FERC Committee Updates

FERC Committee Report - Steve Heinz    September 19, 2024

Outreach. 

Press Initiative:  A front-page article appeared in the Portland Press Herald on the unexpected draining of Dundee Pond on the Presumpscot. See: https://www.pressherald.com/2024/08/25/unexpected-water-drawdown-reveals-wild-stretch-of-presumpscot-river-hidden-for-decades/ 

Press Release issued for Appeal of Rumford Falls Water Quality Certification, see Attachment A below. 

Conservation Community Event. The next event will be in November – considering small grant opportunities or agency presentation on ‘adaptive management’ features in new hydro licenses. 

Lower Kennebec Dams. Activity continues following posting of the Draft Environmental Impact Statement (DEIS). Maine Department of Marine Resources (MDMR) met with the United States Fish and Wildlife Service (USFWS), the National Marine Fisheries Service (NMFS), and the Federal Energy Regulatory Commission (FERC) in July to discuss the agencies' recommended fish and wildlife measures made pursuant to section 10(j) of the Federal Power Act for the Shawmut Hydroelectric Project (P-2322). The purpose of the meeting was to discuss and attempt to resolve inconsistencies between section 10(j) recommendations made by MDMR and those initially adopted in the Draft Environmental Impact Statement (DEIS) as they pertain to public interest and comprehensive development standards of sections 4(e) and l0(a) of the Federal Power Act (FPA). MDMR agrees with the meeting recommendations. We expect FERC to modify the DEIS based on that meeting. Of additional note, Brookfield lost its appeal to the DC Appeals Court of FERC’s accepting/upholding the State of Maine’s 401 Denial Without Prejudice of the Shawmut relicensing. Brookfield must either appeal this to the Supreme Court or refile their 401 application to relicense Shawmut that includes their plans for fish passage. Perhaps most importantly, FERC just sent a letter to Brookfield notifying them that FERC is considering requiring new State 401 review of proposed amendments to the current FERC licenses to address fish passage at Weston, Hydro Kennebec, and Lockwood. FERC gave Brookfield 60 days to provide updates on consultation with MEDEP and updates on any new 401 filings. A lot has changed on Kennebec since Maine’s 1986 and 1992 401 Water Quality Certifications. Steve Brooke sees all of this as hopeful news for the Kennebec’s fisheries. Lastly, Brookfield published a report of a study of tagged alewives as to where they tended to go at Shawmut when trying to get upstream and that was to the center of the dam. 

Rumford Falls Project. Maine Rivers, American Whitewater, Conservation Law Foundation, Friends of Richardson Lake, American Rivers and Council submitted a joint appeal to Maine’s Board of Environmental Protection (MBEP) of the Water Quality Certification. The appeal can be viewed at https://drive.google.com/file/d/10R9gY1Knvwnw-7IuvTHvYB6TxPNggm9j/view?usp=sharing

Aziscohos Project. Confidential discussions continue between Brookfield Renewable Energy and the NGOs (Trout Unlimited, Appalachian Mountain Club, American Whitewater, American Rivers and Rangeley Lakes Heritage Trust, Aziscohos Lake Preservation Committee and Aziscohos Lake Camp Association. The NGOs are considering an extension of Brookfield's request to the Federal Energy Regulatory Commission (FERC) for a revised Final License Application filing date to June 2025 to allow for the settlement talks to continue, which have been constructive.  The NGO's will request that FERC establish the following benchmarks: 1) Agreement in principle by end of January 2025, 2) Finalized Agreement by end of March 2025, and 3) Brookfield files revised FLA no later than June 2025. The NGOs will take into consideration that the clarification of historic deeds on land ownership along the Magalloway River from the dam to the Rte 16 bridge at Bennett Road is still being resolved, and the recent finalization of a 2-year option dependent on successful fundraising by the Rangeley Lakes Heritage Trust (RLHT), Maine Nature Conservancy (ME TNC), the Forest Society of Maine (FSM) and Northeast Wilderness Trust (NEWT)  for a very significant Upper Magalloway land protection effort, which represents potential measures and plans to protect, mitigate, or enhance environmental resources (PME) for a 401 Water Quality Certificate (WQC) with Brookfield's financial participation. Brookfield and RLHT have had ongoing meetings on these two possibilities. To help move the discussions forward, in the near term the NGOs will revise their confidential May 2024 Proposed Draft Settlement Agreement (SA) Outline it had provided Brookfield, to incorporate with greater detail the new information on a) land ownership at and below the dam and associated stewardship costs, and b) specifics on how Brookfield's involvement in the Upper Magalloway Land project could have a PME role in the 401 WQC process.  

Ripogenus and Penobscot Mills Projects. 

Ramping Study Observations Report. 64-page report submitted detailing observations of Ramping Study events conducted by Brookfield on July 17 and 24. Highlights that strandings and mortality occur even when flows drop to 1000 cfs and recommends further studies to determine safe minimum flows. Report can be read at https://drive.google.com/file/d/13E41ji6u__6m-RANo7T6hkodAi9HcbM6/view?usp=sharing

Draft Study Plans Comments / Future Studies. Brookfield has managed to avoid conducting the studies needed to determine the best conditions for the new licenses. Despite wide-spread opinion that the fishing is getting worse, there is no data to support that at this point. The option is for us to conduct our own studies, but when email was sent announcing this, local Fisheries Biologist Tim Obrey objected. TU volunteer fisheries biologist Neal Hagstrom attempting to work out a cooperative arrangement. If this is unsuccessful, this will bring TU into direct contact with MDIFW. 

Ops Model Run Requests. TU, the Camp Owners Associations, American Whitewater and the Appalachian Mountain Club submitted a joint request for additional ops model runs to gage the feasibility of different flow scenarios. Brookfield has been refusing to consider options that fully fill the lake. This in effect hides water and enables them to conduct peaking operations. Some controversy exists between the stakeholders at this time.

Mousam Project. Still awaiting MDEP response to Maine Rivers and MKRA filing regarding dam removal.

Medway Project (first dam on West Branch). Steve attended the Joint Agency Meeting in Millinocket in July. Agencies will support fish passage. TU comments support, especially overdue eel passage. 

Worumbo Project (lower Androscoggin). Consultations continue between Eagle Creek, USFWS, and NMFS to develop fishway prescriptions. 

Royal River Dams. USACE has completed their final draft of the Project Report and Environmental Assessment regarding restoration of the Royal River. The report will be released for public review in early October, and there will be a public meeting. This past summer there have been two public meetings regarding aspects of the entire draft. It appears that the USACE will propose full removal of the Bridge Street dam and partial removal of the Elm Street dam.

Brunswick Project. MMBTU submitted Preapplication Document (PAD) comments supporting fish passage.

Lewiston Falls Project. Brookfield has filed the Final License Application. Brookfield only offers 6 scenic releases. 

Hackett Mills Project. Very small Eagle Creek Project on Little Androscoggin River. Project in relicensing but undergoing needed repairs to spillway. Yearly license issued to fill gap until new license can be issued. 

Dundee Project. Relevate (formerly Dichotomy) allowed dewatering of Dundee Pond, an ecological disaster. Repairs are in progress, pond expected to be refilled this fall. See outreach above. Related note: FERC cited Relevate for a license violation for a head pond level violation downstream at the Mallison Falls Project.

Cataract Project. Working with Saco River Restoration Alliance. Expect to submit Preapplication Document (PAD) comments later this month supporting fish passage.

Lowell Tannery Project. Small KEU Project on the Passadumkeag River, a Penobscot River feeder. Council had filed to intervene earlier this summer. Agencies and PIN agreed to settlement after two years of negotiation. ASF, American Rivers, TU and others filed stating our concerns. See Attachment B below.  

Green Lake Project. The Ellsworth American and we assume other outlets ran an article stating that TU was supporting introduction of alewives into the Green Lake Project. There are so many conflicting interests there that we saw no good solution and have not filed anything since 2019 when we supported the full suite of environmental studies. 

Maine Agency Conflict of interest. FERC Committee considering introducing legislation to stop MDIFW and other resource protection agencies from accepting study money directly from entities exploiting and profiting from the resource. See Attachment C below.

DOE Hydro Grants. U.S. Department of Energy announced it had awarded nearly 300 projects across 33 states up to $430 million in incentive payments to upgrade hydropower facilities – specific amounts for Maine attached. Steve distributed to Maine conservation community. Reactions were complex but included shock and rage. The only response anyone has come up with is to write to state federal legislators expressing our objections that our tax dollars are being used to subsidize the assets of foreign-owned companies, most of which are large and well-financed. 

Upper and Middle Dam Storage Project. The license calls for annual inspection of the inlets to the feeders to Mooselookmeguntic and the Richardson Lakes. Jeff Reardon, then Mac McGinley used to do it. Brookfield’s Kyle Murphy asked for a volunteer on short notice. Steve unsuccessfully tried to get someone from people he knows own camps in the area. 

Bureau of Parks and Lands Integrated Resource Policy (IRP). The Bureau is working on an update to its Integrated Resource Policy (IRP), last revised in 2000. The IRP is the Bureau’s primary guidance for managing public reserved lands, non-reserved lands, parks, and historic sites. The internal part of the update process has been going on for a couple of years now, and we are now making plans for outreach to stakeholder groups/organizations and the general public. Details are just now being worked out, but we will likely schedule videoconference meetings to provide an overview of the purpose and content of the IRP and a summary of the most substantial revisions contained in the Draft Revised IRP.  We will then provide various options for folks to review and comment on the Draft. To assist with that outreach, BPL official Jim Vogel is compiling a contact list, starting from people and organizations that have been on our management plan Advisory Committees across the state.  Jeff Reardon represented TU on one of those committees. 

Maine FERC Active Project Status Report. Expect next report in late September or mid-October.

Attachment A

Environmental Coalition Appeals to Restore Rumford Falls 

Augusta, Maine - September 17, 2024

Last month, Maine Department of Environmental Protection issued the Water Quality Certification needed for the Rumford Falls Hydroelectric Project to be relicensed by the Federal Energy Regulatory Commission for the next 40 years. Rumford Falls is Maine’s largest waterfall and the largest in the country east of Niagara.

The certification contained conditions that were an improvement over those in the last certification: ten scenic releases over the falls during the course of the summer and minimum flows over the lower part of the falls to support the trout fishery that Maine Department of Inland Fisheries and Wildlife maintains there. No minimum flows were required over the upper falls or the stretch of river between the upper dam and the upper falls below the Rumford Falls hiking trail with all those flows diverted to penstocks and generators. The best part of the falls will be practically dry for most of the summer and three-quarters of the year. Ironically, this will occur just above the site of the memorial to former Maine Senator Edmund Muskie, the legislator most responsible for the Clean Water Act.

A coalition of stakeholders is appealing the certification to the Maine Board of Environmental Protection: the Maine Council of Trout Unlimited, American Whitewater, Maine Rivers, the Friends of Richardson Lake, Conservation Law Foundation, and American Rivers. The appeal is largely based on Maine environmental statute requiring rivers to meet all designated uses, not just electricity production; these include fisheries, recreation and aquatic habitat. 

Steve Heinz, who coordinates FERC relicensings for Maine TU Council noted: “It’s slightly bizarre that given the content of Maine’s strict environmental statutes, we are having to ask the Department of Environmental Protection to explain how they can let a hydro project take all the water in the river for power generation and dewater the best part of the largest waterfall in the US east of Niagara in the process.”

American Rivers Northeast Regional Director Andy Fisk stated: “The proposed certification conditions for this hydropower dam are a big improvement over the current 30-year-old requirements. But there’s more that should be done to meet the Department’s own policies on how to ensure that sections of rivers like those at the Upper Falls that support habitat are not written off. The department missed the mark on this point, but we believe this is readily fixed and is not a financial burden on Brookfield.”

Rumford resident John Preble said: “Upper Rumford Falls has always been a central scenic feature of the Town of Rumford for residents, visitors, and individuals passing thru. All my life I have dreamed of how wonderful it would be if there were a constant minimum flow to be enjoyed year-round, a dream shared by many residents and friends. The metamorphosis of the river over the years has been outstanding in terms of recreational and economic value to the communities of greater Rumford and Western Maine. Watering the upper falls would be a giant step forward to advance the natural river flow and provide safer passage for fish going downstream.”

Maine Board of Environmental Protection is a seven-member citizen board appointed by the governor and confirmed by the legislature. Its purpose is to provide informed, independent and timely decisions on the interpretation, administration, and enforcement of the laws relating to environmental protection and to provide for credible, fair, and responsible public participation in Department decisions. The appeal includes a request that a public hearing beheld that is expected to be held later this year. 

Attachment B

August 13, 2024

Debbie-Anne Reese Acting Secretary, FERC 888 First Street, NE Washington, DC 20426

  Re: Lowell Tanner Hydroelectric Project, (P 4202-025) Opposition to Offer of Settlement

Dear Acting Secretary Reese:

The undersigned, in response to the July 23, 2024 filing of Offer of Settlement and Explanatory Statement, provide the following comments in opposition to the proposed terms of settlement.

This project is a one megawatt run-of-river hydroelectric facility located in Maine on the Passadumkeag River, a tributary of the Penobscot River.

We appreciate that the results of this settlement agreement include science-based performance standards and consideration of adaptive management that when implemented will meet the safe, timely, and effective fish passage requirements. It is also positive that temporary upstream eel passage is to be deployed at license issuance.

As the public was not party to these settlement negotiations, we would welcome clarification from the resource agencies on the alternative performance standard of abundance goals. We would like to understand how they line up with the restoration goals and available habitat above this project.

We have significant concerns about other elements of this proposed settlement. They are:

• The timeframe for implementation of safe, timely, and effective up and downstream fish passage is overly long and not based in technical feasibility.

• Signatories support for LIHI certification prior to fishway construction and testing to indicate performance standards are met is inappropriate.

• Issuance of a 50-year license is inappropriate.

Timeframe for implementation

It is relevant to consider the entire timeframe for this relicensing and the proposed implementation schedule for fish passage and other license conditions.

2018 – KEI files their notice of intent (NOI) and Pre-application Document (PAD).

2021 – KEI files their Draft License Application (DLA) and Final License Application (FLA) which did not include any fish passage measures.

2024 – Proposed settlement agreement filed with FERC which establishes timeframes for consideration of fishways, their design, and implementation

2026 (est) – issuance of FERC License

2034 (est) – new upstream and downstream fishways into service and operational 2036 (est) – new permanent upstream eel passage facility operational

So, the best case scenario is that the required fish passage prescription will not be online for 16 to 18 years following the initiation of relicensing, and for 12 years following issuance of a new license. It is unfortunate that KEI has taken advantage of both the licensing process and the time and energy of the resource agencies to gain such generous timeframes for implementation.

While we appreciate that there are strong elements in this settlement, particularly performance standards, the length of time it took to establish them was a direct result of the licensee filing a license application that did not propose fish passage measures. State and federal resource agencies have limited capacity and it seems reasonable that it should not take three years of negotiations to lay out requirements and timeframes for installation of fish passage that are by now well understood. Nor should it take well over a decade to design and construct fish passage facilities.

It appears that the most likely rationale for this timetable is to defer the costs of installing and operating fish passage at this small 1MW project. It should not take 3 years to negotiate a standard sequence of steps – monitor, design, permit, and build – that in turn can be accomplished in significantly less time than 8 or 10 years.

For the period that settlement took, it is surprising that there was no specific design that was recommended. In effect the clock appears to be starting at the beginning of the design process at license issuance.

LIHI certification stipulated support

We were surprised to see that signatories agreed at this stage in the relicensing to support LIHI certification. Stipulated support for yet-to-be designed fish passage measures that will be implemented at a distant date per the settlement agreement is inappropriate. There are many steps that the project owner needs to take to meet the settlement agreement terms. And while the provisions in the agreement that allow for changes in timeframes are understandable, they are opportunities to further delay safe, timely, and effective fish passage. And because agencies will support LIHI certification prior to design, construction, or testing of fish passage facilities, we assume that LIHI will be asked to issue a certification at license issuance prior to implementation of critical mitigation that is required to meet LIHI’s fish passage standards.

Providing the financial rewards of LIHI certification more than a decade prior to construction of fish passage facilities—and with the possibility of additional open-ended delay built into the settlement—removes any incentive for the licensee to improve environmental performance so they can get the financial benefits of LIHI certification. This schedule - by agreement of the agencies - is not “timely” and subject to additional delays without penalty.

A better incentive is to grant certification at the point after design and construction, and upon at least initial testing that suggests performance standards are being met. That would incentivize fish passage implementation as soon as possible and eliminate incentives for additional delay.

Issuance of a 50 year license

We see little rationale for issuing the maximum timeframe for an operating license for this facility. The provisions of Section 36(b)(2) of the Federal Power Act allow the Commission to consider, and give equal weight to, project-related investments by the licensee under the new license and project-related investments by the licensee over the term of the existing license. These considerations provide the Commission an opportunity add up to ten years beyond what is now the default license term of 40 years.

A clear indication of what should not be rewarded during the current license is the complete failure of the existing upstream fish passage facility. Study results during the licensing process showed zero tagged alewives passed upstream of the project and only 2 entered the fishway. We would welcome a description of what actions KEI has taken during the life of the current license that it feels deserves this reward.

As well we see little reason to incentivize the failure of KEI to advance fish passage solutions during the initial licensing period and then be provided an overly long timeframe to design and install fish passage.