§ 11.11 Energy gains method of determining headwater benefits charges. ( a ) *Applicability.* This section applies to any determination of headwater benefits charges, unless: ( 1 ) The Commission has approved headwater benefits charges pursuant to an existing coordination agreement among the parties;
( 2 ) The parties reach, and the Commission approves, a settlement with respect to headwater benefits charges, pursuant to § 11.14(a) of this subpart; or
( 3 ) Charges may be assessed under § 11.14(b).
( b ) *General rule* — ( 1 ) *Summary.* Except as provided in paragraph (b)(3) of this section, a headwater benefits charge for a downstream project is determined under this subpart by apportioning the section 10(f) costs of the headwater project among the headwater project and all downstream projects that are not exempt from or waived from headwater benefits charges under § 11.10(b) of this chapter, according to each project's share of the total energy benefits to those projects resulting from the headwater project.
( 2 ) *Calculation; headwater benefits formula.* The annual headwater benefits charge for a downstream project is derived by multiplying the section 10(f) cost by the ratio of the energy gains received by the downstream project to the sum of total energy gains received by all downstream projects (except those projects specified in § 11.10(b) of this chapter) plus the energy generated at the headwater project that is assigned to the joint-use power cost, as follows: In which: P = annual payment to be made for headwater benefits received by a downstream project, Cp = annual section 10(f) cost of the headwater project, En = annual energy gains received at a downstream project, or group of projects if owned by one entity, Ed = annual energy gains received at all downstream projects (except those specified in § 11.10(b) of this chapter), and Ej = portion of the annual energy generated at the headwater project assigned to the joint-use power cost.
( 3 ) If power generation is not a function of the headwater project, section 10(f) costs will be apportioned only among the downstream projects.
( 4 ) If the headwater project is constructed after the downstream project, liability for headwater benefits charges will accrue beginning on the day on which any energy losses at the downstream project due to filling the headwater reservoir have been offset by subsequent energy gains. If the headwater project is constructed prior to the downstream project, liability for headwater benefits charges will accrue beginning on the day on which benefits are first realized by the downstream project.
( 5 ) No final charge assessed by the Commission under this subpart may exceed 85 percent of the value of the energy gains. If a party demonstrates, within the time specified in § 11.17(b)(3) for response to a preliminary assessment, that any final charge assessed under this subpart, not including the cost of the investigation assessed under § 11.17(c), exceeds 85 percent of the value of the energy gains provided to the downstream project for the period for which the charge is assessed, the Commission will reduce the charge to not more than 85 percent of the value. For purposes of this paragraph, the *value of the energy gains* is the cost of obtaining an equivalent amount of electricity from the most likely alternative source during the period for which the charge is assessed.