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Home My WebLink About04.16.2024 Board Correspondence - FW_ Compliance Directives issued in FERC P-2107-064From:Clerk of the Board To:Bennett, Robin; Clerk of the Board; Connelly, Bill; Cook, Holly; Cook, Robin; Durfee, Peter; Hancock, LeAnne; Jessee, Meegan; Kimmelshue, Tod; Kitts, Melissa; Lee, Lewis; McDonnell, Susan; Pickett, Andy; Ritter, Tami; Stephens, Brad J.; Sweeney, Kathleen; Teeter, Doug; Zepeda, Elizabeth; Loeser, Kamie Cc:Nevers, Dawn Subject:Board correspondence - FW: Compliance Directives issued in FERC P-2107-064 Date:Tuesday, April 16, 2024 9:53:27 AM Please see Board correspondence - -----Original Message----- From: 'FERC eSubscription' <eSubscription@ferc.gov> Sent: Tuesday, April 16, 2024 8:15 AM Subject: Compliance Directives issued in FERC P-2107-064 .ATTENTION: This message originated from outside Butte County. Please exercise judgment before opening attachments, clicking on links, or replying.. On 4/16/2024, the Federal Energy Regulatory Commission (FERC), Washington D.C., issued this document: Docket(s): P-2107-064 Lead Applicant: Pacific Gas and Electric Company Filing Type: Compliance Directives General Correspondence Description: Letter to Pacific Gas & Electric Company concluding that the 07/28/2023 minimum instream flow variance etc. will be considered violations of the project license for the Poe Hydroelectric Project under P-2107. 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Comments and Suggestions can be sent to this email address: mailto:FERCOnlineSupport@Ferc.gov FEDERAL ENERGY REGULATORY COMMISSION Washington, D. C. 20426 OFFICE OF ENERGY PROJECTS Project No. 2107-064 -- California Poe Hydroelectric Project Pacific Gas & Electric Company April 16, 2024 VIA FERC Service Jan Nimick, President Pacific Gas & Electric Company Mail Code N11E P.O. Box 770000 San Francisco, CA 94177-0001 Subject: Negative effects to foothill yellow-legged frog during July 28, 2023 minimum instream flow variance Dear Mr. Nimick: This letter is in response to your report, filed with the Federal Energy Regulatory Commission (Commission) on March 15, 2024, regarding observed effects on foothill yellow-legged frog (FYLF), Rana boylii, during the 2023 minimum instream flow variance granted for the Poe Hydroelectric Project No. 2107.1 We have determined that your actions of continuing flow reductions to reach your variance flow target despite observations that negative outcomes to FYLF were occurring, and your delay in reporting these outcomes to the Commission, will be considered violations of your project license, as discussed below. Variance Requirements and Background On July 28, 2023, the Commission issued an order approving a temporary variance of the minimum flow requirements under section 401 Water Quality Certification (WQC) condition 1 and U.S. Forest Service 4(e) condition 23 (Part 1), to facilitate recoating and replacement of the seals of the radial bypass gates of Poe Dam. To reach a minimum instream flow target of approximately 100 to 170 cubic feet per second (cfs) until 1Order Issuing New License (165 FERC ¶ 62,172), issued December 17, 2018. Document Accession #: 20240416-3022 Filed Date: 04/16/2024 Project No. 2107-064 - 2 - November 1, 2023 to conduct the work, you proposed to use Spill Recession Protocol 2 of the Long-Term Ramping Rate Plan2 to reduce flows from over 1200 cfs to the minimum instream flow requirement of 500 cfs in the Poe Bypass Reach over a period of approximately 27 days. Then, you proposed to utilize a ramp-down schedule of a 10% reduction in flows every two days until the minimum instream flow variance target was reached. In addition, on July 7, 2023, you submitted a list of six conservation measures designed to monitor, minimize, or avoid effects to FYLF during the variance ramp-down process. On December 28, 2021, the U.S. Fish and Wildlife Service (FWS) proposed to list four distinct population segments (DPS) of FYLF under the Endangered Species Act (ESA). The population of FYLF found in the Poe Bypass Reach is considered part of the North Feather River DPS, proposed to be listed as threatened. Section 7(a)(4) of the ESA directs federal agencies to confer with the Services regarding any proposed action that may affect a proposed listed species or their proposed designated critical habitat. Because this population was proposed to be listed under the ESA at the time the variance was analyzed, the Commission requested an informal conferencing consultation with the FWS regarding effects to FYLF due to the operational changes proposed by the variance on July 18, 2023. On July 27, 2023, the FWS provided their concurrence on our ‘not likely to adversely affect’ determination based on our analyses of potential project effects and the incorporated conservation measures. The FYLF listing rule was finalized on September 28, 2023;3 no critical habitat has yet been designated for this species. Your proposed conservation measures, accepted by the Commission and FWS, state: that ongoing FYLF monitoring had assessed that, of the identified egg masses found in the most recent surveys, most were observed to be hatching or had completed hatching (Conservation Measure 1); that the ramp-down below 500 cfs would not begin until all observed tadpoles were of mobile swimming size (to be able to swim with receding shorelines and avoid desiccation (Conservation Measure 2); and that any new egg masses observed during the final ramp-down period from 500 to 100 cfs will be relocated to deeper water to survive receding water levels (Conservation Measure 6). Further, in ordering paragraph (C) of the July 2023 order approving the variance, we required that in the event of any observed impacts to foothill yellow-legged frog during the variance ramp-down, you immediately halt the ramp-down and contact the FWS and Commission staff to determine how to proceed with flow management at the project. 2 Order Approving Long-Term Ramping Rate Plan Pursuant to Article 401 (182 FERC ¶ 62,173), issued March 27, 2023. 3 See 88 FR 59698 Document Accession #: 20240416-3022 Filed Date: 04/16/2024 Project No. 2107-064 - 3 - FYLF Monitoring Results In your March 15, 2024 filing, you report that Spill Recession Protocol 2 began on June 27 and was completed by July 14, 2023 when instream flows were controlled down to approximately 575 cfs. The ramp-down to meet the variance minimum instream flow target began on August 4, 2023 and was concluded on September 1, 2023 at approximately 170 cfs. In addition to the annual egg mass surveys conducted under the approved Poe Amphibian Monitoring Plan4 that surveyed fifteen subsites, your field crews conducted FYLF egg mass and tadpole surveys during both the Spill Recession Protocol 2 at four subsites and every three days during the variance ramp-down period at two known breeding sites (seven subsites). You considered tadpole groups stranded when the area was dry or drying out, and the tadpoles were stranded, rescued, dead, or otherwise unable to reach edgewater habitat, or when water had fully receded from a known, flagged location, or other evidence that tadpoles had been present (i.e., feces) but current microhabitat conditions made it likely that the tadpoles had not survived. You report that 41 egg masses were found during the regular survey period, most distributed in breeding sites 4 and 7, which were the monitoring sites selected for observation during the variance ramp-down surveys. The first egg mass was estimated to be laid on June 1 and the last was estimated to be laid on June 26, with a breeding season of approximately 25 days. One egg mass was observed to be stranded on June 10 before the Spill Recession Protocol 2 flow reductions had begun, seven egg masses were noted as scoured, and seven egg masses were observed stranded during spill recession reductions (three egg masses initially noted as scoured later also became stranded). At least eleven egg masses were inferred from new tadpole groups seen at subsites where egg masses were not originally detected. Tadpole groups were observed to be stranded in isolated pools either during or by the end of the Spill Recession Protocol 2, with some dead and/or desiccated. You state that the number of stranded tadpoles associated with egg masses are estimated to be in the thousands during the spill recession period but could not be quantified with accuracy. Stranded tadpoles that were able to be captured, were relocated. Once the variance ramp-down began, observations of stranded tadpole groups were recorded almost immediately on August 5. Over the course of the variance ramp- down, 24 individual tadpole groups were marked and followed, eight groups represented inferred egg masses. You estimate that 612 FYLF tadpoles or young-of-the-year (YOY) were observed during the August 2023 variance ramp-down; 529 were found alive in appropriate edgewater habitat; 77 were rescued and moved to nearest suitable habitat; and 4 Order Approving Amphibian Monitoring Plan Pursuant to Article 401 (173 FERC ¶ 62,100), issued November 24, 2020. Document Accession #: 20240416-3022 Filed Date: 04/16/2024 Project No. 2107-064 - 4 - six were found stranded or dead. In total, 18 out of the 24 tadpole groups were considered stranded and at risk during the ramp-down reductions and only six groups were not in danger of becoming stranded before metamorphosing into full YOY before the ramp-down process ended. Violation Discussion and Conclusion Despite the clear directive contained in ordering paragraph (C) of the July 2023 order to halt the variance ramp-down if negative impacts to FYLF were observed, you continued to reduce flows to reach the minimum flow variance target. Furthermore, these negative effects were already occurring during the Spill Recession Protocol 2 flow reduction period, before the variance ramp-down period started, and impacts could have been easily inferred and avoided with your available monitoring data. Finally, your report was not filed with the Commission until more than six months after the initial effects were first observed. While you propose holding a cross-team informational meeting prior to starting any future variances that reduce minimum flows to avoid a similar situation in the future, these protocols do not address the negative effects that have already occurred. Your failure to adhere to the requirements of the July 2023 order during this event will be considered a violation of your project license. This matter will be made a part of your compliance history and be taken into account during our review of any similar future events or variance requests. As a result, you must request consultation with FWS within 30 days of issuance of this letter to discuss the need for mitigation. If FWS believes mitigation is necessary, you must develop a plan and schedule for developing and implementing the mitigation. Within 60 days of this letter, you must file with the Commission documentation of this consultation, and if warranted based on FWS findings, a plan and schedule for implementing the proposed mitigation. You will be responsible for funding and/or implementing the final mitigation plan, including obtaining the required permits and certifications necessary to complete the mitigation plan. In your monitoring report, you recommend supporting the development of the ramping rate plan to reduce the effects of future ramping operations on FYLF breeding and survival; we agree. The Long-Term Ramping Rate Plan is a relatively new operating plan and appears to not be achieving its objectives of minimizing or avoiding effect to FYLF. As a result, you must also consult with FWS to determine if an amendment is necessary to your Poe Long-Term Ramping Rate Plan to further minimize future effects to FYLF breeding and development to metamorphosis stage when employing the Spill Recession protocols and, using this new information, to avoid flow ramping rates that are likely to strand or scour egg masses or tadpole groups. If it is determined, in consultation Document Accession #: 20240416-3022 Filed Date: 04/16/2024 Project No. 2107-064 - 5 - with FWS, that revisions to your ramping rate plan are justified, you must file your revised plan with the Commission for approval. Thank you for your cooperation. If you have any questions regarding this matter, please contact Katie Schmidt at (415) 369-3348 or katherine.schmidt@ferc.gov. Sincerely, Andrea Claros, Chief Aquatic Resources Branch Division of Hydropower Administration and Compliance Cc: VIA Electronic Mail A. Leigh Bartoo U.S. Fish and Wildlife Service Bay-Delta Fish and Wildlife Office 650 Capitol Mall, STE 8-300 Sacramento, CA 95814 aondrea_bartoo@fws.gov Nathan Fisch Water Quality Certification Program California State Water Resources Control Board P.O. Box 2000 Sacramento, CA 95812-2000 nathan.fisch@waterboards.ca.gov Jessica Dyke Water Quality Certification Program California State Water Resources Control Board P.O. Box 2000 Sacramento, CA 95812-2000 jessica.dyke@waterboards.ca.gov Lori Cayo U.S. Forest Service – Plumas National Forest ANDREA CLAROS Digitally signed by ANDREA CLAROS Date: 2024.04.16 09:31:14 -04'00' Document Accession #: 20240416-3022 Filed Date: 04/16/2024 Project No. 2107-064 - 6 - Feather River Ranger District 875 Mitchel Avenue Oroville, CA 95965-4699 lori.cayo@usda.gov Erika Brenzovich U.S. Forest Service – Plumas National Forest Supervisor’s Office 159 Lawrence Street Quincy, CA 95971-6025 erika.brenzovich@usda.gov Dawn Alvarez U.S. Forest Service– Regional Hydropower Assistance Team Pacific Southwest Region 1323 Club Drive Vallejo, CA 94592 dawn.alvarez@usda.gov Kurt Stable U.S. Forest Service – Rocky Mountain Research Station 240 West Prospect Road Fort Collins, CO 80526 kurt.sable@usda.gov Michael Maher California Department of Fish and Wildlife Region 2 FERC Coordinator 1701 Nimbus Road Rancho Cordova, CA 95670 michael.maher@wildlife.ca.gov Beth Lawson California Department of Fish and Wildlife North Central Region – Water Program 1701 Nimbus Road Rancho Cordova, CA 95670 beth.lawson@wildlife.ca.gov Document Accession #: 20240416-3022 Filed Date: 04/16/2024 Document Content(s) P-2107-064_FYLF Effects 2023 Variance Violation.pdf ......................1Document Accession #: 20240416-3022 Filed Date: 04/16/2024