September 1, 2021
Honorable Kimberly D. Bose Secretary
Federal Energy Regulatory Commission
888 First Street, NE
Washington, DC 20426
Re: Comments on Great River Hydro Offer of Settlement and Revisions to Exhibit D Documents dated August 2, 2022 regarding (Wilder) P-1892-030; (Bellows Falls) P-1855-050, and (Vernon) P-1904-078.
Dear Secretary Bose,
The Connecticut River Watershed Council, Inc. (CRWC), now doing business as the Connecticut River Conservancy (CRC), is a nonprofit citizen group established in 1952 to advocate for the protection, restoration, and sustainable use of the Connecticut River and its four-state watershed. We have been participating in the relicensing of the five hydropower facilities on the Connecticut River since the beginning of the process in late 2012.
American Whitewater (AW) is a national non-profit 501(c)(3) river conservation and recreation organization founded in 1954 whose mission is to protect and restore our nation’s whitewater resources and to enhance opportunities to enjoy them safely. Our members are primarily conservation-oriented kayakers and canoeists, many of whom live and/or engage in recreational boating in Vermont, and New Hampshire. As a result, we have a strong and direct interest in the availability of whitewater flows on the Connecticut River below the Wilder and Bellows Falls dams.
Since 1876, the Appalachian Mountain Club (AMC) has promoted the protection, enjoyment, and understanding of the mountains, forests, waters, and trails of the Appalachian region. AMC is the largest conservation and recreation organization in the Northeast with more than 90,000 members, supporters, and advocates, many of whom live within two hours of the Connecticut River and would use the Sumner Falls and Bellows Falls sections of the Connecticut River for whitewater boating and the rest of the river and surrounding lands for quieter recreation.
CRC participated in negotiations with Great River Hydro (GRH) conducted during 2020 that resulted in the Memorandum of Understanding (MOU) filed in December of 2020. CRC, AMC, and AW did not participate in the negotiations that have resulted in the current Settlement Agreement for Fish Passage, which were filed on August 2, 2022.
CRC, AMC, and AW have reviewed the Great River Hydro Offer of Settlement and Revisions to Exhibit D Documents dated August 2, 2022, and is grateful for the positive progress in this effort. CRC, AMC, and AW collectively provide the following specific comments that consist of these main points:
- Great River Hydro should be responsible for the removal of the Salmon Dam at the Bellows Falls project as mitigation for impacts to the fishery.
- We support the extended period for operations of fish ladders in the spring to accommodate in river migration of resident species.
- Timelines for additional studies and implementation are too long to sufficiently protect our federal trust species and subsequently are not in the public interest.
- Fish passage performance standards should be included for American eel and Sea lamprey.
GRH indicates in its transmittal letter that “The Agreement is a product of extensive discussions among the parties over more than a year and is the second of two settlement agreements in these relicensing proceedings.” CRC does not recall the MOU from 2020 being filed as a settlement agreement, pursuant to 18 C.F.R. § 385.602(b)(2) (2021), instead it was included in the Amended Final License Application as a preferred alternative. Due to that, there was no notice issued from FERC that provided an opportunity for the public to comment on that MOU regarding changes in operations. CRC points this out only as a procedural nature to clarify if there should have been a formal public comment period regarding the December 2020 MOU. We note that neither the MOU nor this Offer of Settlement is a comprehensive settlement agreement in that it does not address all project impacts including but not limited to project effects on the recreational use and enjoyment of the Connecticut River, erosion concerns, and consideration of Traditional Cultural Properties.
SUMMARY OF OUR COMMENTS
In general, the settlement discussion as written is difficult to understand, which means that it may become unenforceable later. There are references in Appendix B to areas of the settlement that don’t seem to exist and tasks that seem to be the same thing listed multiple times (for example: “220.127.116.11 OPERATE PERMANENT UPSTREAM EEL/SEA LAMPREY LADDER IMPROVEMENTS” and “18.104.22.168 OPERATE & MONITOR INTERIM UPSTREAM EEL/SEA LAMPREY LADDER IMPROVEMENTS” and “22.214.171.124 IF NO FURTHER STUDY: OPERATE PERMANENT EEL PASSAGE 7/16 -11/15” CRC is aware of other licensing processes that became contentious due to the lack of clear language in agreements. The settlement agreement should be edited for clarity.
1.14 Withdrawal Rights
GRH indicates that, “a Party may unilaterally withdraw from this Agreement if… (ii) NHDES or VDEC issues a Water Quality Certification that contains fish passage conditions that are materially additive to, or materially inconsistent with, the terms of this Agreement and the Water Quality Certification is not thereafter satisfactorily modified after administrative and judicial appeals are pursued by the Licensee.” Neither VT DEC, nor NH DES are signatories to this agreement. VT Fish and Wildlife and NH Department of Fish and Game are both sister agencies to the agencies that hold authority over the 401-certification process. We are unclear how VT DEC or NH DES can be held to this part of the agreement when neither have signed on to this agreement and they are both required to conduct a public process and consider public input when the 401 certification is drafted.
2.5 Support for Removal of Salmon Dam
We appreciate the licensee’s agreement to support removal of the Salmon Dam, but disagree with the language of this section, specifically that the “The Licensee… in no event shall be responsible for financing removal efforts.” The installation of this dam was to limit false attraction as part of providing effective fish passage under the last license. (See enclosure which documents the licensee’s construction process.) Similarly, removal of this dam would mitigate the hydro project’s impacts to the fishery, which only occur because of the presence of the project and the diversion of flow in the river. As the focus of fishery restoration efforts have changed from Atlantic Salmon to American eel and Sea lamprey at the Bellows Falls facility, it follows that mitigation be provided to support the restoration of those species.
Removal is reasonably an obligation of GRH, and they are best able to do the removal given their capacity. Additionally, we are in an unprecedented moment in terms of the amount of Federal funding that is being directed to hydro-electric facilities to support efficiencies and upgrades. The recently passed Infrastructure Investment and Jobs Act provides $553,600,000 in incentive payments to cover up to 30% of the cost of upgrades for “adding or improving safe and effective fish passage, including new or upgraded turbine technology, fish ladders, fishways, and all other associated technology, equipment, or other fish passage technology to a qualified hydroelectric facility.“ Congressional staff indicates that this is considered a “down payment” for ongoing additional investments in improving and upgrading hydro-power assets nationally.
Currently, third party restoration funding for the removal of unused dams is primarily derived from public sources. It is unconscionable that public restoration money be required to remove this dam when public funding is also being passed through to hydro facilities for exactly these types of mitigation measures. This dam is in the project area, was installed there because of project impacts, and the removal of it is now a needed mitigation measure for protected fish species that have been impacted by the presence of the dam. There is no reason that Great River Hydro should not bear the cost of this mitigation effort.
3.1 General fish passage obligations of Licensee
CRC supports the extended period in spring that the fish ladders will be operated to support the spawning needs of resident early spring spawners such as walleye and white suckers. This example is an important improvement from Great River Hydro and acknowledges that mitigation for impacts from hydro facilities should not be limited only to migratory species.
3.4 Fish Passage and Protection Measures at the Vernon Project
The timeline for implementation is too long. The relicensing process has been going on for 10 years and the licensee has understood capital improvements would be required for improvements to fish passage. A schedule that allows a full sixteen years after license issuance to upgrade fish passage means that safe and effective passage has been delayed for 26 years, plus the time between now and when the new license is issued. We note that the criteria for evaluating fish passage is that it should be safe, effective, and timely [emphasis added]. This proposal is not timely nor defensible. Delays of this magnitude should not be acceptable.
3.4.1 Downstream Passage and Protection (Vernon)
Regarding Vernon downstream passage, the licensee indicates that they, “shall undertake a hydraulic study or a suitable alternative, designed to inform downstream passage/design options… no later than January 1 of License Year 2; the study initiated, completed, and reported on no later than December 31 of License Year 3.”
Assuring safe, effective, and timely fish passage is a routine aspect of relicensing. After-the-fact studies and improvements are conditions subsequent that effectively remove fish passage from the public relicensing process. This hydraulic study should have been done as part of the overall licensing studies that took place between 2013 and 2018. Delaying it another four of five years (when we consider the length of the 401 process and timeline for issuance of license) is unreasonable. We request that the hydraulic study begin immediately so that upgrades to the ladder can begin in the first year when the license is issued.
The settlement states the following timeline for implementation, “The Licensee shall initiate design consultation with the Agencies no later than July 1 of License Year 3, and final design plans (sufficient for construction bid purposes) shall be completed no later than December 31 of License Year 4. Construction shall be initiated during License Year 5 and completed no later than December 31 of License Year 6.” This implies it would take 18 months to develop a design and 2 years to complete construction for downstream passage at Vernon. While we understand that there may be some difficulty in finding an effective way to move American shad downstream and keep them out of the turbines, this length of time is excessive, and we reiterate that hydraulic studies should be done now. Taking 6 years (after license issuance! – so really 8 or more years) to establish effective downstream passage at Vernon is too long and is not in the public interest.
3.4.2 Upstream American Eel and Sea Lamprey Passage
126.96.36.199 Within Ladder Measures for Eel and Lamprey Passage for the period April 7 through July 15
The licensee indicates that they, “shall undertake a hydraulic study within the existing Vernon fish ladder… (this is the same hydraulic study and engineering assessment discussed under section 3.2.3).” There is no section 3.2.3 so it is not clear what the applicant is referring to.
It is important to prioritize downstream passage at Vernon given the mortality to American shad and American eel at that project. Upstream passage improvements could logically be scheduled slightly later, but according to the settlement agreement, it will take 4 years to complete the hydraulic study and 5 years to complete a PIT tag study to understand upstream passage performance of American eel and Sea lamprey within the Vernon fish ladder. Most studies done during relicensing were completed within 1 or 2 years. Four or five years seems an excessive period to establish baseline understanding, which should have been done during the past decade as a part of relicensing studies. Assuring safe and effective fish passage is a routine aspect or relicensing. After-the-fact studies and improvements are conditions subsequent that effectively remove fish passage from the public relicensing process.
188.8.131.52 Within Ladder Interim Measures for Eels for the period July 16 through November 15
Study 18 American Eel Upstream Passage Assessment, completed between 2015 and 2018, already established a temporary eel ramp for passing American eel upstream. Yet, the settlement document indicates that, “eel passage facilities shall be completed by July 15 of License Year 3 and shall be fully operational no later than July 16 of License Year 3.” Given that the licensee and the agencies were able to establish a temporary upstream passage process for Study 18, why would they require 3 years to design a new temporary passage? Study 18 Supplement #2 states, “The eel ramp design was based on the Haro (2013) generic temporary eel ramp trap design modified for the site.” If a generic eel ramp has already been installed for the studies, we assume that it could be re-installed immediately and then enhanced or modified as passage numbers are assessed over the coming immediate years, instead of waiting five years to begin this effort again.
3.4.3 Upstream Anadromous Fish Passage
We are pleased to see that the settlement agreement includes “improvements to the public viewing window and counting room.” It is unfortunate that there is not more detail as to what those improvements will entail. Currently the public viewing window is outside in the elements with little to no interpretation to help the public understand fish passage or species. It is a less than welcoming attraction and would benefit with a major reconstruction to provide a comprehensive visitors center with interpretation, which would bring added benefit to the Town of Vernon. Exhibit D indicates that the licensee anticipates this effort to cost $180,000. We request that additional detailed information be provided to explain exactly what the upgrades will consist of and provide an opportunity for the public and the Town of Vernon to comment.
3.5 Fish Passage and Protection Measures at the Bellows Falls Project
3.5.1 Downstream Passage and Protection (Bellows Falls)
The applicant states, “In License Years 3 and 4, the Licensee shall undertake a hydraulic study… to inform downstream passage… for American eel.” Immediately after that, they state that they will consult on study design in year 6 and report on the study in year 7. The Appendix B chart indicates that the hydraulic studies for eel and lamprey would occur in years 5 and 6. It is difficult to follow the sequence of events planned for fish passage improvement, and subsequently, as indicated above, it will be difficult to enforce this settlement.
All of the various potential scenarios indicated above for hydraulic study at Bellows Falls are too long. We restate our comments regarding Vernon, this hydraulic study should more properly have been done as part of the overall licensing studies that took place between 2013 and 2018. Delaying it another five to nine years (when we consider the length of the 401 process and timeline for issuance of license) with the potential for effective passage to be installed in year 10-12 is unreasonable and not in the public’s interest. We request that the hydraulic study begin immediately so that upgrades to the ladder can begin in the first year when the license is issued. Assuring safe and effective fish passage is a routine aspect or relicensing. After-the-fact studies and improvements are conditions subsequent that effectively remove fish passage from the public relicensing process.
3.5.2 Upstream American Eel and Sea Lamprey Passage
184.108.40.206 Within Ladder Measures for Eel and Lamprey Passage for the period April 1 through July 15
The settlement agreement proposes a two-stage process for assessing upstream passage efficiency at Bellows Falls for American eel and Sea lamprey. We reiterate our concern that the timeline of all studies and implementation processes are too long. For Bellows Falls, the settlement contemplates a PIT tag study for upstream passage in years 3 and 4 with a hydraulic study of the fish ladder in years 5 and 6. There is no reason that the PIT tag study and hydraulic study cannot occur at the same time. It would be more efficient and economical to conduct hydraulic studies at the same time for all three projects, thereby identifying issues in the fish ladders at the outset of the process. We already have evidence of American eel and Sea lamprey passing through the ladders at these projects, the hydraulic studies can and should be done immediately.
220.127.116.11 Permanent Upstream Eel Passage Measures in the Bellows Falls Bypass Reach
The licensee indicates a timeline for assessment of where American eel congregate once the Salmon dam is removed. If the licensee were to properly remove this dam, that action could be scheduled by them within a reasonable timeline. If the licensee is relying on third parties with public grant funds to remove the dam, the schedule of that depends on the pace of grant acquisition, engineering designs, and construction constraints. Given this, we suggest that GRH be required to remove the Salmon dam immediately upon the issuance of the license and that the language be altered to strike the reference to a year and simply state that, “The Licensee shall initiate consultation with the Agencies on an eel survey study plan no later than July 1 of the year the Salmon Dam is removed or License Year 6, whichever is later. The first passage season after removal of the Salmon Dam or License Year 7, whichever is later, the Licensee shall undertake the upstream eel survey…” to ensure that American eel that pass up the bypass reach are quickly protected and provided with an effective upstream passage pathway.
3.6 Fish Passage and Protection Measures at the Wilder Project
3.6.1 Downstream Passage and Protection
We restate our comments regarding downstream passage at Vernon and Bellows Falls, this hydraulic study should more properly have been done as part of the overall licensing studies that took place between 2013 and 2018. Delaying it, in this case, 16 years after license issuance is unreasonable time to wait and not in the public’s interest. Assuring safe and effective fish passage is a routine aspect or relicensing. After-the-fact studies and improvements are conditions subsequent that effectively remove fish passage from the public relicensing process.
3.6.2 Upstream American Eel and Sea Lamprey Passage
18.104.22.168 Within Ladder Measures for Eel and Lamprey Passage for the period April 7 through July 15
Additionally, the settlement seems to contemplate improvements to upstream passage at Wilder before completing effective downstream passage. The timeline for downstream passage assumes fully operational downstream passage in year 16, while the upstream passage would be “fully operational no later than April 7 of License Year 14.” The improvements for downstream passage should occur before upstream passage improvements and simultaneously with downstream passage improvements at Bellows Falls and Vernon.
3.7. Fish Passage Facilities Operations and Maintenance Plan
The settlement indicates that the “[annual fishway Operation and Maintenance] O&M report shall be submitted to the Agencies by January 31 annually.” This annual report should be filed with FERC as well to provide transparency for the public.
3.8 Fish Passage Facilities Effectiveness Testing
We are very grateful that effectiveness testing has been included as a consideration for ongoing improvements and that upstream and downstream performance standards have been established for American shad at Vernon. We note that the agencies have a “goal of 95% through-project survival for American eels” for downstream passage, but it is not clear whether this also is formally included as a performance standard as it is not explicitly stated. Additionally, there are no performance standards for upstream passage for Sea lamprey or American eel. We would prefer to see a more comprehensive chart that establishes performance standards for all three migratory species (American shad, American eel, and Sea lamprey) for upstream and downstream passage at all three facilities clearly outlined as part of this settlement.
In summary, we appreciate the many hours that both Great River Hydro staff and the agency’s staff contributed to coming to agreement on fish passage. There are positive aspects to this settlement, but improvements can also be made. Relicensing studies have shown injury and mortality impacts to American eels and American shad as they attempt to out migrate through the turbines. Safe, effective, and timely downstream passage for American eel and American shad should be the priority action in this fish passage agreement, with swift improvements to upstream passage occurring first at Vernon, followed by Bellows Falls and Wilder. All of the hydraulic studies to assess downstream passage should be done simultaneously to create efficiencies in the process. Great River Hydro states that the “Agreement is in the public interest.” It is in fact only in the public interest if fish passage is improved in a timely manner.
We appreciate the opportunity to comment. I can be reached at firstname.lastname@example.org or (802) 258-0413.
Connecticut River Conservancy
Appalachian Mountain Club
- Bellows Falls Salmon Dam construction reports
John Ragonese, Great River Hydro; email@example.com
Ron Shems; firstname.lastname@example.org
Jeff Crocker, VT DEC; email@example.com
Eric Davis, VT DEC; firstname.lastname@example.org
Betsy Simard, VT DEC; email@example.com
Lael Will, VT Fish and Wildlife; firstname.lastname@example.org
James Tilley, NH DES; email@example.com
Matt Carpenter, NH Fish and Game; firstname.lastname@example.org
Melissa Grader, US Fish and Wildlife Service; email@example.com
Ken Sprankle, US Fish and Wildlife Service; firstname.lastname@example.org
Rebecca Ellis, (Rep. Peter Welch); email@example.com
Tom Berry, (Sen. Patrick Leahy); Tom_Berry@leahy.senate.gov
Haley Pero, (Sen. Bernard Sanders); Haley_Pero@sanders.senate.gov
Charlotte Harris, (Rep. Annie Kuster); firstname.lastname@example.org
Sarah Holmes, (Sen. Jeanne Shaheen); Sarah_Holmes@shaheen.senate.gov
Chris Scott, (Sen. Jeanne Shaheen); Chris_Scott@shaheen.senate.gov
Peter Clark, (Sen. Jeanne Shaheen); email@example.com
Kerry Holmes, (Sen. Maggie Hassan); Kerry_Holmes@hassan.senate.gov
 Great River Hydro “Offer of Settlement and Revisions to Exhibit D Documents.” Transmission Letter dated August 2, 2022. Page 2.
 See Appendix B. “3.4.3 Hydraulic and Engineering Assessment of Ladder shad passage same as 22.214.171.124”
 See Appendix B. Page 1.
 Great River Hydro “Offer of Settlement and Revisions to Exhibit D Documents.” Settlement Agreement for Fish Passage. Page 5.
 Great River Hydro “Offer of Settlement and Revisions to Exhibit D Documents.” Settlement Agreement for Fish Passage. Page 8.
 42 USC § 15883. (b)(3)(A).
 See: https://kuster.house.gov/news/documentsingle.aspx?DocumentID=4522
 Great River Hydro “Offer of Settlement and Revisions to Exhibit D Documents.” Settlement Agreement for Fish Passage. Page 10.
 Ibid. Page 11.
 See ILP Study 18 American Eel Upstream Passage Assessment Study Report dated March 1, 2016; Supplement to Study Report dated November 30, 2016; and Supplement #2 to Study Report dated January 26, 2018.
 ILP Study 18 American Eel Upstream Passage Assessment Study Report. Supplement #2 to Study Report dated January 26, 2018. Page 3.
 Great River Hydro “Offer of Settlement and Revisions to Exhibit D Documents.” Settlement Agreement for Fish Passage. Page 13.
 Ibid. Page 14.
 Great River Hydro “Offer of Settlement and Revisions to Exhibit D Documents.” Settlement Agreement for Fish Passage. Appendix B: Project Specific Fish Passage Implementation Chart. Page 1
 Great River Hydro “Offer of Settlement and Revisions to Exhibit D Documents.” Settlement Agreement for Fish Passage. Page 18.
 Ibid. Page 19.
 Ibid. Page 20.
 Ibid. Page 21.
 Ibid. Page 2.