report and reports by consulting engineers, examined the project design drawings, and conducted two recent physical inspections of the dam and other project works. The staff reports that there is some minor concrete spalling on the dam's exterior slabs, power canal walls, gate structure abutment, and powerhouse exterior walls. In addition, the staff observed some groundwater seepage near the left abutment of the dam. The staff also notes that there are minor temperature cracks at the top of the dam buttresses, but that those cracks have been monitored and have not changed in more than a quarter of a century.

Staff's investigation, however, showed the dam to be safe against sliding or overturning when subjected to maximum hydrostatic forces. Its report also indicates that the spillway is capable of withstanding a flow of 13,000 cfs, or 1.5 times the maximum flow of record. Even in the event of a greater flood, which would cause partial failure of the dam, staff reports there would be no significant additional hazard to life or property downstream.

On the basis of the record here, including staff's analysis, we conclude that the project works of the proposed Colliersville Project as they will be rehabilitated are structurally sound, safe, and adequate, with certain remedial measures. As the staff has recommended, we are including Article 21 in this license to ensure repair of all spalled concrete and correction of ground water seepage in the left bank abutment. Article 21 also requires continued monitoring of the buttress cracks to detect any changed conditions.

Recreation Resources

Interior recommended that Stapenhorst be required to prepare an Exhibit R, and that a county park proposal studied by the Soil Conservation Service in 1969 should receive further consideration. Interior noted that the Statewide Comprehensive Outdoor Recreation Plan identifies needs in the project area for additional water-oriented recreation. Interior also stated that financial assistance could be made available through the Land and Water Conservation Fund. Stapenhorst responded by stating that it would be willing to acquire 10 acres of land along the lake, opposite the powerhouse, and would discuss with Interior the best possible use of the land for public recreation.

Our staff's report indicates that acquisition and development of a 10-acre shoreline tract would adequately provide for public recreation at this minor project at this time. In light of these facts and the possibility that public agencies would develop the 10-acre site with public funding, we will not require Stapenhorst to file an Exhibit R. This accords with our policy of not requiring Exhibit R's for minor projects. Instead, we are requiring Stapenhorst to acquire about 10 acres of land for public recreational purposes on Goodyear Lake, and to consult and cooperate with Interior and other appropriate agencies in the development of

the tract for public use. We reserve the right to require Stapenhorst to make reasonable modifications to the project, if necessary or desirable for public recreation in the future.

Other Environmental Considerations

The major project works for the Colliersville Project have been in existence since 1908. Rehabilitation of the powerhouse, dam, and power canal would result in a slight and temporary increase in the downstream turbidity. Operation of the project would not result in an appreciable change in river conditions. Based on the application, agency comments, and our staff's independent analysis, we conclude that the issuance of this license, as conditioned below, would not constitute a major Federal action significantly affecting the quality of the human environment.

License Term

Our staff recommends that a license be issued for a term of 40 years. Staff believes the proposed rehabilitation of this project, using an existing dam, is similar to the relicensing of a project for which a moderate amount of redevelopment or new construction is proposed. We agree that a 40-year license term is reasonable in light of the scale of redevelopment proposed and we shall adopt staff's recommendation.

On the record in this proceeding we conclude that issuance of this license is in the public interest and in conformance with all applicable provisions of the Federal Power Act.

The Commission orders:

(A) This license is issued to F. W. E. Stapenhorst, Inc. (Licensee) for a period of 40 years, effective the first day of the month in which this order is issued, for the construction, operation, and maintenance of Project No. 2788, located on the North Branch of the Susquehanna River, a navigable water of the United States, subject to the terms and conditions of the Federal Power Act (Act), which is incorporated by reference as part of this license except as expressly waived below, and subject to the Regulations the Commission issues under the provisions of the Act.

(B) The project consists of:

(1) all lands, to the extent of the Licensee's interests in those lands, constituting the project area and enclosed by the project boundary, the project boundary and area being shown and described by a certain exhibit which forms part of the application for license and which is designated and described as: Exhibit FERC No. 2788

Showing

Colliersville Hydro Project General Location Maps

(2) project works consisting of: (a) a reinforced concrete dam (of Ambursen design), 200 feet long and 35 feet high; (b) a power canal, 50 feet long and

20 feet high at the head gates; (c) a reinforced concrete powerhouse with dimensions 103 feet long by 33 feet wide; (d) two turbine/generator units having a total installed capacity of 1,450 kW; (e) the project generator leads; and (f) appurtenant facilities. The location, nature, and character of these project works are more specifically shown and described by the exhibit cited above and by a certain other exhibit which also forms part of the application for license and which is designated and described as:

Exhibit FERC No. 2788

Showing

Reinforced Concrete
Gravity Dam
Sectional Elevation
Plan View

Dam and Power-
house
Dam, Intake and
Canal

(3) all of the structures, fixtures, equipment, or facilities used or useful in the maintenance and operation of the project and located on the project area which may be employed in connection with the project, including portable property, located on or off the project area, as approved by the Commission, and all riparian or other rights which are necessary or appropriate in the maintenance or operation of the project.

(C) Exhibits K and L, designated and described in Ordering Paragraph (B) above, are approved and made a part of this license.

(D) Pursuant to Section 10(i) of the Act, it is in the public interest to waive the following sections of Part I of the Act, and they are excluded from the license:

4(b), except the second sentence relating to free access by the Commission or its agents to the project works and project records; 4(e), insofar as it relates to approval of plans by the Chief of Engineers and the Secretary of the Army; 6, insofar as it relates to public notices and to the acceptance and expression in the license of terms and conditions of the Act that are waived in this license; 10(c), insofar as it relates to depreciation reserves; 10(d); 10(f); 14, except insofar as the power of condemnation is reserved; 15; 18, except as it relates to fishways; 19; 20; 22; and 23(a), insofar as it relates to the determination of fair value.

(E) This license is also subject to the terms and conditions designated Articles 1 through 14 and 16 through 19 in Form L-14 entitled "Terms and Conditions of License for Unconstructed Project Affecting Navigable Waters of the United States," attached to (See 54 FPC 1876) and made part of this license. This license is also subject to these additional special terms and conditions:

Article 20. The Licensee shall commence con

struction of the project works within six months from the effective date of this license and in good faith and with due diligence shall prosecute and complete construction of the project works within three years from the effective date of this license.

Article 21. During the course of construction of the project works, the Licensee shall repair all structures and facilities where there is evidence of concrete spalling and shall correct ground water seepage along the left bank abutment, to the satisfaction of the Commission's authorized representative. Licensee shall annually monitor the minor cracks at the top of the dam buttresses and shall immediately report to the Commission's authorized representative any change in those cracks.

Article 22. The Licensee shall clear and keep clear to an adequate width all lands along open conduits and shall dispose of all temporary structures, unused timber, brush, refuse, or other material unnecessary for the purposes of the project which result from maintenance or operation of the project works. In addition, all trees along the periphery of the project reservoir which die during operation of the project shall be removed. All clearing of lands and disposal of unnecessary material shall be done with due diligence, to the satisfaction of the Commission's authorized representative, and in accordance with applicable Federal, state, and local statutes and regulations.

Article 23. During the construction and operation of the project, the Licensee shall continue to consult and cooperate with the U.S. Fish and Wildlife Service of the Department of the Interior, the New York State Department of Environmental Conservation, and other appropriate Federal, state, and local agencies in the interest of protecting and enhancing the natural resources and values of the project area.

Article 24. If any previously unrecorded archeological or historic sites are discovered during the course of construction or development of any project works or other facilities at the project, construction activity in the vicinity shall be halted, a qualified archeologist shall be consulted to determine the significance of the sites, and the Licensee shall consult with the State Historic Preservation Officer (SHPO) to develop a mitigation plan for the protection of significant archeological or historic resources. If the Licensee and the SHPO cannot agree on the amount of money to be expended on archeological or historic work related to the proj ect, the Commission reserves the right to require the Licensee to conduct, at its own expense, any such work found necessary.

Article 25. The Licensee shall, to the satisfaction of the Commission's authorized representative, install and operate any signs, lights, sirens or other safety devices that may reasonably be needed to warn the public of fluctuations in flow from the project and to protect the public in its recreational use of project lands and waters.

Article 26. In the interests of protecting and enhancing the scenic, recreational, and other environmental values of the project, Licensee: (1) shall supervise and control the use and occupancy of project lands and waters; (2) shall prohibit, without further Commission approval, the further use and occupancy of project lands and waters other than as specifically authorized by this license; (3) may authorize, without further Commission approval, the use and occupancy of project lands and waters for landscape plantings and the construction, operation, and maintenance of access roads, power and telephone distribution lines, piers, landings, boat docks, or similar structures and facilities, and embankments, bulkheads, retaining walls, or other similar structures for erosion control to protect the existing shoreline; (4) shall require, where feasible and desirable, the multiple use and occupancy of facilities for access to project lands and waters; and (5) shall ensure to the satisfaction of the Commission's authorized representative that all authorized uses and occupancies of project lands and waters: (a) are consistent with shoreline aesthetic values, (b) are maintained in a good state of repair, and (c) comply with state and local health and safety regulations. Under item (3) of this article, Licensee may, among other things, institute a a program for issuing permits to a reasonable extent for the authorized types of use and occupancy of project lands and waters. Under appropriate circumstances, permits may be subject to the payment of a fee in a reasonable amount. Before authorizing the construction of bulkheads or retaining walls, Licensee shall: (a) inspect the site of proposed construction, (b) determine that the proposed construction is needed, and (c) consider whether the planting of vegetation or the use of riprap would be adequate to control erosion at the site. If an authorized use or occupancy fails to comply with the conditions of this article or with any reasonable conditions imposed by the Licensee for the protection of the environmental quality of project lands and waters, the Licensee shall take appropriate action to correct the violations, including, if necessary, cancellation of the authorization and removal of any noncomplying structures or facilities. The Licensee's consent to an authorized use or occupancy of project lands and waters shall not, without its express agreement, place upon the Licensee any obligation to construct or maintain any associated facilities.

Article 27. Pending further order by the Commission, on its own motion or at the request of others, the Licensee shall discharge from the Colliersville Project powerhouse a continuous minimum flow of 20 cfs or a flow equal to the inflow to the reservoir, whichever is less, for the purpose of protecting the aquatic habitat of the Susquehanna River. These flows may be modified temporarily: (1) if required by operating emergencies beyond the control of the Licensee; and (2) for fishery manage

ment purposes, upon mutual agreement between the Licensee and the New York State Department of Environmental Conservation. During construction and operation of the project, the Licensee shall not draw down the project reservoir more than 12 inches below the dam spillway crest. Before letting contracts for construction at the project, the Licensee shall submit its final contract plans to the New York State Department of Environmental Conservation for review, insofar as those plans relate to construction affecting water quality.

Article 28. Within two years from the effective date of this license, the Licensee shall file for approval by the Director, Office of Electric Power Regulation, a revised Exhibit K conforming to Section 131.6 of the Commission's Regulations and reflecting the addition to the project area of approximately 10 acres of land that will provide access to Goodyear Lake, acquired by the Licensee in fee for public recreational use. The Licensee shall cooperate with the Heritage Conservation and Recreation Service of the U.S. Department of the Interior, New York State Office of Parks and Recreation, Otsego County, and other appropriate agencies in providing for the development of this tract by those agencies for public recreation, and file with its revised Exhibit K a copy of the plan for recreational development of the site. The Commission reserves the right, on its own motion or at the request of others, to require the Licensee to make reasonable modifications to the project, to the extent necessary or desirable for public recreation.

Article 29. The Licensee shall pay the United States the following annual charge, effective the first day of the month in which this license is issued:

For the purpose of reimbursing the United States for the cost of administration of Part I of the Act, a reasonable annual charge, as determined by the Commission in accordance with the provisions of its Regulations in effect from time to time; the authorized installed capacity for that purpose is 1,940 horsepower.

Article 30. Licensee shall file with the Commission, within six months from the date of issuance of this order, implement, and modify when appropriate, an emergency action plan designed to provide an early warning to upstream and downstream inhabitants and property owners if there should be an impending or actual sudden release of water caused by an accident to, or failure of, project works. That plan shall include: instructions to be provided on a continuing basis to operators and attendants for actions they are to take in the event of an emergency; detailed and documented plans for notifying law enforcement agents, appropriate Federal, State, and local agencies, operators of waterrelated facilities, and those residents and owners of properties that could be endangered; actions that would be taken to reduce the inflow to the reservoir, if possible, by limiting the outflow from upstream

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dams or control structures; and actions to reduce downstream flows by controlling the outflow from dams located on tributaries to the stream on which the project is located. Licensee shall also submit a summary of the study used as a basis for determining the areas that may be affected by an emergency, including criteria and assumptions used. Licensee shall monitor any changes in upstream or downstream conditions which may influence possible flows or affect areas susceptible to damage, and shall promptly make and file with the Commission appropriate changes in the emergency action plan. The Commission reserves the right to require modifications to the plan.

(F) This order shall become final 30 days from the date of its issuance unless an application for

rehearing is filed as provided in Section 313(a) of the Federal Power Act, and failure of the Licensee to file such an application shall constitute acceptance of this license. The acknowledgment of acceptance attached to this license shall be signed for the Licensee and returned to the Commission within 60 days from the date of issuance of this order.

-Footnotes

1 After notice was published in accordance with the Federal Power Act (Act), New York State Electric and Gas Corporation (NYSE&G) sought and was permitted to intervene. NYSE&G subsequently advised the Secretary that all matters upon which its intervention was based had been resolved with Stapenhorst.

2 Cf. Mystic Lake Project No. 2301, Order Issuing New License (Major) (issued October 5, 1976, 56 FPC 2008).

On January 10, 1979 Kansas City Power & Light Company (KCPL) tendered for filing superseding Service Schedules providing for increased rates for firm power sales to the Cities of Baldwin City, Garnett, and Osawatomie, Kansas, and the City of Carrollton, Missouri (Cities). KCPL has also proposed changes in the design of its billing demand ratchets.'

The proposed rate schedules supplement the Cities' Municipal Participation Agreements with KCPL which provide for various interchange services in addition to firm power. In its transmittal letter KCPL states that the tendered rate schedules, each designated C-MPA-4, supersede and replace the C-MPA-3 schedules for Baldwin City, Garnett and Carrollton, and the C-MPA-2A rate schedule for Osawatomie. The proposed rates specify a demand charge of $4.59 per kW per month, a transformation charge of 20 cents per kW per month for deliveries below 34.5 kV, an energy charge of 9.5 mills per kWh, and a fuel adjustment clause.

KCPL states that there exists good cause for the waiver of our 60-day notice requirement2 and therefore requests that the proposed rates be made retroactively effective as of May 1, 1978. KCPL explains the lateness of its filing is due to the fact that its management employees who normally process rate filings were on assignment in the company's operating departments during a strike of 1200

of its 2600 employees which began July 1, 1978 and ended November 16, 1978.

Notice of KCPL's filing was given on January 19, 1979, with protests or petitions to intervene due on or before February 12, 1979. On February 12, 1979, the City of Osawatomie filed a Protest, Petition to Intervene and Request for Suspension. On February 23, 1979, KCPL filed an Answer to Osawatomie's Protest.

KCPL states that the tendered schedules provide rates and charges corresponding to those in effect since January 31, 1978, under a settlement agreement filed with the Commission on March 2, 1978, and approved by letter-order dated June 2, 1978, in Docket No. ER77-522. KCPL asserts that the service to the Cities is similar to its service to other customers which purchase full requirements under rates in the settlement agreement. KCPL further asserts in its January 10, 1979 filing that the Cities agreed the rate level for service to them would be subject to the Commission's acceptance of the settlement agreement and the instant filing. However, in its answer of February 23, 1979, KCPL merely asserts that its discussion with Osawatomie in April 1978 centered on the ER77-522 settlement rates of $4.59 per kw per month and 9.5 mills per kWh.

The relationship between Cities' purchases and the settlement rates from Docket No. ER77-522 is now relevant only to Osawatomie. The other Cities

have not purchased firm power since May 1, 1978. In April 1978, pursuant to its Municipal Participation Agreement, Osawatomie requested KCPL to provide it with 2400 kW of firm power and energy for a 12-month period beginning May 1, 1978, to allow the City to overhaul two of its diesel generators. By letter dated April 24, 1978, KCPL agreed to provide the service as requested. The proposed rates would increase revenues from Osawatomie for its one-year 2400 kV purchase about $48,000.

While KCPL states the proposed C-MPA-4 rate schedule with the $4.59 per kW per month demand charge is intended to replace a C-MPA-2A rate schedule and a $3.71 per kW per month demand charge, Osawatomie states that KCPL has not filed a C-MPA-2A rate schedule with a $3.71 per kW demand charge applicable to the City. Rather, Osawatomie maintains the proposed rate schedule would replace a C-MPA-2 rate schedule and a $3.46 per kW per month demand charge (less 20 cents for deliveries at 69 kV).'

Osawatomie states in its Protest that it has never consented to a retroactive application of any increase in its rate or agreed that the rates for its 2,400 kW one-year purchase are subject to this Commission's acceptance of the settlement agreement in Docket No. ER77-522 and of the instant filing. Osawatomie contends that the language of its C-MPA-2 firm power rate schedule precludes retroactive application of any rate change. The rate schedule provides:

"Effective Term:

This Schedule C-MPA-2 shall be effective as of the Operative Date of the said Municipal Participation Agreement to which it is attached and shall remain and continue in effect until superseded by a substitute schedule tendered by the Company and accepted for filing by the governmental regulatory agencies having jurisdiction." (Emphasis added).

Osawatomie also notes it was not a party to the rate proceeding in Docket No. ER77-522.

Osawatomie requests that the proposed rates be suspended for two months to cover the contract period, ending April 1979, for its 2,400 kW purchase of power. However, Osawatomie does not protest the level of the proposed rates and does not provide support for its suspension request.

Upon our review of all the submittals we shall accept the proposed rates for filing to be effective March 12, 1979, 60 days after filing. There is no basis for granting KCPL's request that we waive our 60-day notice requirement and make the proposed rates effective seven months before the date of filing. Thus, we deny KCPL's waiver request. Similarly, we deny Osawatomie's request for a twomonth suspension of the proposed rates.

Our review of the submittals also indicates the proposed $4.59 demand rate will supersede and replace the currently applicable $3.46 per kW per

month rate for Osawatomie. The $3.46 rate is specified in both KCPL's C-MPA-2A rate schedule filed with the Commission on January 2, 1976 in Docket No. ER76-435, and the C-MPA-2 rate schedule filed September 17, 1975 in Docket No. ER76–131.

We also note that KCPL's rate schedules contain a tax adjustment clause. KCPL is hereby advised that any adjustment which it may contemplate pursuant to the clause will have to be filed as a change in rates under Section 35.13 of our Rules and Regulations. It is our regulatory policy that such tax clauses may not serve as a basis for automatic changes in rates, See order in Boston Edison Company, Docket No. ER78-304, issued May 30, 1978, 3 FERC ¶ 61,192.

The Commission orders:

(A) KCPL's proposed rate schedules, tendered for filing on January 10, 1979, are accepted for filing and permitted to become effective March 12, 1979.

(B) KCPL's request for waiver of our 60-day notice requirement is denied as good cause has not been shown.

(C) The City of Osawatomie, Kansas, is hereby permitted to intervene subject to the Rules and Regulations of the Commmission: Provided, however, that the participation of this intervenor shall be limited to matters set forth in their petitions to intervene; and Provided, further, that the admission of this intervenor shall not be construed as recognition by the Commission that it might be aggrieved because of any order or orders by the Commission entered in this proceeding.

(D) Osawatomie's request for a two-month suspension of the proposed rate schedule is denied.

-Footnotes

See Attachment A for Rate Schedule designations.

1 See, Changes in Notice Requirements Part 35-Filing of Rate Schedules, January 2, 1979, FERC Statutes and Regulations 30,039.

The demand component of the present rates for Baldwin City and Carrollton is $3.71 per kW per month and $3.74 per kW per month for Garnett. It appears from the filings of KCPL and Osawatomie that the company has billed the City at a rate based on a demand charge of $3.71 per kW per month.

We note that the "Effective Term" provision of the C-MPA-2 schedule, supra, is identical to that contained in the C-MPA-2A schedule.

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