FLOW 2008 Oct. 7-9, 2008 San Antonio, TX Housatonic River Case Study Melissa Grader U.S. Fish and Wildlife Service

FLOW 2008 Oct. 7-9, 2008 San Antonio, TX POLICY PUBLIC DIALOGUE SCIENCE INSTREAM FLOW DECISION

FLOW 2008 Oct. 7-9, 2008 San Antonio, TX Housatonic River 2 nd largest watershed in CT 1,946 sq. mi. 123 miles long, from MA thru CT

FLOW 2008 Oct. 7-9, 2008 San Antonio, TX Hydropower Relicensing  Regulatory body is the Federal Energy Regulatory Commission  Existing license(s) due to expire  New license lasts years relicensing represented major opportunity to address instream flow issues associated with the Project Impetus for instream flow decision:

FLOW 2008 Oct. 7-9, 2008 San Antonio, TX Housatonic River Project David Ellis; 14 ft. high dam 0.3 mile long bypass reach 24 ft. high dam 2-mile long bypass reach 140 ft. high dam no bypass reach 124 ft. high dam

FLOW 2008 Oct. 7-9, 2008 San Antonio, TX Stakeholders Licensee Resource agencies Anglers Boaters Hikers Lake associations NGOs Tribal nation Abutters Municipalities

FLOW 2008 Oct. 7-9, 2008 San Antonio, TX Issues

FLOW 2008 Oct. 7-9, 2008 San Antonio, TX StakeholderPosition / Goal for Relicensing LicenseeEssentially status quo, with small increases in bypass and below-project flows Resource agenciesImprove water quality; improve bypass and below-project flow regimes; fish passage BoatersNo change to operations at FV and BB AnglersImproved flow regime at FV and BB

FLOW 2008 Oct. 7-9, 2008 San Antonio, TX FERC Process Decision made within what policy context:  FPA governs (re)licensing process  In issuing permits, FERC shall: “...give equal consideration to the purposes of energy conservation, the protection, mitigation of damage to, and enhancement of, fish and wildlife (including related spawning grounds and habitat), the protection of recreational opportunities, and the preservation of other aspects of environmental quality.”  Comprehensive regulations (18 CFR Parts 1 to 399) FERC responsible for determining whether a proposal represents the most comprehensive plan for development of the waterway for all beneficial public uses within the meaning of Section 10(a) of the FPA Relevant sections include 10(a), 10(j), 4(e), 18  Requires consultation with stakeholders and submittal of applicable permits (e.g., CZM, WQC, etc.)

FLOW 2008 Oct. 7-9, 2008 San Antonio, TX FERC Process Decision made within what policy context: 10(j) Recommendations  Pursuant to this section of the FPA, fish and wildlife recommendations must be included in the license unless inconsistent with other Federal Law. Recommendations must provide for protection, mitigation, or enhancement of fish and wildlife Requires dispute resolution with agencies if FERC finds recommendation inconsistent If recommendation not adopted, FERC must find that conditions it selects meet requirements of Section 10(a) “best adapted” to comprehensive development of the waterway

FLOW 2008 Oct. 7-9, 2008 San Antonio, TX Decision made within what policy context: 401 Process  Section 401 of the Clean Water Act requires that an applicant for a federal license or permit provide a certification that any discharges from the facility will comply with the Act, including water quality standard requirements. Goal is to restore and maintain chemical, physical and biological integrity of surface waters, providing for protection and propagation of fish, shellfish, and wildlife and provide for recreation in and on the water  Implemented through State’s 401 process Must ensure project meets water quality standards  narrative and numerical criteria  existing uses (anti-degradation)  designated uses  Courts consistently ruled that that FERC must include all conditions of 401 certificate in a project license (unless authority is waived)  States differ in 401 process (e.g., appeals, reserved authority)

FLOW 2008 Oct. 7-9, 2008 San Antonio, TX Science: FERC & 401 both rely on it  Need sound and thorough administrative record upon which to base decisions  Scientific method should be proven  FERC process requires applicant and agencies to propose studies, and consult on study design For the Housatonic River Project, decision made to use IFIM and IDF **both serve to evaluate relationship between habitat and flow** IFIM  Used below FV and BB, and in lower BB bypass reach  Conducted three analyses with data

FLOW 2008 Oct. 7-9, 2008 San Antonio, TX Flow Studies 1. Habitat vs. Flow

FLOW 2008 Oct. 7-9, 2008 San Antonio, TX * For trout fry in summer 2. Habitat Time Series

FLOW 2008 Oct. 7-9, 2008 San Antonio, TX 3. Dual-Flow

FLOW 2008 Oct. 7-9, 2008 San Antonio, TX Flow Studies IDF ~ FV and upper BB bypass reaches and d/s of Stevenson dam

FLOW 2008 Oct. 7-9, 2008 San Antonio, TX Public Dialogue: FERC  Under TLP, a number of points in process allow for public participation/involvement applicant holds public meeting after filing the ICD public notice issued once application is filed with FERC (soliciting comments/study requests) subsequent notice soliciting protests & interventions opportunity for public to weigh in on FERC’s SD for NEPA analysis Notice of REA allowing for public comment prior to conducting NEPA public comment period after DEA/DEIS issued any intervenor has ability to appeal license

FLOW 2008 Oct. 7-9, 2008 San Antonio, TX 401  CT DEP issued draft 401 ROR and bypass flows at FV and BB, and base flow at Shepaug and Stevenson  Provided public with opportunity to comment within 45 days (posted on website, in major newspapers)  Subsequently issued final 401 along with summary of response to comments received Public Dialogue:

FLOW 2008 Oct. 7-9, 2008 San Antonio, TX CT DEP issued WQC requiring:  run-of-river at FV and BB  bypass flows at FV, BB  below-project flows at Stevenson  headpond fluctuation limits at Stevenson and Shepaug  DO enhancement at Shepaug  fish passage  pumping restrictions at Rocky River  various plans (monitoring, fish passage water quality, etc.) FWS issued CRP letter including 10(j) recommendations and Sect. 18 Prescription  consistent with 401 conditions  minimum flow below Shepaug Neither 401 nor fishway prescription appealable, so became part of the license issued by FERC Relicensing Outcome

FLOW 2008 Oct. 7-9, 2008 San Antonio, TX POLICY PUBLIC DIALOGUE SCIENCE INSTREAM FLOW DECISION In FERC-driven process, policy and science contribute more than public dialogue to the decision Thames River Side Agreement  MOA signed by FWS, CTDEP and NGS  Calls for fish passage at 2 non-jurisdictional hydro projects on the Thames watershed

FLOW 2008 Oct. 7-9, 2008 San Antonio, TX Lessons Learned  Particulars of this licensing facilitated a specific outcome licensing process chosen 401 and Sect. 18 authorities off-site restoration opportunities  Coordination between DEP and FWS enhanced outcome Applicability to other Projects?  Likely not broadly applicable unique set of circumstances  Landscape very different now TTH/AFP for S. 18 new ILP

FLOW 2008 Oct. 7-9, 2008 San Antonio, TX Taftville, unlicensed Shetucket River Tunnel, unlicensed Quinebaug River