impact on Project economics. The Lake Tapps Community and PSE have a difference of opinion regarding the likelihood or degree of any such impact.

The assembled representatives voted to support efforts to achieve this rule curve as a goal of the neighborhood residences. These dates would maintain recreational opportunity and water quality provide time for dock maintenance, bulkhead maintenance, and water milfoil control. The neighborhood and lake user community would also like to explore possible aesthetic and ecological improvements. Responsibility for the economic consequences of maintaining the reservoir in accordance with the rule curve is an unresolved issue.

Participants in the Task Force, including the neighborhood residents, have agreed in principle to participate equitably in components of a solution making the Project an economically sound hydroelectric generating facility. The costs and benefits associated with any constraints on reservoir levels must be accounted for to achieve such a solution. On this principle, PSE has no objection to considering a proposal to extend the "normal full pool" period of reservoir operations. PSE is also willing to consider community "in kind" contributions. From PSE's perspective, the more financial responsibilities the neighborhood and community assumes to sustain the Project, the more benefits they should receive. From the Lake Tapps Community's perspective, the Lake Tapps Community desires to limit or avoid assuming direct financial responsibility to sustain the Project.

• 10.4 Assessment of and Process to Resolve Local Control

Pursuit of a public or community entity to represent the interests of the Lake Tapps Community is necessary to accomplish a number of objectives related to the settlement of the White River/ Lake Tapps FERC License process, including but not limited to:

* A boat management plan that includes boating safety;

* Contractual relations and commitments between the homeowners, PSE, the Commission, and others;

* Wildlife and environmental protection and enhancement in and around the lake;

* Water level control;

* Fluctuation level control to enhance revenue that is consistent with recreational use;

* Improved Law Enforcement;

* Communication between PSE and the Lake Tapps Community;

* Lake Area Improvements;

* Fees scheduled and collected for recreational use for non participators in the agreement; and

* Additional milfoil control if needed.

The Lake Tapps Community will need time to develop consensus on and implement the foregoing, particularly if a public vote or other processes will be needed to form or fund the desired entity, or for it to enter into binding contracts or make other binding commitments anticipated by the formal offer of settlement. The formal offer of settlement shall reflect resolution of the foregoing matters, and any such processes, timelines and contingencies.

The Lake Tapps Community has a study in process for selecting a public entity which will represent the people in the Lake Tapps area. There are several options for this public entity which must be looked at in the next few months. The public entity selected may be all or part of the successor to the Lake Tapps Task Force.

• 10.5 Studies to Determine Potable Water Options Affect on Lake Recreation and the Lake Tapps Community

The Lake Tapps Community needs to be satisfied that the Potable Water Option will not put any significant restrictions on the recreational use of the lake. The Lake Tapps Community concerns include, but are not limited to: a) restricting or limiting the use of internal combustion motors on the lake, b) restricting other recreational uses of the lake, c) providing restrictions on drainage and runoff which may lead to storm sewers or other expensive fixes, d) requiring sewer hookups, e) others. The Lake Tapps Community recognizes that there are other legal authorities that govern water quality including the federal and state Clean Water Acts.

• 10.6 Ecological Enhancements

Puget Sound Energy and the Lake Tapps Community desire to have further discussion to explore ways that improvements to the recreation, ecology, environment and aesthetic aspects of the reservoir can be accomplished.

• 10.7 Long Term Project/Community Economic Relationship

As stated in Section 2.1, the formal offer of settlement will propose that this asset stays with Lake Tapps ("this asset" being a reference to the proposed new 100 cfs water right). PSE and the Lake Tapps Community desire to have further discussion leading to an agreement whereby investments made by the community during times of economic shortfall can be traded for commitments on long term benefits to be returned to the Lake Tapps Community when the Project is economical.

Public ownership of the project may be a potential solution in the event that other efforts fail to meet PSE’s financial criteria. The homeowner representatives conducted a study of ownership alternatives and have concluded that public ownership could be structured to meet the interests of the community, PSE and other stakeholders. A number of alternatives may be explored including: (a) city ownership with or without annexation of the area surrounding the reservoir, (b) a partnership among cities, (c) a consortium of water purveyors in partnership with city ownership of the reservoir and power station, or (d) a power generation cooperative. At this time no municipality or public body has declared itself willing to pursue this option. The homeowner representatives are continuing to study this alternative.

Elements of the Parties' conception of a settlement include, without limitation:

Consistent with City of Centralia, 87 FERC ¶ 61,383 (June 30, 1999), [reversed on other grounds, City of Centralia v. FERC, 213 F.2d 742 (D.C. Cir. 2000), the Parties intend to propose to the Commission in the final offer of settlement that Article 202 of FERC's License Order be deleted.

• 12.2 Timing of Settlement Effectiveness

It is anticipated that many of the Parties (e.g. various agencies) may not have completed processes that must precede binding participation in the settlement to be proposed to the Commission. The Parties intend to propose to the Commission in the formal offer of settlement terms that will avoid any Party's irretrievable commitment of resources or any other prejudice to any such Party unless and until all of the Parties will be bound [in all material respects] to the commitments to be set forth in the formal offer of settlement.

• 12.3 License Issuance and Commencement and Completion of Construction

Consistent with Section 13 of the Federal Power Act, 16 U.S.C. § 806, the formal offer of settlement may propose that Article 301 of FERC's License Order be amended to permit the licensee to construct the new powerhouse and related facilities (which would, in the estimation of the Commission, generate electricity at a cost that exceeds the current cost of available alternative resources), if and when, but not until, the new powerhouse and related facilities portion of the development authorized by the license are necessary in the business judgement of the licensee to supply the reasonable electricity demands of the market.

• 12.4 Miscellaneous Issues

PSE and other Parties raised various issues in their rehearing requests not otherwise addressed above (e.g. the gauging requirements of Article 406). It is anticipated that the formal offer of settlement will propose a resolution of each of those issues for the Commission's consideration.

The Parties shall use their best reasonable efforts to perform their respective obligations with respect to implementation of the schedule set forth in below (recognizing that all Parties, and particularly resource agencies, have conflicting obligations that may constrain their abilities to meet these obligations). The schedule incorporates targeted completion dates for various tasks of various Parties or the Task Force set forth in the Joint Motion or herein:

• December 31 Submit six Month Status Report to FERC

2001

• March 30 Submit preferred resolution to FERC. As a substantial progress benchmark for purposes of NMFS and USFWS continued support of the stay, draft settlement agreement prepared and circulated.

• June 30 Parties submit a formal offer of settlement to the Commission.

[Note: depending upon the development and role of, and progress toward, various components anticipated to be important to settlement, it may be appropriate to request an extension of the stay from the Commission.]

Attachment 3 is a draft timeline of anticipated events. The Parties intend to develop a progress schedule for tasks set forth in AIP that are conditions precedent to a formal offer of settlement, to the extent known and develop mechanism to track, identify and call to Parties' attention matters that may create a need for extra time to assess and resolve.

The headings of paragraphs and subparagraphs of this AIP are for convenience of reference only and are not intended to restrict, affect or be of any weight in the interpretation or construction of the provisions of such paragraphs or subparagraphs. This AIP shall be construed as a whole, and all provisions and parts of this AIP are intended to be correlative and complementary.

• 14.2 Not a Contract; No Partnership

This AIP is not enforceable as a contract against any Party. It shall not be interpreted or construed to create an association, joint venture or partnership between any Parties, to bind any Party or to create any third party beneficiaries.

• 14.3 Terms and Conditions Negotiated

The provisions of this AIP have been negotiated by the Parties with the representation of legal counsel. No language in this AIP shall be construed against any Party based upon an assertion that such party drafted such language.

• 14.4 Addresses, Counterparts, etc.

14.4.1 This AIP is in writing, and duplicates of it have been delivered to the Parties.

14.4.2 This AIP is made and executed in separate counterparts by the Parties at the time and places set forth in the execution blocks of this AIP.

14.4.3 The Parties and their addresses as of the date of this AIP are as set forth on Exhibit __.

• 14.5 Dispute Resolution

The formal offer of settlement shall propose one or more alternative dispute resolution ("ADR") provisions, including, without limitation, any ADR provisions proposed to be incorporated into FERC's License Order.

In the event that any Party to this AIP believes that substantial progress is not being made in the collaborative process, when measured against the schedule set forth herein, such Party may withdraw from this AIP, effective upon notice to the Task Force and the other Parties. However, notwithstanding such withdrawal, this AIP shall not terminate. Rather, it shall remain effective as among the Parties that have not withdrawn. If the Parties agree that substantial progress has been made but a formal offer of settlement has not yet been achieved, the Parties may (but shall not be obligated to) agree to an extension of this AIP.

IN WITNESS WHEREOF, the Parties have caused this AIP to be duly executed as of this ________ day of _____________, 2000.

AIP Signature Page

United States Department of Commerce
National Marine Fisheries Service ("NMFS")


United States Department of Interior
U.S. Fish and Wildlife Service ("USFWS")


Bureau of Indian Affairs ("BIA")


United States Department of the Army
U.S. Army Corps of Engineers (the "Corps")


Office of United States Senator Patty Murray


Office of United States Senator Slade Gorton


Office of United States Representative Jennifer Dunn


Washington State Senator Pam Roach


Washington State Representative Mike Stensen


Washington State Representative Chris Hurst


State of Washington
Washington State Department of
Ecology ("WDOE")


Washington State Department of
Fish and Wildlife ("WDFW")


The Muckleshoot Tribe of the
Muckleshoot Indian Reservation (the "Tribe")


City of Enumclaw,
a municipal corporation of the State of Washington


City of Buckley,
a municipal corporation of the State of Washington


Snag Island Maintenance Association,
a Washington not-for-profit association

Save Lake Tapps Coalition
© 1999