October 1, 2014
Michael J. Sale, PhD
Executive Director
Low Impact Hydropower Institute
704 Potters Falls Road
Wartburg, TN 37887

Dear Michael:

The Connecticut River Watershed Council, Inc. (CRWC) is a nonprofit membership citizen organization established in 1952 with a staff, member and board presence in all the watershed states from Canada to Long Island Sound. CRWC advocates for the protection, restoration, and sustainable use of the Connecticut River and its four-state watershed.

The Council’s members use and are concerned about the area of the Connecticut River affected by the presence and operation of all dams in the watershed. Impoundments impede flow and fish passage, contribute to water level fluctuations and in general hydropower projects impact streambank erosion, water quality, wildlife habitat including endangered species, wetlands resources, agricultural land, and recreational use. CRWC is regularly involved in FERC proceedings on hydropower dams in our watershed, and are currently very involved in the relicensing of 5 facilities on the CT River in Massachusetts, New Hampshire, and Vermont. As such, we are interested in the LIHI certification process, have felt in the past that some decisions were flawed, and hope proposed revisions strengthen the process in positive ways.

Having reviewed the proposed changes, CRWC would like to submit the following comments.

1. Introduction
Under the charge that the Board gave to the Technical Committee the forth bullet point says the Committee was to
“Emphasize dual goals of energy and environment whenever possible.”
CRWC wonders why LIHI gives the goals of energy and environment equal weight. That may be an appropriate standard for FERC or a state resource agency if that is their mandate under law, but LIHI certification offers a price advantage for low impact hydro projects. CRWC feels that environmental protection should have more weight in order for a facility to qualify as a low impact project. LIHI is an independent group that does not have legal or legislated responsibility to balance power production and the environment. The lens through which one views a project predisposes the outcome. We understand that this part of the process is finished, but wanted to mention this because our lens leads to our comments about the proposed criteria.
The “whenever possible” ending of that phrase leaves one wondering, if there is an environmental impact that can be mitigated but at some cost to the operator, which has the higher priority? If it were not “possible” to strike a balance, then CRWC would argue that the environment should be the top priority for LIHI as they review projects and that they should deny certification if there is meaningful environmental impact that an owner cannot or will not address.

LIHI moving the existing “Dam Removal” criterion into the future definition of eligibility raises a question. Does the Handbook dated 4/9/2014 apply now as written? Will LIHI rewrite the handbook based on comments in this process? If it does, CRWC reminds LIHI that we submitted comments on the dam removal section in 2009 copied below.

• A.3 a This section should not be limited to just Resource Agencies but should allow for NGO input on whether or not the dam should be removed or should have been removed prior to hydro installation. There have been times that removal recommendations have been more environmentally responsible than at other times under different resource agency leadership. There should be NGO involvement in this section, and their perspective on the appropriateness of a removal recommendation should be solicited as part of the LIHI interview process. (From CRWC comment letter dated 2009)

LIHI might consider a special category for conduit facilities and/or those facilities that receive a conduit exemption from FERC. Conduit facilities typically have limited environmental impacts and so are truly low impact from the get-go. If LIHI is interested in decreasing review time, these facilities should be an obvious area for streamlining. They should also potentially be able to get PLUS ratings and therefore a longer certification time, but the way the PLUS categories do not seem to apply to them as drafted.

2. Criteria
Before discussing the individual criteria put forward by LIHI, CRWC would like to make one overarching comment about the criteria requirements for LIHI certification. CRWC feels that merely having a state or FERC license should not be sufficient for LIHI certification. Facilities should show that they are doing something beyond minimum license requirements to gain certification in order for the LIHI certification to mean anything. LIHI certification offers an applicant a premium price for the generated power. It would seem to CRWC that the applicant should earn that premium through exemplary action to enhance the river environment.

A. Flow regimes

A-1 Some facilities (Holyoke Dam, for example) operate in a modified run-of-river regime in order to minimize upstream impacts to an endangered species. This standard could recognize these situations and include “pure or modified for protective reasons.”
A-2 The criterion says that for facilities with limited storage capacity the flow regime “complies with a regionally accepted instream flow policy or standard setting technique.” CRWC believes this needs clarification. Here in New England, the regionally accepted flow policy is the USF&W Service’s interim flow of 0.5 cfsm and despite the interim label; it has been in place for decades. Yet each state in New England has their own Water Quality Standards that may of may not accept the .5 cfsm standard relative to hydro dams. CRWC suggests that after some discussion how it might be stated, the role of state WQS should be included in this criterion.
A-3 Reservoir storage hydropower facilities can never be truly low impact. LIHI should consider not allowing certification for such peaking facilities, or making sure the bar is incredibly high. Perhaps A-1 or conduit hydro should be the only standard that should be allowable for LIHI certification.
A-4 CRWC does not understand what an “incremental analysis basis” means. If it is suggesting site-specific IFIM studies, it might clarify the meaning of that phrase to say so. If it does not mean IFIM then LIHI should give the phrase a definition and add it to the definitions.
A-PLUS CRWC supports the inclusion of adaptive management of facilities. As we learn, we should adjust toward improving habitat conditions. CRWC is unclear about who would document and review a claim of adaptive management. An applicant should show how adaptive management is avoiding or minimizing environmental impacts over time. If a project owner is claiming adaptive management, who would follow up to see that it is actually happening?

B. Water Quality Standards
The paragraph needs some clarification. Does LIHI define Water Quality Limited as including the Part F waters that are part of the VT 303(d) list? These waters do not require a TMDL, but modifications in flows do not allow the reach of water to meet state water quality standards. If that is what the paragraph says, it is our understanding that any facility that causes a reach of water to be on a 303 (d) Part F list is not eligible for certification, and we support this criterion.

B-1 Does this criterion mean the river as is with the facility in place or the river condition prior to the installation of the facility? If it were the river condition without the facility, it would seem to us that no projects would be eligible for certification. In addition, this criterion seems like an oversimplification. LIHI should review the EPA’s “National Management Measures to Control Nonpoint Source Pollution from Hydro modification” for ideas and to ensure consistency (see http://water.epa.gov/polwaste/nps/upload/Hydromod_all_web.pdf), and LIHI might consider adopting those measures as the minimum standard for certification.
B-2 allows LIHI to disregard a state issued 401. LIHI under this language as LIHI could decide that a state issued 401 certificate was not a “science based” recommendation. Is that what you intend?
B-3 This criterion is confusing. If a state does not issue a 401 or LIHI does not accept it as being science based, who decides that the facility complies with the applicable water quality standards– the facility operator or LIHI, since the state is out of the picture?
B-PLUS CRWC supports the inclusion of adaptive management of facilities. As we learn, we should adjust toward improving habitat conditions. CRWC is unclear about who would document and review a claim of adaptive management. An applicant should show how adaptive management is avoiding or minimizing environmental impacts over time. If a project owner is claiming adaptive management, who would follow up to see that it is actually happening?

C. Upstream Fish Passage

C-2 If it is known by stakeholders that a facility is following the provisions of an existing license or permit with fish passage required, yet it is not working, would that facility qualify under this criterion?
C-4 CRWC feels that there should be a role for NGOs in the process. The statement here specifically references resource agencies and by the plain meaning of the language, NGOs would have no input on whether the facility meets the criterion, especially if it is a matter of offsite mitigation.
C-PLUS The question here is whose basin level management plan? There are plans from the USF&W Service for restoration of migratory fish to the main Connecticut River but no states have plans for the main river per se. There are state basin plans in VT for tributary rivers, plans for enrolled tributary rivers in NH but many states do not have such things. The US Department of Energy has developed plans for power generation in various watersheds in the US but many states and NGOs disagree with their stated potential for hydro development. All this to say there remains a question of whose plans and that the reasons behind the development of those plans make a difference in what compliance with a plan means. If there is a basin-scale strategy the facility should meet the fish passage goals. If it does not, the facility should not even be getting LIHI certification and certainly should not be eligible for a PLUS rating.

CRWC supports the inclusion of adaptive management of facilities. As we learn, we should adjust toward improving habitat conditions. CRWC is unclear about who would document and review a claim of adaptive management. An applicant should show how adaptive management is avoiding or minimizing environmental impacts over time. If a project owner is claiming adaptive management, who would follow up to see that it is actually happening?

D. Downstream Fish Passage and Protection

D-2 What happens when the facility provides safe and effective downstream passage for some species but not all?
D-4 The criterion allows no place for NGO participation in the establishment of potential off site mitigation plans.
D-PLUS The question here is whose basin level management plan. There are plans from the USF&W Service for restoration of migratory fish to the main Connecticut River but no states have plans for the main river per se. There are state basin plans in VT for tributary rivers, plans for enrolled tributary rivers in NH but many states do not have such things. The US Department of Energy has developed plans for power generation in various watersheds in the US but many states and NGOs disagree with their stated potential for hydro development. All this to say there remains a question of whose plans and that the reasons behind the development of those plans make a difference in what compliance with a plan means.

CRWC supports the inclusion of adaptive management of facilities. As we learn, we should adjust toward improving habitat conditions. CRWC is unclear about who would document and review a claim of adaptive management. An applicant should show how adaptive management is avoiding or minimizing environmental impacts over time. If a project owner is claiming adaptive management, who would follow up to see that it is actually happening?

E. Watershed Protection

E-1 Since all hydro operations touch land either with the footprint of the constructed facility or their reservoirs, this criterion seems a misstatement of reality.
E-3 The type of entity that approves the shoreland buffer is important. A conservation easement of 3 feet would satisfy this criterion if some unnamed entity or person said they approved the easement. The facility owner should also demonstrate that they are following any plan they might have as part of their license.
E-PLUS This criterion needs some explanation. Why is the requirement 50% of the reservoir lands out 200 feet? If you wanted to set a high standard would not that mean 100% of owned land. Confusion sets in when you consider that the project may not own 50% of the land around its reservoir, or some lesser amount is undeveloped with the rest developed through historic use. The project lands terrain may not allow for a 200 foot buffer on 50 % or more of the land. Setting a specific percentage amount of a reservoir could lead to all kinds of misunderstandings and debate about compliance with this criterion.

CRWC thinks the second criterion in this paragraph is a straight forward way to handle this issue. The project has a management plan and an enhancement fund in place for project lands that provides the same benefits as a 200 foot buffer around the reservoir.

F. Threatened and Endangered Species

F-1 Who would verify the claim that there are no T&E species present or affected by the project. Some T&E maps are good but they are seldom 100% complete. Would on site studies be required in situations where there is a lack of information? In the absence of any site specific survey for T&E species the applicant should provide a certification from a state or federal source that no T&E species are present or conduct their own study submitted as part of the application.
F-1 and F-2 These criteria should have language that makes clear that species present in the “Facility project area and/or downstream reach” apply for both of these standards.
F-4 What is a “significant” impact on a T&E species and who determines that?
F-PLUS It seems important to see that this criterion not be loosely interpreted as to allow facilities to get an easy 3 year extension for little actual extra effort and minimal benefit to the environment. LIHI should require state and federal natural heritage agencies’ statements verifying compliance with this criterion.

G. Recreation

G-PLUS CRWC applauds the attitude reflected in this criterion.

H. Cultural Resources

H-1 this criterion needs a bit of additional information as to who decides that there are no cultural resources affected by the facility especially if the SHPO has never done a survey or a survey was never required in any other permitting process. In the absence of any site specific survey for cultural resources the applicant should provide a certification from a state or federal source that no cultural resources are present or conduct their own study submitted as part of the application.
H-PLUS CRWC applauds the attitude reflected in this criterion.

3. Definitions

Adaptive management: Throughout this document CRWC has questioned who is reviewing to see if adoptive management is really in place and taking place. We support the notion but a good idea left in limbo has no positive effect. Our other comment is that management may not be the only appropriate response to an environmental impact. There could be helpful changes in the facility and equipment itself. That should be an added consideration specifically called out in this definition.

Extirpate (also, extirpated and extirpation): This definition limits the focus to fish. A broader scope including the food web such as macroinvertebrates would strengthen this definition. Without a healthy the food web there are no fish. There is no standard in the fisheries definitions calling for a Balanced Indigenous Population review to see that the facility not only has not extirpated a species but also to see that there is a balanced species composition.

Recreational access: The Goal for recreation states that access should be “without fee or charge.” The definition should reflect this consideration.

Run-of-River: This definition should have a temporal aspect added to it. 10% for how long is the question. Example: If an outflow is 10% below inflow on an hourly basis, then how many hours on some regular continuing basis does it take until the facility is no longer operating in a run of river mode. LIHI should spell out at what point LIHI would consider the facility to be pooling water for peak demand discharge.
Science based: This definition should have a temporal aspect added to it so that the latest research is what is acceptable to make the case. Past studies can be helpful but may not be the best information available so if someone is going to rely on a scientific paper it should be the latest one published on the subject.

Site specific basis: Determining natural conditions in a modified river depends on selecting an appropriate reference reach of river for comparison. The selection of the reference reach is vital to determine the actual impact of human interference with the natural system. This definition should be more specific about who selects and how closely the reference reach actually mirrors an undisturbed facility reach.

Water Quality Limited: What the paragraph says is that any facility that causes a reach of water to be on any 303 (d) Part F list is not eligible for certification. If that is the case CRWC applauds the attitude of this definition.

We appreciate the opportunity to submit our comments on the proposed LIHI review criteria. We look forward to responsible changes in the final version.
Sincerely

David L. Deen Upper Valley River Steward
Andrea Donlon Massachusetts River Steward