`
`
`November 4, 2022
`
`Kimberly D. Bose, Secretary
`Federal Energy Regulatory Commission
`888 First Street, N.E.
`Washington, D.C. 20426
`
`Subject:
`
`
`
`Response to Comments on the Supplement to the Lower Kennebec
`Species Protection Plan and Draft Biological Assessment for the Lockwood
`(FERC No. 2574), Hydro Kennebec (FERC No. 2611), and Weston (FERC No.
`2325) Projects and the Interim Species Protection Plan and Draft Biological
`Assessment and Final License Application for the Shawmut Project (FERC
`No. 2322)
`
`
`Dear Secretary Bose,
`
`The Merimil Limited Partnership, Hydro-Kennebec LLC, and Brookfield White Pine Hydro
`(collectively, the Licensees) herein submit responses to comments received on the September
`21, 2022 Supplement to the Species Protection Plan and Interim Species Protection Plan for
`Atlantic Salmon, Atlantic Sturgeon, and Shortnose Sturgeon (Supplement). This Supplement
`outlines a revised suite of fish passage measures consistent with (a) the May 31, 2021 Lower
`Kennebec Species Protection Plan (SPP) and Draft Biological Assessment (BA) for the
`Lockwood (FERC No. 2574), Hydro Kennebec (FERC No. 2611), and Weston (FERC No. 2325)
`Projects and (b) the May 31, 2021 Interim Species Protection Plan (ISPP) and Draft BA and
`Final License Application for the Shawmut Project (FERC No. 2322).
`
`On October 5, 2022, the Federal Energy Regulatory Commission (FERC or Commission) issued
`a Notice of Supplemental Information Filing and Soliciting Comments (Notice). The Notice
`indicated that comments on the Supplement were due to FERC on October 25, 2022 with reply
`comments due 10 days later, on November 4, 2022. The Kennebec Coalition (“KC”) and
`Conservation Law Foundation (“CLF”) filed comments on October 24, 2022. The Licensees
`herein provide responses to the KC/CLF comments. . As explained more fully herein, the
`comments submitted by KC and CLF were in many respects misleading, inaccurate, and
`inflammatory, and in all respects fail to provide a basis for altering the Licensees’ proposed
`Supplement.
`
`KC/CLF Comment: The NGO’s primarily repeat and reassert their predominant position,
`emphasized throughout the proceedings on these dockets, that the Final Plans before this
`Commission are fatally deficient in avoiding the subject projects’ cumulative “destruction and
`adverse modification of habitat” and cumulative “jeopardy to the continued existence” and
`recovery of an ESA listed species (GOM-DPS of Atlantic salmon)…
`
`The projects cumulatively block and impede the up- and downstream migrations of a suite of
`diadromous fish species, of which the listed species (GOMDPS of Atlantic salmon) are one, to
`critical spawning and rearing habitat above the fourth project (Weston) in the 4-project gauntlet.
`
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`Collectively and cumulatively, including the projects’ impoundments, the projects destroy and
`degrade the critical habitat of this main stem migratory corridor…
`
`Finally, and just as significantly, the Final Plan will not avoid habitat destruction and adverse
`modification, and will perpetuate the significant adverse impacts of the dams and impoundments
`on the other co-evolved diadromous species, which are constituent elements of the listed critical
`habitat for Atlantic salmon. Failing to provide meaningful restoration of these species is a
`significant degradation of critical habitat. Brookfield’s Supplemental Filing does nothing to
`change these overarching conclusions that the Final Plan is deficient and will fail...
`
`The Final Plan before this Commission – even when supplemented by Brookfield’s
`Supplemental Filing – will continue to result in destruction and adverse modification of critical
`habitat, and simply will not avoid jeopardy to the survival and recovery of the listed species; nor
`will it remedy adverse environmental impacts to the river and river restoration efforts which
`include the co-evolved diadromous species upon which the ecosystem (and salmon recovery
`itself) depends.
`
`
`Licensee Response: The National Marine Fisheries Service (NMFS) is charged under
`the Endangered Species Act with determining whether proposed actions would
`jeopardize the survival and recovery of a listed species and/or result in the destruction
`and adverse modification of critical habitat. As discussed extensively in the Supplement,
`with every piece of new information regarding project effects and every new issue raised
`by NMFS throughout the multiple rounds of informal Section 7 consultation pursuant to
`the December 31, 2019 SPP and BA, the May 31, 2021 SPP and BA and the most
`recent September 21, 2022 Supplement, the Licensees have acknowledged, analyzed
`and otherwise addressed project effects. The Licensees believe the complete set of
`proposals pending before the Commission to be robust and are targeted to avoid,
`minimize, and mitigate project effects. The determination of whether the Licensees’
`proposals are sufficient to support the survival and recovery of the listed species is
`NMFS’ to make.
`
`KC/CLF Comment: By the applicant’s own admission, revealed in more detail by analysis
`below, even if the Final Plan works – against all known odds and science – the projects will
`continue to “take” unacceptable numbers of the listed species each year. The combined impacts
`of these four projects on downstream migrating smolts will take more than 10% of each
`generation of smolts before they reach the estuary and (after several years at sea) the same
`four projects will prevent an additional more than 10% of the returning adults of the same cohort
`from returning to spawning habitat – a combined “take” of more than one fifth of each generation
`of Kennebec River Atlantic salmon. This also does not even consider (as emphasized, again,
`further below, drawing from all the NGO comments on this record), the significant additional
`latent and sublethal impacts that smolts experience as a result of passing through turbines and
`impoundments and that adult salmon experience from lengthy delays in upstream passage and
`injuries during downstream passage. Both experiences lead to substantial decreases in the
`ability to spawn successfully and delays in upstream passage lead to decreased kelt survival
`post-spawning.
`
`
`Licensee Response: KC/CLF’s calculations are in error. Simply adding the upstream
`and the downstream “take” does not result in the cumulative take for a given generation.
`
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`First, not all outmigrating smolt will pass all four dams. Once all proposals are in place,
`and habitat improvements to tributary streams in the intervening reaches between the
`Projects have been completed, not all returning adults will spawn in the Sandy River. In
`addition, recovery efforts with various juvenile life stages occur throughout the lower
`Kennebec River basin, such as the stocking of smolts below Lockwood Dam.
`
`Second, the performance standards are a minimum threshold for passage survival and
`success. The robust suite of improvements to upstream and downstream passage
`outlined in the Supplement could result in even higher survival and passage success
`than the proposed cumulative standards of 84.9% upstream (96% per Project target/site
`specific standard) and 88.5% downstream (97% per Project target/site specific
`standard).
`
`Third, outmigrating smolts and post-spawned kelt must return to the ocean to mature
`before returning to freshwater to spawn and complete their lifecycles. NMFS estimates
`marine survival to be 0.5% (median) and states that “Low abundances of both hatchery-
`origin and naturally reared adult salmon returns to Maine demonstrate continued poor
`marine survival.”1 As a result, the Projects are not affecting “more than 10%” of each
`generation of returning adults, but rather are affecting a small percentage of the 0.5% of
`the returning adults of a given generation. With a proposed cumulative performance
`standard of 88.5%, the Projects would affect 0.06% of the total returning Kennebec River
`origin adults of a given generation.
`
`Finally, the proposed performance standards similar to those established at the
`Penobscot River, which by all accounts has a successful Atlantic salmon restoration
`program. The Penobscot River has an approximately 85% upstream and 89%
`downstream cumulative passage performance when taking the three lower Penobscot
`Projects’ site specific performance standards into account.
`
`KC/CLF Comment: Footnote 4…In addition, the salmon ledges-stranding event at the
`Lockwood project in June of 2021 – when flashboard repair/replacement operations resulted in
`severe trapping, injury, harm, and risked death, of at least 3 adult salmon and nearly two dozen
`smolts – exceeded the then-expired incidental take authorization of the expired interim
`Biological Opinions. FERC Accession No. 20210701-5242 (Attachment 1, Maine Department of
`Marine Resources (Jennifer Noll). June 17, 2021. Field Summary of Atlantic Salmon Stranding
`Rescue at Lockwood Dam.).
`
`
`Licensee Response: KC/CLF mischaracterizes both the June 2021 flashboard
`replacement as well the potential for any associated injury, harm or mortality. Flashboard
`repair and installation is a routine maintenance event that has been undertaken at the
`Project for decades and is critical not only for normal project operations, but also for the
`installation of the upstream eel passage facility as well as for reducing the magnitude
`and duration of spill flows into the bypass reach which have been documented to
`
`
`1 December 28, 2021 Endangered Species Act Biological Opinion for the Brunswick Project (FERC No.
`2284)
`
`150 Main Street
`
`Lewiston, ME 04240
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`
`Tell: 207.755.5600
`Fax: 207.755.5655
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`contribute to false attraction and delay of upstream migrating diadromous species
`including Atlantic salmon.
`
`On March 4, 2005, FERC issued a new license for the Lockwood Project. Article 407 of
`the new license required the Licensee to develop, in consultation with the resource
`agencies, and file, for FERC approval, a Fish Rescue Plan, which codified the measures
`the Licensee historically undertook to collect and relocate any fish that may be stranded
`in the scour pool below the dam during flashboard replacement activities. The Fish
`Rescue Plan has been periodically reviewed and updated in consultation with the
`agencies and is part of the Project’s Fish Passage Operation and Maintenance Plan, the
`most recent iteration of which was filed with the resource agencies for review and
`comment on March 4, 2020.
`
`As stated above, flashboard replacement is conducted annually, pursuant to the agency
`approved Fish Rescue Plan, consistent with the terms and conditions of the 2013
`ISPP/BO, regardless of the expiration of the take statement, and undertaken in full
`consultation with all resource agencies, who are invited to attend, supervise, and assist
`with the collection and relocation efforts. The Maine Department of Marine Resources
`(MDMR) has staff who are trained fish handling experts and hold Section 10 collection
`permits for the express purpose of handling endangered Atlantic salmon.
`
`Following the flashboard replacement and fish stranding surveys, which occurred on
`June 15, 2021, MDMR distributed the referenced “Field Summary of Atlantic Salmon
`Stranding Rescue at Lockwood Dam,” which documented the relocation of one adult
`Atlantic salmon and the presence of two additional adult Atlantic salmon, as well as
`approximately two dozen fish identified as potentially being, but not otherwise confirmed
`as, Atlantic salmon smolt. For the adult Atlantic salmon that was relocated, MDMR
`documented several injuries. However, it is not clear from MDMR’s report how these
`injuries were incurred (other than a lamprey scar). There is no evidence to suggest
`injury (or even delay) was a project induced effect. Being downstream of Lockwood
`Dam, it is not clear whether this fish ever encountered any of the project structures,
`including the fish lift. It is also not clear how long the fish had been in the bypass reach,
`so a determination of an effect of delay would be speculative, at best. For the two adult
`Atlantic salmon that were unable to be relocated, the same points hold true. While these
`salmon were not netted and trucked to upstream spawning habitats, it is possible that
`they were post-spawned adults who had successfully outmigrated from the Sandy River
`or had not yet passed but for which delay would be indeterminate. Refreshing and
`egress flows were provided to that pool continuously following the replacement of the
`flashboards and no adult mortalities were subsequently observed. For the “smolt”
`documented by MDMR, either these smolt successfully migrated downstream from the
`Sandy River and were en route to the estuary or were among the hatchery smolt stocked
`by MDMR into the lower Kennebec River downstream of the Lockwood Project, 10
`weeks earlier. In either case, there is no evidence of project induced injury, mortality or
`delay.
`
`
`KC/CLF Comment: As we have emphasized throughout these proceedings, a plan for multiple
`fish passage facility installation over four projects, on the Kennebec – or on any river – is
`doomed to fail. It has no scientific support. Nor does it have any experiential support with the
`
`150 Main Street
`
`Lewiston, ME 04240
`
`www.brookfieldrenewable.com
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`Tell: 207.755.5600
`Fax: 207.755.5655
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`

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`agency experts at the National Marine Fisheries Service (“NMFS”) on any United States salmon
`river, or on any river in the world, nor with this Commission’s experience with the very licensee
`here. The multi-dam passage rubric has failed already on these subject projects for the entire
`period of time since the KHDG Agreement was approved by this Commission to govern these
`projects in 1998…
`
`We urge the consultation agency, NMFS, and this Commission as the action agency under the
`ESA (and separately as the agency responsible for NEPA compliance, as well as project
`licensing compliance with Federal Power Act environmental impact standards), to reject the
`rubric of “one fish passage facility per project, in a multi-project passage system.” That rubric
`does not sufficiently remove the impediments, and continues to degrade the river ecosystem for
`diadromous fish – blocking and degrading in proven ways, supported now by the best scientific
`data available. While there may not have been, earlier than the past decade, the volume of
`known evidence foretelling the certain failure of this rubric, there clearly is today with its failure
`on the Connecticut River and the Merrimack River, where salmon restoration efforts have been
`ended. And we now have more evidence of certain failure, including studies conducted on the
`Penobscot and Kennebec Rivers here in Maine. The experts in this field, both within NOAA
`Fisheries and in other areas of the public and the private sector, have reached a scientific
`consensus on this issue. This Final Plan will not achieve the performance it wishes for (wishes
`without support and against all experience), and so will doom the Kennebec River to the same
`fate of multiple-dam restoration efforts, most notably here on the Connecticut and the Merrimack
`Rivers.
`
`
`Licensee Response: The KC/CLF incredibly claim that the plan for fish passage
`improvements at the four lower Kennebec River Projects does not have “experiential
`support with the agency experts at the National Marine Fisheries Service” and that
`scientific consensus on the failure of the “multi-dam passage rubric” has been reached
`by NMFS. To reach this baseless conclusion, the KC/CLF rely on an “opinion editorial”
`that was submitted by letter to NMFS, and which NMFS never itself addressed.
`
`The KC/CLF also cannot support the claim that passage over four dams is doomed to
`fail, and erroneously point to the Merrimack and the Connecticut River programs as
`evidence that such failure will occur. But review of authoritative sources concerning
`these programs show that other factors drove the decision to abandon targeted efforts to
`restore salmon populations to those rivers. According to the New Hampshire Fish and
`Game Department (NHGFD)2:
`
`
`In addition to stocking, providing fish passage was an important strategy for
`Atlantic salmon restoration. Fish ladders and fish lifts built on the dams of the
`Connecticut River made historical spawning habitat accessible to salmon in the
`Connecticut River. Radio tagged salmon released at the Holyoke Dam in
`Massachusetts were located as far north as the Ammonoosuc River in New
`Hampshire. Fishways have been constructed at the first three dams on the
`Merrimack River, up to the Hooksett Dam, but access to suitable spawning
`
`2 https://www.wildlife.state.nh.us/fishing/profiles/atlantic-
`salmon.html#:~:text=An%20attempt%20to%20restore%20Atlantic,program%20was%20ended%20in%20
`1896.
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`150 Main Street
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`habitat was not available until the Merrimack Village Dam was removed at the
`mouth of the Souhegan River in 2008…Salmon populations throughout North
`America are in decline, despite the closing of an ocean fishery off the western
`coast of Greenland, where Atlantic salmon congregate before migrating back to
`their home rivers. Poor survival in the ocean has been the main obstacle to
`salmon restoration efforts throughout the region. Determining the potential cause,
`or causes, of ocean mortality is a major focus of current research… Connecticut
`River Atlantic salmon restoration in New Hampshire effectively ended in 2011,
`after Hurricane Irene destroyed the White River National Fish Hatchery where
`the majority of Atlantic salmon were held for the Connecticut River Salmon
`Program. The U.S. Fish and Wildlife Service ended its participation in the
`Merrimack River Salmon Restoration Program in 2013 due to budget concerns
`and shifting priorities. (emphasis added)
`
`
`Although the Atlantic salmon restoration program on the Merrimack River has been
`discontinued, NMFS, in coordination with the US Fish and Wildlife Service (USFWS),
`Massachusetts Division of Fish and Wildlife (MADFW), Massachusetts Division of
`Marine Fisheries (MADMR), and NHFG, worked collaboratively on the Merrimack River
`Watershed Comprehensive Plan for Diadromous Fish, which was approved by FERC as
`a comprehensive plan for the states of Massachusetts and New Hampshire and includes
`operation of existing fishways and construction of new fishways at five mainstem dams
`as a fundamental component of the plan. The Penobscot River system itself, for which a
`multi-agency targeted Atlantic salmon restoration program has been implemented for
`over a decade, also has multiple watershed dams.
`
`KC/CLF Comment: Even the one-project passage facility at the Milford Project (P-2534) on the
`Penobscot River has dramatically failed to perform upstream passage at required expectations
`for timing – delay in safe passage is substantial. The failures at Milford inform the anticipated
`failures at each project in issue on the Kennebec…
`
`Footnote 8 - See FERC Accession No. 20220328-5301, the 2021 Annual Report for Atlantic
`Salmon Species Protection Plan [for projects including Milford, P-2534] at seventh page
`(conceding Milford passage performance failures require consultation on the Milford BiOp and
`the existing incidental take coverage for the Milford Project under the ESA “to consider
`previously unforeseen effects to listed species”). We contend that the adverse effects at Milford
`were not “unforeseen” but rather appreciably anticipated based on the scientific data proving
`dams’ primary threat to the recovery of fish species and their irremediable, deleterious impact to
`the river environment. When the failures at Milford alone are multiplied over a 4- project system
`on the Kennebec, the actual passage performance of the Final Plan here (with this
`Supplemental Filing) will be woefully inadequate to avoid jeopardy to the survival and recovery
`to the listed species and will not adequately mitigate destruction and adverse modification to
`critical habitat.
`
`
`Licensee Response: KC/CLF have predetermined the outcome of the proposed fish
`passages on the Kennebec River, and for that matter any fish passage in the world,
`based on the results of a single fish lift and its associated negotiated timing standard that
`has been subsequently revisited and rewritten by NMFS in contemporary Biological
`Opinions issued [after the referenced lower Penobscot Biological Opinion which includes
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`the Milford Project. Specifically, the standard KC/CLF refer to for the Milford Project
`requires nearly 100% of all upstream migrating adult salmon to pass the Milford fish lift
`within 48 hours. However, recently issued Biological Opinions for the Mattaceunk (2020)
`and Ellsworth (2020) Projects have altered the timing standard such that up to a quarter
`of fish can pass later than 48 hours and included contingencies upon factors such as
`water temperatures.
`
`In addition, the current strategy of stocking smolts downstream of Milford Dam is likely
`contributing to delay in passage timing at the dam and is a practice currently employed
`on the Kennebec River, as well, where smolt are stocked downriver of Lockwood. Adult
`Atlantic salmon have a strong fidelity to home to their natal river section, which for
`hatchery smolts released on the Penobscot River would be the mainstem river
`downstream of Milford (i.e., their stocking location). Thus, the majority of the salmon
`returning to the Penobscot River are not imprinted to upstream river reaches and lack
`important homing cues (Peterson 2021) which impacts their motivation to move
`upstream3.
`
`
`KC/CLF Comment: Footnote 9 - We note NMFS’s Comments on the FERC staff Draft EA (this
`Commission has correctly abandoned the Draft EA in favor of a cumulative Environmental
`Impact Statement for compliance with the National Environmental Policy Act of 1969 (“NEPA”),
`42 U.S.C. § 4321 et seq.). NMFS’s Comments were placed on the record for these four
`Kennebec projects, see FERC Accession No. 20210816-5122 at p. 10:
`
`However, staff’s analysis treats the Brookfield hydro dams as if they are immutable
`features of the river, rather than temporary features that comprise one of the primary
`threats to the recovery of a critically endangered species. . . . In other words, the
`presence of the dams leads to an estuarine mortality rate that is almost four times higher
`than what we would expect if there weren’t any dams in the river. . . . This highly
`significant direct and cumulative effect is glossed over in staff’s analysis, and is not
`addressed in any of the discussions regarding performance standards. The analysis in
`the final [NEPA environmental document] should be modified to adequately incorporate
`the best available information about estuarine survival and the effects of dam passage.
`
`Id. (bold emphasis added). “The ‘best available information about estuarine survival and the
`effects of dam passage’ on the Commission’s record, is that the projects’ operations under the
`Final Plan here, with the Supplemental Filing, will continue to result in an unacceptable
`“estuarine mortality rate” and will continue to prevent the recovery of a critically endangered
`species.”
`
`
`Licensee Response: As discussed in Section 1.3.4 of the Supplement, the Licensees
`and NMFS reviewed the existing “best available information” regarding hydrosystem
`delayed mortality as derived from a model based on studies conducted on the
`Penobscot River referenced by the KC/CLF. For reasons discussed in the May 31, 2021
`SPP and the September 21, 2022 Supplement, the Penobscot River model “likely
`overestimates hydrosystem delayed mortality” and NMFS and the Licensees concluded
`
`3 Peterson, E. 2022. The long-term impact of dam removals on Penobscot River migratory fishes. Thesis,
`University of Maine, Orono, USA.
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`that a Kennebec River specific study is appropriate.
`
`As discussed in the Supplement, NMFS filed a letter on February 19, 2021 indicating
`that any new SPP and BA filed for the lower Kennebec River Projects would need to
`address, among other topics, “measures to evaluate and/or reduce the impact of
`hydrosystem delayed mortality”. As outlined in the May 31, 2021 SPP and reiterated in
`the Supplement, the Licensees have committed to conducting a study investigating the
`potential impact of dam passage injury on latent mortality (study plan to be developed
`with agencies). This study will characterize baseline hydrosystem delayed mortality and
`identify potential issues including migratory delay, sub-lethal injury and disorientation
`that may result from dam passage and contribute to hydrosystem delayed mortality.
`
`
`KC/CLF Comment: i. Brookfield’s hopes for 97% upstream and downstream passage
`performance for salmon are unsupported, but nonetheless result in unacceptably low cumulative
`whole station survival. Notwithstanding our sets of previous comments that raise substantial
`concerns about Brookfield’s proposal for passage percentages, as well as the extensive
`comments from the Maine Department of Marine Resources on this issue, we would point out
`that even if the Commission and NMFS accept Brookfield’s analysis as presented, Brookfield’s
`own assessment is that their proposed measures, would result in 97% downstream passage
`success for smolts at each of their four dams. It is critical to understand that Brookfield is not
`committing to 97% fish passage success for smolts, but to 97% at each of four dams, and
`thereby achieving a whole station survival cumulative standard of 88.5%. As outlined in our
`previous comments, we do not accept Brookfield’s analysis suggesting this standard is
`achievable. But even if accepted uncritically, the Commission and NMFS must take note that
`Brookfield is asking for acceptance of a plan by which Brookfield’s four projects will kill 11.5% of
`each generation of out-migrating endangered Atlantic salmon smolts.
`
`Similarly, 97% upstream passage success at each dam, again compounded over four projects,
`would result in the same impacts on upstream migrating adult spawners – Brookfield’s four
`dams will kill 11.5% of each generation of adult salmon, including (and with higher impacts on)
`the ecologically more significant repeat-spawner segment of the population, returning from the
`Gulf of Maine to the Sandy River.
`
`The impacts of the dams on upstream and downstream salmon migration would therefore result
`in losses of 23% of each generation of salmon that migrates to and from the Sandy River over
`Brookfield’s four dams. Again, we do not believe that Brookfield can achieve even this highly
`problematic rate of passage success for either upstream and downstream passage (no one has
`ever done so), especially when the impacts of inevitable complications from river flows, water
`temperatures, mechanical issues, and human error are accounted for. And the effects of
`delayed injury and mortality are not factored into the unachievable whole station survival rates,
`nor are increased impacts on repeat spawners. But even if Brookfield were to achieve its fish
`passage goals, the projects would still kill nearly a quarter of each generation of migrating
`salmon. That level of project-related mortality precludes salmon recovery…
`
`The Shawmut Project will be the third project in a 4-project gauntlet of an impounded river.
`Upstream passage performance of 97% for salmon is impossible to achieve; and Brookfield’s
`submission continues to ignore the upstream passage of the other co-evolved species, such as
`American shad and the river herring species, in both the current Final Plan and in its
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`Tell: 207.755.5600
`Fax: 207.755.5655
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`Supplemental Filing. But again, even if the illusory 97% wish were to be achieved at Shawmut –
`an assumption that is hard to indulge in the first place – the upstream passage will still be a part
`of a cumulative unrealistic performance that nonetheless allows 11.5% of the adult surviving
`vestiges of a listed species to be “taken” each year. When added to the 11.5% allowed “take”
`during downstream migration, even Brookfield’s wildest unsupported dreams still ask for nearly
`a quarter of the listed population in the river to be taken from each generation of Sandy River-
`reared salmon before they return to spawn. Brookfield’s plans for multi-project single passage
`facilities do not meet the goals of salmon restoration, let alone overall river restoration.
`
`
`Licensee Response: The Licensees are proposing a cumulative upstream performance
`standard of 84.9%, which equates to a per Project target of 96% for the Lockwood,
`Hydro-Kennebec, and Weston Projects and a site-specific performance standard of 96%
`for the Shawmut Project. A 97% target/site-specific performance standard is proposed
`for downstream passage.
`
`The Licensees provide a response to the KC/CLF’s expressed concerns with the
`performance standards above as well as the math purportedly showing a 23% loss per
`generation above.
`
`As discussed above, the performance standards represent the highest in the country.
`By comparison, the Penobscot River assets have an upstream performance standard of
`95% and a downstream performance standard of 96% per Project. On the Columbia
`River basin in Washington, Oregon and Idaho, the Columbia River Power System
`Biological Opinion covers 14 dams and 13 species of Columbia River Basin salmon and
`has performance standards for upstream and downstream passage at each project of
`93% to 96%.
`
`
`KC/CLF Comments: There is a reason why NMFS recommended to this Commission that the
`Shawmut Project not be relicensed, and should be decommissioned. Presumably, that
`recommendation and its underlying reasoning will be included in this Commission’s
`comprehensive Environmental Impact Statement, and remains a critical consideration at this
`juncture of the Commission’s consultation with NMFS under the ESA. It bears repeating.
`
`Footnote 13 - FERC Accession No. 20200828-5176 at second page of cover letter of Michael
`Pentony, Regional Administrator (NMFS) to Kimberly Bose, Secretary (FERC) (“However, under
`section 10(a), we [NMFS] may recommend decommissioning and dam removal as our preferred
`alternative in this proceeding, and we do so for the reasons outlined in the attachment.”) (italics
`emphasis added) and at pp. 16-18 of attachment thereto. Those same reasons for the
`recommendation, among others, are extant in the present section 7 formal consultation under
`the ESA. One of the several express reasons set forth by NMFS was that “[d]am removal would
`contribute to mitigation of cumulative effects (e.g., delay, passage inefficiencies, downstream
`mortality, and increased predation) of multiple barriers in the watershed; whereas, modification
`of the [Shawmut] Project through the addition of fish passage would maintain these negative
`effects to some degree with a compromised bypass reach flow” and that “[f]ish passage
`measures do not fully mitigate hydroelectric project effects.” Id. at Attachment p. 17 (italics
`emphasis added). Further, NMFS noted that: “Dams inundate lotic habitat that alters ecosystem
`structure and function (Poff at all, 1997). The Shawmut dam impounds approximately 1,310
`acres of lotic habitat that under a natural condition would be higher gradient river habitat that is
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`more suitable for salmonids and other diadromous species.” Id. at 18. Hence, the
`impoundments of all four projects are classic examples of “destruction or adverse modification”
`of critical habitat under the ESA, 16 U.S.C. § 1536(a)(2), which fish passage measures do not
`adequately mitigate.
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`Footnote 34 - We also re-emphasize NMFS’s assertions to this Commission: “Given that you
`[FERC] now intend to analyze the systemic ecological impacts of the Brookfie