UNITED STATES OF AMERICA
`BEFORE THE
`FEDERAL ENERGY REGULATORY COMMISSION
`
`
`Eagle Creek Hydro Power, LLC
`Eagle Creek Water Resources, LLC
`Eagle Creek Land Resources, LLC
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`
`)
`)
`)
`)
`)
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`Project Nos. 10482-122
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`
`10481-069
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`9690-115
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`COMMENTS OF
`EAGLE CREEK HYDRO POWER, LLC;
`EAGLE CREEK WATER RESOURCES, LLC; AND
`EAGLE CREEK LAND RESOURCES, LLC
`ON THE ENVIRONMENTAL ASSESSMENT
`ISSUED FOR RELICENSING OF MONGAUP RIVER PROJECTS
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`Pursuant to the Notice of Availability of the Environmental Assessment (“EA”) for the
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`relicensing of the Swinging Bridge Hydroelectric Project (FERC Project No. 10482), Mongaup
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`Falls Hydroelectric Project (FERC Project No. 10481), and Rio Hydroelectric Project (FERC
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`Project No. 9690) (collectively, “Mongaup River Projects” or “Projects”), issued on September
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`28, 2022 by the Federal Energy Regulatory Commission (“FERC” or “Commission”), Eagle
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`Creek Hydro Power, LLC; Eagle Creek Water Resources, LLC; and Eagle Creek Land Resources,
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`LLC (collectively, “Licensees”), as co-licensees for the three Mongaup River Projects, hereby
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`submit their comments on the EA.
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`The Licensees appreciate Commission Staff’s tremendous work in preparing the EA. The
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`three Mongaup River Projects are inextricably intertwined, and balancing the interests in the
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`water resources that comprise the three Projects required extensive discussions and negotiations
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`with stakeholders representing these interests. In the end, the Licensees and stakeholders
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`negotiated an Offer of Settlement as well as an accompanying Water Budget Protocol that
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`memorialized the key concessions and resolutions achieved during the discussions.1 The EA
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`demonstrated that Commission Staff expended considerable time in understanding the complex
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`water resource issues inherent in the relicensing of the Mongaup River Projects and how the Offer
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`of Settlement and Water Budget Protocol resolved those issues. In the EA, Commission Staff
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`recommended adoption of many of the license terms and conditions proposed in the
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`comprehensive Offer of Settlement.
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`Yet, Commission Staff also recommends some modifications to the carefully crafted
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`license articles that could result in unintended deviations from the settlement terms and declines
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`to adopt negotiated terms that Licensees and stakeholders propose for inclusion in the license
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`articles. The Licensees wish to note that substantive modifications to the carefully crafted,
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`consensus-based measures adopted in the Offer of Settlement are antithetical to the
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`Commission’s policy of encouraging settlement agreements in hydroelectric relicensing
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`proceedings.2
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`The Licensees urge the Commission to uphold the Offer of Settlement and maintain as
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`negotiated the provisions that Commission Staff proposed for modification or elimination.
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`I.
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`BACKGROUND
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`On March 30, 2017, the Licensees formally initiated the relicensing process pursuant to
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`the Commission’s Integrated Licensing Process with the filing of a Notice of Intent (“NOI”)
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`and Pre-Application Document (“PAD”).3 Since the filing of the NOI/PAD, the Licensees
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`have worked extensively with numerous federal and state resource agencies, recreation groups,
`
`
`1 FERC Accession No. 20210528-5522
`2 Settlements in Hydropower Licensing Proceedings Under Part I of the Federal Power Act, 116
`FERC ¶ 61,270 (2006).
`3 FERC Accession Nos. 20170330-5442, 20170330-5443, 20170330-5444
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`landowners with property interests along the Projects reservoirs, and general members of the
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`public. As a group, the participants in the relicensing process collaboratively developed
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`relicensing goals and designed and revised water models that would balance the interests of the
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`participants.
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`The Licensees and the stakeholders established an inclusive and open process for
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`discussing the myriad of resource issues connected to the Mongaup River Basin and means of
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`achieving the relicensing goals. To this end, the Licensees engaged a third-party mediator,
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`agreed upon by multiple stakeholders, with experience in the relicensing of FERC-licensed
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`hydropower projects in New York and with familiarity of the key stakeholders anticipated to be
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`active in the relicensing effort. Between March 2020 and February 2021, the mediator convened
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`13 formal negotiation sessions, many of which were held over two days. In these full-group
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`negotiation sessions, the Licensees and stakeholders identified resource issues and engaged in
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`extended dialog to resolve the resource issues. Outside of the full-group negotiating sessions,
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`Licensees, stakeholders, and the mediator scheduled numerous smaller group meetings to
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`efficiently resolve specific issues and establish common ground.
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`From March 2020 until May 2021, the Licensees and stakeholders explored numerous
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`operating scenarios using the models developed during the relicensing studies and analyzed
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`relicensing study data and relevant scientific literature. In particular, the Licenses and
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`stakeholders worked from, and evaluated relicensing proposals by modifying, flow models to
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`balance the resource issues. The Licenses and stakeholders also developed and discussed
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`numerous licensing measures intended to carefully balance developmental and non-
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`developmental interests in the water resources.
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`These discussions culminated in a complete settlement of the issues related to the
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`relicensing of the Mongaup River Projects. The settlement was memorialized by the Licensees
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`and stakeholders in the form of the Offer of Settlement that was filed with the Commission in
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`the relicensing proceeding on May 28, 2021. The Offer of Settlement included appropriate
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`protection, mitigation, and enhancement (“PM&E”) measures for the new license term.
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`Importantly, the flow models used by the Licensees and stakeholders became the basis of the
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`Water Budget Protocol that the relicensing participants anticipated would govern the Projects’
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`operations, and the Water Budget Protocol was appended to the Offer of Settlement as
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`Attachment A. In addition to the Water Budget Protocol, the Offer of Settlement included the
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`following as attachments:
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` A methodology for calculating projected flows at Callicoon (in order to comply with
`proposed PM&Es related to the protection of dwarf wedgemussels) (Appendix B),
` A Bald Eagle Management Plan (Appendix C),
` A Northern Long-Eared Bat and Indiana Bat Protection Plan (Appendix D),
` An Invasive Plant Species Management Plan (Appendix E),
` A Map of the Black Brook Development (Appendix F), and
` Proposed license articles for each of the three Mongaup River Projects (Appendices G
`through I).
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`The Offer of Settlement also included several Off-License Agreements (Section 4), which the
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`Licenses and stakeholders acknowledged were beyond the authority of the Commission to
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`enforce.
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`
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`On September 28, 2022, the Commission issued the EA for the relicensing of the
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`Mongaup River Projects. The accompanying notice provided interested parties 45 days to
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`provide comments, which establishes November 14, 2022 as the deadline for the submission of
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`comments on the EA.
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`II.
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`COMMENTS ON THE EA
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`A.
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`Over-Arching Comments
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`As a threshold matter, the Licensees believe that Commission Staff’s analysis and
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`recommendations in the EA were largely supportive of the technical record developed in this
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`relicensing proceeding and consistent with the Offer of Settlement and Water Budget Protocol.
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`As indicated above, the Offer of Settlement, and the PM&E measures contained therein, were the
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`result of extensive and collaborative discussions among a variety of stakeholders representing
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`different interests in the water resources over more than a year of intense discussions. The Offer
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`of Settlement balances the competing power and non-power resource interests at the Projects. In
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`particular, the Water Budget Protocol establishes a comprehensive manner of regulating the
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`water flow for the benefit of all stakeholders. In the EA, Commission Staff recommended that
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`the vast majority of PM&Es, proposed license articles, and the Water Budget Protocol be
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`incorporated into new licenses for the Projects. Specifically, in the EA, Commission Staff
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`recommended that the Commission grant new licenses to the Licensees with such licensing order
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` directing the Licensees to operate the Swinging Bridge Project in conformance
`with the Water Budget Protocol;
` adopting the operational requirements (minimum flow releases and ramping rates)
`contained in the Offer of Settlement for the Mongaup Falls and Rio Projects;
` directing the Licensees to submit a Shoreline Management Plan for the Swinging
`Bridge Project consistent with the terms contained in the Offer of Settlement and
`in consultation with stakeholders that worked to develop these terms;
` directing the Licensees to submit Recreation Management Plans for all three
`Projects consistent with the terms contained in the Offer of Settlement and in
`consultation with stakeholders that worked to develop these terms;
` directing the Licensees to submit a Whitewater Flow Management Plan for the
`Rio Project consistent with the terms contained in the Offer of Settlement and in
`consultation with stakeholders that worked to develop these terms; and
` approving the Bald Eagle Management Plan, Northern Long-Eared Bat and
`Indiana Bat Protection Plan, and Invasive Plant Species Management Plan
`appended to the Offer of Settlement.
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`The Licensees appreciate Commissions Staff’s careful examination of the Offer of Settlement
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`and Water Budget Protocol. The Commission Staff’s endorsement of the proposed license
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`articles, PM&Es, and the Water Budget Protocol described above recognizes and validates
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`the effort expended by the parties to achieve a resolution of the issues attendant with the
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`relicensing of the Mongaup River Projects.
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`Nevertheless, the Commission Staff alternative also recommended a number of
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`modifications to the measures included in the Offer of Settlement and endorsed by the
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`settling parties. Among the modifications, Commission Staff proposed to eliminate certain
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`measures included in the Offer of Settlement. Among the significant departures from the
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`Offer of Settlement, the Staff alternative proposal
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` declined to incorporate into Article 401 of each Project license a requirement that
`the Licensees notify affected landowners/users of planned or unplanned
`deviations after obtaining concurrence from the resources agencies or notifying
`the Commission;
` declined to adopt a license article that would require the Licensees to hold an
`annual meeting of affected stakeholders to discuss the functioning of the Water
`Budget Protocol and whether to propose modifications of same to preserve the
`balancing of interests intended by the stakeholders;
` declined to adopt a license article that would serve as a reservation of rights for
`both the Licensees and stakeholders to approach the Commission with proposed
`modifications of the Water Budget Protocol in Years 16 and 31 of the new license
`term;
` declined to incorporate into the Mongaup Falls License a license article that
`would specify a dissolved oxygen standard for that Project;
` declined to incorporate into the Rio License a license article that would serve as a
`limitation on generation when such generation could reasonably be expected to
`affect the Delaware River upstream of the confluence with the Mongaup River;
`and
` declined to incorporate into the Rio License a license article that would require
`the Licensees to adjust flows for the protection of dwarf wedgemussel populations
`in the Delaware River downstream of the confluence with the Mongaup River.
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`Commission Staff’s divergences from the Offer of Settlement are unsettling to the
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`Licensees and to the stakeholders that worked tirelessly to achieve a resolution of the issues
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`presented by the relicensing of the Mongaup River Projects and attain a balance of the impacted
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`water resources. The Commission Staff alternative would modify critical provisions of the Offer
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`of Settlement that were carefully negotiated and crafted by the settling parties and upsets the
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`delicate balance reached by the settling parties on interrelated and, at times, competing resource
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`issues. Incorporation of these Staff recommendations in the new license would risk upheaval of
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`the Offer of Settlement.
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`Moreover, adopting Commission Staff recommendations would be fundamentally
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`inconsistent with the Commission’s policy of encouraging settlements.4 In fact, in its Policy
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`Statement on Hydropower Licensing Settlements, the Commission has stated that it “looks with
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`great favor on settlements in licensing cases.”5 As indicated above, the settling parties have
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`expended considerable resources and deployed their expertise in identifying relicensing goals
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`and then investigating and crafting responsive PM&E measures memorialized in the Offer of
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`Settlement. Adoption of the Commission Staff’s recommendations could cause these and
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`other stakeholders to question their participation in future licensing settlements. The
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`Commission should not undermine the foundation of the resolutions achieved in the Offer of
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`Settlement by modifying carefully crafted PM&Es designed to address Project-related effects.
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`The Licensees understand that, as described in the Policy Statement,6 the Commission
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`has independent responsibilities under the Federal Power Act and the National Environmental
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`
`4 Settlements in Hydropower Licensing Proceedings Under Part I of the Federal Power Act, 116 FERC
`¶ 61,270.
`Id. at P 1.
`Id. at PP 3-4.
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`5
`6
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`Protection Act (“NEPA”) to examine the greater public interest and to evaluate the effect of its
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`proposed actions on the environment. Yet, the Offer of Settlement, as well as the PM&Es and
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`Water Budget Protocol contained therein, is fully within the Commission’s jurisdiction to
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`enforce, satisfies and exceeds all requirements under the Federal Power Act, and accommodates
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`all public interest considerations applicable to the Project during the new license term. In light
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`of the tremendous efforts to reach agreement among the settling parties and in furtherance of its
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`strong policy of encouraging settlements, the Licensees strongly urge the Commission to adopt
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`the provisions of the Offer of Settlement that Commission Staff declined to endorse.
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`B.
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`Comments on Draft License Articles
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`In addition to negotiating an Offer of Settlement and Water Budget Protocol that
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`resolved all resource issues in connection with the relicensing of the Mongaup River Projects,
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`the Licensees and stakeholders also crafted proposed license articles for each Mongaup River
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`Project. The proposed license articles were appended to the Offer of Settlement as Appendices
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`G, H, and I (applicable to the Swinging Bridge, Mongaup Falls, and Rio Projects, respectively).
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`Similarly, the EA included draft license articles based on Commission Staff’s analysis and
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`recommendations.
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`Comparing the draft license articles appended to the Offer of Settlement with the
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`Commission Staff’s draft license articles reveals that Commission Staff is proposing
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`modifications to certain proposed license articles. For certain license articles (such as those
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`related to recreation, shoreline management, and whitewater flows), Commission Staff
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`eliminated the complexity in the proposed license article by specifying that the Licensees would
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`be required to develop a plan that is consistent with the terms contained in the Offer of
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`Settlement. For other proposed license articles, Commission Staff proposed to consolidate
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`multiple requirements contained in various license articles into a single license article. In short,
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`the license articles as modified by Commission Staff evince an intent to streamline, but not
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`modify, the requirements contained therein.
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`Eagle Creek notes that Draft Articles 401, in particular, for all three Projects appear to
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`make seemingly clerical revisions to the language of the negotiated license articles appended to
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`the Offer of Settlement that would substantively alter the Licensees’ obligations. As an initial
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`matter, the Licensees note that Draft Articles 401 consolidated the operational requirements of
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`each Project into a single license article. Draft Article 401 for the Swinging Bridge Project
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`would require the Licensees to eliminate from the Water Budget Protocol any references to the
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`Mongaup Falls or Rio Project such that the Water Budget Protocol concerns only the Swinging
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`Bridge Project. The Licensees note that, during the settlement discussions, the parties discussed
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`the operation of the three Projects on a coordinated basis and thus developed the Water Budget
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`Protocol to apply to all three Projects. Nevertheless, as Commission Staff acknowledges, the
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`primary purpose of the Water Budget Protocol is to govern releases from the reservoirs of the
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`Swinging Bridge Project. Though the releases would, in turn, affect availability of flow to the
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`two downstream projects, the Project most affected by the Water Budget Protocol is the
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`Swinging Bridge Project. Accordingly, Commission Staff has removed the provisions of the
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`Water Budget Protocol that pertain to the Mongaup Falls and Rio Projects and proposed to
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`include those provisions in separate license articles applicable only to those projects.
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`The Licensees would prefer that the Commission adopt license articles—including Draft
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`Article 401—that align with the formulation as attached to the Offer of Settlement. In the event,
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`however, that the Commission adopts the approach of Commission Staff that do not modify
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`intent of the draft license articles appended to the Offer of Settlement, the Licensees urge the
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`Commission to revise Draft Article 401 to address the concerns outlined below so that it
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`accurately reflects the intent of the Offer of Settlement. These revisions are animated by the
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`Licensees’ concerns that certain revisions proposed by Commission Staff would modify
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`important provisions memorialized in the Offer of Settlement, likely inadvertently, in
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`consolidating multiple requirements from various proposed license articles into Draft Article
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`401.
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`
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`1.
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`Minimum Flows for the Swinging Bridge Project
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`In the consolidation of the disparate operational requirements from other proposed
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`license articles, Draft Article 401 for the Swinging Bridge Project alters the intentions with
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`respect to the minimum flow requirements for the three reservoirs that comprise the Swinging
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`Bridge Project. Initially, the Licensees and stakeholders memorialized the minimum flow
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`requirements at the Toronto Dam, Cliff Lake Dam, and Swinging Bridge Dam in proposed
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`license Article 40B. Proposed license Article 40B, in relevant part, stated as follows:
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`Within 90 days following license issuance, the Licensee shall
`operate the Swinging Bridge Project to provide a continuous
`minimum flow below the Toronto Development, Cliff Lake
`Development, and Swinging Bridge Development pursuant to the
`flows indicated in the table below, except that the minimum flows
`may be reduced in accordance with the Water Budget Protocol
`filed with the Commission on May 28, 2021 and approved
`pursuant to Article 40C.
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`Importantly, proposed license Article 40B included the qualifier that “the minimum flows may
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`be reduced in accordance with the Water Budget Protocol filed with the Commission on May
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`
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`28, 2021.”
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`The intent of this qualifier was to affirm the primacy of the Water Budget Protocol over
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`all flow management issues due to the fact that, under certain conditions identified in the Water
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`Budget Protocol, this minimum flow should be reduced. Specifically, Paragraph 3(c) of the
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`Water Budget Protocol specifies that the minimum flow budgets identified above could be
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`reduced during the summer season to as low as 10 cfs at Toronto and Cliff Lake or 60 cfs at
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`Swinging Bridge under certain conditions.
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`In incorporating the minimum flow requirements at the Toronto Dam, Cliff Lake Dam,
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`and Swinging Bridge Dam into Draft Article 401, Commission Staff omitted this important
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`qualifier and the intricacies of the Water Budget Protocol. Instead of indicating that the
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`minimum flows may be reduced pursuant to the Water Budget Protocol, Draft Article 401 states
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`that the minimum flow requirements must be maintained “[i]n addition to the Water Budget
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`Protocol.” Without this qualifier, the Licensees would be subject to inconsistent standards, and
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`Draft Article 401 negates the primacy of the Water Budget Protocol to determine minimum
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`flows for the summer season.
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`For those reasons, if the Commission adopts the approach outlined in the EA, the
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`Licensees ask that the Commission revise Draft Article 401 as shown below:
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`Except when otherwise modified pursuant toIn addition to the
`Water Budget Protocol, the licensee must operate the project to:
`(1) provide a minimum flow of 15 cubic feet per second (cfs) into
`Black Lake Creek immediately downstream of Toronto Dam; (2)
`provide a minimum flow of 15 cfs into Black Lake Creek
`immediately downstream of Cliff Lake Dam; (3) provide a
`minimum flow of 100 cfs in the Mongaup River immediately
`downstream of Swinging Bridge Dam; and (4) limit flow changes
`downstream of the Toronto Development to an up-ramping rate of
`no more than 200% per hour and a down-ramping rate of no more
`than 50% per hour.
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`This revision would affirm the primacy of the Water Budget Protocol in managing water flow
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`releases and not subject the Licensees to inconsistent requirements related to minimum flow
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`releases.
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`2.
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`Identification of Minimum Reservoir Elevations for the Swinging
`Bridge Project
`
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`Draft Article 401 would require the Licensees to revise the Water Budget Protocol to,
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`
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`among things, “include the normal minimum (11,070 feet National Geodetic Vertical Datum of
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`1929 (NGVD29)) and normal maximum (1,220 feet NGVD29) water surface elevations in the
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`reservoirs.” The Licensees note two concerns with this directive. First, the Swinging Bridge
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`Project is comprised of three reservoirs, each with separate normal maximum and minimum
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`elevations. The normal maximum and minimum elevations for each reservoir are shown in this
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`table from the Final License Application:
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`Thus, the Licensees believe that any directive to revise the Water Budget Protocol to specify the
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`elevation levels should identify levels separately for each reservoir. Second, the Licensees note
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`that the specific minimum elevation for Toronto Reservoir identified in Draft Article 401
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`appears to be a typographical error (in reporting 11,070 feet rather than 1,170 feet).
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`3.
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`Reporting of Reservoir Elevation Deviations for All Three Mongaup
`River Projects
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`The Licensees have concerns with respect to the deviation reporting requirements of
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`Draft Articles 401 for the three Projects. Draft Article 401 would impose obligations on the
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`Licensees in the event of certain deviations from a host of operational requirements including
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`“normal maximum and minimum water levels.”
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`First, related to minimum elevations, the provisions of Draft Article 401 for the
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`Swinging Bridge Project would impose a different minimum elevation than that to which the
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`Licensees committed to operate the Swinging Bridge Project in the Water Budget Protocol.
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`Importantly, the Water Budget Protocol identifies minimum surface elevations for certain
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`Swinging Bridge Project reservoirs during the non-summer months (from 15 days after Labor
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`Day through Memorial Day). These minimum surface elevations are included in Table A-2 of
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`the Water Budget Protocol and are intended to serve as limitations on Swinging Bridge Project
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`operations only for the non-summer months.7 These minimum surface elevations are higher than
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`the traditional “normal minimum water level” that the Commission would otherwise enforce as
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`an operational requirement, a concession the Licensees made in the course of settlement
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`discussions. The normal minimum elevations the Licensees identified in the Final License
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`Application are lower numbers that the Licensees determined are needed to ensure dependable
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`performance of Project equipment.
`
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`7 For the purposes of clarity: During the summer recreation season as defined by the Water Budget
`Protocol, the Licensees will implement the provisions of the Water Budget Protocol, but neither the
`proposed license articles included in the Offer of Settlement nor the Water Budget Protocol would
`establish definitive minimum elevations that would serve as operational limitations during the summer
`recreation season.
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`The Licensees believe, if the Commission adopts a license article resembling Draft
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`Article 401, the language of that article should precisely identify the minimum surface
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`elevations that are applicable to the Swinging Bridge Project reservoirs during the non-summer
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`months as those identified in Table A-2 of the Water Budget Protocol. One means to achieve
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`this objective is to revert back to the language of the proposed license article appended to the
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`Offer of Settlement, replacing “normal minimum and maximum water levels” with
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`“requirements regarding reservoir elevations,” as proposed in concurrently filed comments from
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`Homeowners on Toronto, Inc. and the Swinging Bridge Property Owners Association on the
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`EA.
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`
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`Second, related to maximum elevations, the Draft Article 401 deviation reporting
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`requirements for all three Mongaup River Projects would impose on the Licensees a reporting
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`obligation for any increase in reservoir elevations even if beyond the control of the Licensees,
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`such as high flow events. The Projects often experience flows that are beyond the hydraulic
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`capacity of the Projects. The Licensees indicated normal maximum elevations in the Final
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`License Application that reflect normal full pool but were not intended to restrict the ability to
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`exceed normal full pool to pass water over the spillway. The Licensees would urge the
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`Commission, if it were to adopt the Commission Staff’s formulation of Draft Articles 401 for
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`each Project license, to specify that the deviation reporting scheme would be required only for
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`deviations of the minimum elevation levels.
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`C.
`
`Status of Water Quality Certification
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`
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`In the EA, Commission Staff notes that the Licensees applied to New York State
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`Department of Environmental Conservation (“New York DEC”) for water quality certification
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`pursuant to section 401(a)(1) of the Clean Water Act. The EA mistakenly states that New York
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`DEC failed to act on the application within one year and concludes that New York DEC
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`accordingly waived its certification authority.
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`
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`The EA is mistaken on this point. On March 24, 2022, the Licensees did receive
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`notification by New York DEC of denial of the water quality certification due to incomplete
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`information and ongoing environmental review. The denial, which is attached, was issued
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`without prejudice to the Licensees resubmitting the request. The Licensees understood that a
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`component of the water quality certification request was a NEPA document issued by the
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`Commission and that a resubmittal would be entertained. The Licensees will be resubmitting
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`the request by November 30, 2022.
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`D.
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`Dwarf Wedgemussel Survey
`
`In Section 4.7 of the Offer of Settlement, the Licensees agreed to conduct a mussel
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`survey developed in consultation with U.S. Fish and Wildlife Service (“USFWS”) to determine
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`whether dwarf wedgemussel populations are present in the stretch of the Delaware River
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`between the confluence with the Mongaup River and Port Jervis, New York. Though the
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`Licensees committed to conduct the survey in 2021, river conditions for such a survey were not
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`favorable. Thus, after consultation with USFWS, New York DEC, and the National Park Service
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`(“NPS”), the Licensees performed the survey in 2022, received the report of survey findings on
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`November 7, 2022, and shared the report with USWFS, New York DEC, and NPS on November
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`8, 2022. For purposes of supplementing the record in this relicensing proceeding, the Licensees
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`are filing the report as a privileged document concurrent with these comments.
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`III. CONCLUSION
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`The EA appropriately recognizes the extensive commitments the Licensees have
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`agreed to implement during the new license terms for the Mongaup River Projects pursuant to
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`the Offer of Settlement. While the EA supports many of the licensing proposals advanced by
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`the Licensees and settling parties, there are a number of recommendations in the Commission
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`Staff alternative that diverge in significant ways from the Offer of Settlement. Moreover,
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`several Commission Staff modifications to the proposed license articles that accompanied the
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`Offer of Settlement inadvertently alter the requirements and the carefully crafted language of
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`the Offer of Settlement. The Licensees’ preference is that the Commission adopt the license
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`articles as proposed in the Offer of Settlement. In the event the Commission adopts license
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`articles in the form recommended by Commission Staff, the Licensees request that the
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`Commission (1) incorporate those provisions from the Offer of Settlement that Commission
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`Staff declined to adopt in the EA; (2) adopt the license articles consistent with the Licensees’
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`proposed changes to Commission Staff’s draft license articles contained herein; and (3) issue
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`a licensing order that is wholly consistent with the Offer of Settlement.
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`November 14, 2022
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`Respectfully submitted,
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`Joshua E. Adrian
`Joshua E. Adrian
`Thompson Coburn LLP
`1909 K Street, NW Suite 600
`Washington, DC 20006
`(202) 585-6922
`jadrian@thompsoncoburn.com
`
`Counsel for Eagle Creek Hydro Power, LLC;
`Eagle Creek Water Resources, LLC; and
`Eagle Creek Land Resources, LLC
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`Enclosures:
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`March 24, 2022 Water Quality Certificate Denial
`
`Dwarf Wedgemussel Survey (Privileged)
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`- 16 -
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`CERTIFICATE OF SERVICE
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`I hereby certify that I have this day caused the foregoing document to be served upon
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`each person designated on the official service list compiled by the Secretary in this proceeding.
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`Dated on this 14th day of November, 2022.
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`
`
`
`Joshua E. Adrian
`Joshua E. Adrian
`Thompson Coburn LLP
`1909 K Street, NW Suite 600
`Washington, DC 20006
`(202) 585-6922
`jadrian@thompsoncoburn.com
`
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`

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`
`March 24, 2022
`Water Quality Certificate
`Denial
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`March 24, 2022
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` 
`
`VIA ELECTRONIC MAIL
`
`Jody Smet
`Director, Licensing and Compliance
`Eagle Creek Renewable Energy
`Eagle Creek Hydro Power, LLC
`2 Bethesda Metro Center, Suite 1330
`Bethesda, MD 20814
`Jody.smet@eaglecreekre.com
`
`RE: Water Quality Certification- Notice of Denial
`Swinging Bridge Hydroelectric Project (DEC ID: 3-4830-00086/00003/
`FERC No. 10482)
`Mongaup Falls Hydroelectric Project (DEC ID: 3-4830-00026/00007/
`FERC No. 10481)
`Rio Hydroelectric Project (DEC ID: 3-4838-00026/00007/FERC No. 9690)
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`
`Dear Jody Smet:
`
`On March 29, 2021 the New York State Department of Environmental Conservation
`(NYSDEC or Department) received an application for a federal Clean Water Act (CWA)
`§ 401 Water Quality Certification (WQC) (WQC Application) on behalf of Eagle Creek
`Renewable Energy (Applicant), for the Swinging Bridge, Mongaup and Rio Hydroelectric
`Projects (FERC Nos. 10482, 10481, 9690) (Projects). The WQC Application for the
`Projects was submitted to the Department as part of the federal license renewal process
`before the Federal Energy Regulatory Commission (FERC). For the reasons explained
`in this letter, the Department hereby provides notice to the Applicant that the WQC
`Application for the Projects is denied due to incomplete information and an ongoing
`environmental review that may result in changes to the Projects. As required by Title 6
`of the New York Codes, Rules and Regulations (6 NYCRR) Section 621.10, a statement
`of the Departments basis for this denial is provided below.
`
`Back