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Niagara Mohawk Power Corporation - Order of Disposition, April 27, 1998

Order of Disposition, April 27, 1998


In the Matter of the Application of the NIAGARA MOHAWK POWER CORPORATION for 401 Water Quality Certifications for Hydroelectric Power Facilities:

(April 27, 1998)


Facility NYSDEC Project No. FERC Project No.
Middle Raquette 6-4099-00007/00001-9 2320
Lower Raquette 6-4009-00006/00001-9 2330

Pursuant to New York State Department of Environmental Conservation ("NYSDEC" or the "Department") Organization and Delegation Memorandum 94-13, I have reviewed the Settlement Offer (dated March 13, 1998) provided by Staff under cover letter dated April 24, 1998. The Settlement Offer is essentially a stipulation that resolves all potential adjudicable issues between Niagara Mohawk Power Corporation (the "Applicant"), Department Staff and all Intervenors in the above referenced mattersIn each of these water quality certification cases, the Intervenors are New York Rivers United, the U.S. Fish and Wildlife Service and the New York Power Authority. The New York Power Authority did not execute the Settlement Offer, but instead provided a letter stating it is not opposed to the settlement. . (Several other entities have executed the Settlement Offer since it also will be submitted to the Federal Energy Regulatory Commission ["FERC"] as a settlement offer in the relicensing proceeding for these hydroelectric power facilities.)

The Settlement Offer also addresses two other projects that are not presently before the Department for Water Quality Certification (although Niagara Mohawk Power Corporation commenced the FERC relicensing process for these facilities in 1996): Carry Falls (FERC Project No. 2060; current license expires January 1, 2001) and Upper Raquette River (FERC Project No. 2084; current license expires January 31, 2002). Niagara Mohawk Power Corporation is expected to begin the New York Water Quality Certification process for the latter two projects in the near future.

The primary provisions of the Middle Raquette River and Lower Raquette River Settlement Offer are:

The signatories agree that the Settlement Offer shall apply to and be binding upon the signatories, their successors and assigns only with respect to the four projects identified, including the Middle Raquette and Lower Raquette River projects.

General agreements regarding flow levels and monitoring; impoundment fluctuations and monitoring; fish passage and protection; recreation, access and monitoring; whitewater releases, access and monitoring; and land conveyances, including conveyance of non-project lands.

General agreements relating to formation of a Raquette River Advisory Council, establishment of a Raquette River Fund and streamflow monitoring.

Agreement that the commitments and undertakings specified in the Settlement Offer will be enforceable by the parties only to the extent the Offer is accepted and approved by the NYSDEC and/or FERC and incorporated into the terms and conditions of the certifications issued by NYSDEC and any new license issued by FERC for the projects. The Settlement Offer specifies the signatories' intent that the Settlement Offer have no precedential effect for other projects or proceedings.

The Settlement Offer fully resolves all possible issues with respect to the above referenced Water Quality Certification applications and represents the litigants' willingness, subject to the terms and conditions of the Settlement Offer, to have the Department issue federal Clean Water Act 401 Water Quality Certificates for the two Niagara Mohawk Power Corporation hydroelectric generating facilities addressed by the Settlement Offer, commonly referred to as the Middle Raquette River and Lower Raquette River projects.

Therefore, consistent with Departmental Organization and Delegation Memorandum 94-13, the Water Quality Certification applications above referenced are hereby remanded to Staff under cover of this memorandum, for further processing and issuance.

Kevin J. Casutto
Administrative Law Judge

DATED: April 27, 1998
Albany, New York

TO: Distribution List

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