`
`November 14, 2022
`
`Via E-Comment and First-Class Mail
`
`Kimberly D. Bose, Secretary
`Federal Energy Regulatory Commission
`888 First Street NE, Room 1A
`Washington, DC 20426
`
`Re:
`
`Environmental Assessment for Hydropower License
`Swinging Bridge Hydroelectric Project, P-10482-122; Mongaup Falls Hydroelectric Project, P-
`10481-069; Rio Hydroelectric Project, P-9690-115
`
`
`Dear Secretary Bose,
`
`I am writing in my capacity as Executive Director of the Delaware River Basin Commission (“DRBC”) to
`express DRBC’s support for the FERC staff analysis and recommendations contained in the Environmental
`Assessment for Hydropower License dated September 2022 (“EA”). In compliance with the National
`Environmental Policy Act (“NEPA”), FERC staff assessed the environmental impact associated with
`continued operation of the above-referenced Eagle Creek Hydro Power, LLC (“Eagle Creek”) Mongaup
`Reservoir System projects (the “Projects”) and with alternatives to the Projects. The EA meets FERC’s
`obligations under NEPA and the Federal Power Act (“FPA”), while properly rejecting license conditions
`proposed by others that would infringe on the authority of the DRBC pursuant to the Delaware River Basin
`Compact (“Compact”), Pub. L. No. 87-328, to manage the water resources of the Delaware River Basin
`(“Basin”).
`
`In its letter to FERC dated June 24, 2021, DRBC explained its authorities under the Compact and how
`certain terms of an Offer of Settlement dated May 28, 2021 (“Settlement Agreement”) would conflict with
`DRBC’s Comprehensive Plan, regulations, and approvals of Eagle Creek’s Projects. On August 27, 2021,
`DRBC submitted a supplemental letter to FERC further discussing DRBC’s authorities and offering
`suggested language for the renewed license. DRBC incorporates these letters herein and focuses in this
`letter on DRBC’s support of the EA.
`
`Water storage in and releases from the Projects are currently subject to both FERC and DRBC
`requirements. Pursuant to Sections 3.2(a) and 13.1 of the Compact, DRBC has adopted a Comprehensive
`Plan for the Basin which DRBC revises from time to time. An important component of the Comprehensive
`Plan is the Delaware River Basin Water Code, 18 C.F.R. Part 410 (“Water Code”). Among other things, the
`Water Code specifies the various uses of Basin waters to be protected. Although protected uses vary
`among DRBC water management zones, i.e., reaches of the Delaware River, they include, among others,
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`

`

`Kimberly D. Bose, Secretary
`Federal Energy Regulatory Commission
`November 14, 2022
`Page 2
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`water supplies, maintenance and propagation of aquatic life, wildlife, and recreation.1 Importantly, the
`Water Code provides for coordinated operation of Basin reservoirs during drought operations to prioritize
`the allocation of available water supply for human life, health and safety. DRBC’s need to coordinate
`reservoir releases throughout the Basin without undue restriction is particularly acute during dry weather
`conditions when DRBC’s drought operations governed by the Water Code are in effect. See also, Compact
`§§ 3.3 and 10.4 (authorizing DRBC to control reservoir releases during a DRBC-declared drought
`emergency or water supply emergency).
`
`When determining whether and under what conditions to issue a hydropower license, FERC considers,
`among other things, whether the project will be best adapted to a comprehensive plan for developing a
`waterway. 16 U.S.C. § 803(a)(1); EA at 3. The FPA thus makes DRBC’s Comprehensive Plan for the Basin,
`including the Water Code, directly relevant to FERC’s licensing decision for the Projects. See EA, Appendix
`J (listing the Delaware River Basin Compact among other comprehensive plans considered by FERC).2 In
`addition, as noted in the DRBC’s June 24, 2021 and August 27, 2021 letters to FERC, Section 15.1(s) of the
`Compact provides an additional basis for FERC to avoid imposing license conditions that conflict with
`DRBC’s Comprehensive Plan. Section 15.1(s) restricts federal agencies from taking actions with regard to
`water and related land resources in the Basin that substantially conflict with DRBC’s Comprehensive Plan.
`
`Fortunately, the goals of the FPA and of the Compact are generally compatible. DRBC recognizes the
`importance of hydropower production among other uses of Basin waters, and FERC recognizes certain
`non-hydropower uses. DRBC has historically exercised its authorities where practicable to avoid imposing
`duties on its project sponsors that would conflict with requirements of FERC licenses. Under its existing
`FERC license, Eagle Creek has been able to prepare and implement operating plans that comply both with
`the terms of its license and with DRBC requirements.
`
`
`1 For example, the following are the protected uses set forth at Section 3.20.2 of the Water Code for Zone 1A, which
`consists of that part of the Delaware River extending from the confluence of the East and West Branches of the
`Delaware River at Hancock, New York, R.M. (River Mile) 330.7, to the Route 652 Bridge at Narrowsburg, New York,
`R.M. 289.9 (a river reach that includes Callicoon):
`Water Uses to be Protected (Resolution No. 67-7). The quality of Zone 1A waters shall be maintained in a safe and
`satisfactory condition for the following uses:
`1. a. public water supplies after reasonable treatment,
`b. industrial water supplies after reasonable treatment,
`c. agricultural water supplies;
`2. a. maintenance and propagation of resident game fish and other aquatic life,
`b. maintenance and propagation of trout,
`c. spawning and nursery habitat for anadromous fish,
`d. wildlife;
`3. a. recreation.
`2 Note that as described above, the DRBC’s Comprehensive Plan is adopted and from time to time revised pursuant
`to the Compact. See Compact §§ 3.2(a), 13.1. The Compact is not itself the Comprehensive Plan.
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`

`

`Kimberly D. Bose, Secretary
`Federal Energy Regulatory Commission
`November 14, 2022
`Page 3
`
`When exercising its authority under Section 3.8 of the Compact to review projects having a substantial
`effect on the water resources of the Basin, DRBC imposes conditions on the project to avoid impairment
`of DRBC’s Comprehensive Plan. In its dockets approving the Projects, DRBC required Eagle Creek to submit
`operating plans for DRBC review and approval. See DRBC Dockets D-2001-038-CP-3 and D-2011-020-CP-1
`issued to Eagle Creek for the Projects (collectively, the “Dockets”). The DRBC-approved drought conditions
`operating plan requires Eagle Creek to comply with DRBC drought operation requirements that include
`provisions of the Water Code. Eagle Creek’s DRBC-approved normal conditions operating plan ensures
`that Eagle Creek will maintain sufficient water in its Project reservoirs to, among other things, provide
`minimum downstream flows.
`
`On May 28, 2021, various parties to the FERC proceedings, not including DRBC, Pennsylvania Department
`of Environmental Protection, or New York City, submitted the Settlement Agreement to FERC. The
`Settlement Agreement did not recognize the authority of DRBC, and it included proposed license terms in
`Sections 3.7 and 3.8 that would in effect require Eagle Creek to manage releases from the Projects in a
`manner that conflicts with the Water Code.
`
` Section 3.7.1 would also require Eagle Creek to increase releases when necessary to control temperature
`variations at Port Jervis to protect dwarf wedgemussel populations purportedly located there, regardless
`of minimum reservoir elevations DRBC requires Eagle Creek to maintain.3
`
`In the EA, FERC staff correctly recognized the conflicts the Settlement Agreement would create, stating:
`“[A]s the DRBC and [New York] City contend, the proposed flow target would conflict with the 1954 Decree
`and the Delaware River Basin Compact.” EA, App. H at 6-7. As the EA further explains: “DRBC, under the
`Delaware River Basin Compact, has broad authority to manage water resources in the basin and directs
`flow releases from the City’s reservoirs and other reservoirs during a declared drought emergency.” EA
`at 51. “During drought conditions, Eagle Creek coordinates with the DRBC to operate the projects
`consistent with the Drought Conditions Operating Plan, with a goal of refilling the reservoirs by June 1 the
`following year.” EA at 12. Eagle Creek also “implements the Mongaup River Hydroelectric System Normal
`Conditions Operating Plan [approved by DRBC] which identifies minimum water levels at the projects’
`reservoirs and minimum flow releases downstream of the projects’ dams. During periods of low flow,
`Eagle Creek coordinates with New York DEC and the DRBC to determine when and to what extent
`reductions in minimum flows are warranted at the projects based on inflows and water storage at the
`Swinging Bridge Project.” EA at 40.
`
`FERC staff concluded that in addition to conflicting with DRBC authorities, the license conditions proposed
`in Sections 3.7.1 and 3.8.1 of the Settlement Agreement would not necessarily result in increased flows
`
`
`3 FERC staff concluded that these temperature controls are unnecessary and may be counterproductive. EA, App. E
`at 8-9. DRBC’s June 24, 2021 letter to FERC noted the need for the parties to the Settlement Agreement to disclose
`the results of recent locational surveys and a scientific explanation of the temperature conditions necessary for the
`protection and/or recovery of dwarf wedgemussels to guide modeling efforts. Eagle Creek provided a summary of
`its survey results in a call hosted by FERC staff on November 8, 2022. Otherwise, this information has yet to be shared
`with DRBC.
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`

`

`Kimberly D. Bose, Secretary
`Federal Energy Regulatory Commission
`November 14, 2022
`Page 4
`
`to support recreational boating and the dwarf wedgemussel. As FERC staff recognized, releases from the
`Projects enter the Mongaup River, from which they flow into the Delaware River. The Settlement
`Agreement posits that reducing releases from the Projects would indirectly increase flows upstream of
`the confluence of the Mongaup River and the Delaware River because the Delaware River Master will
`purportedly order increased releases from the two New York City Delaware River Basin reservoirs located
`in the tributaries of the Delaware River above Callicoon. But as FERC staff recognizes, discretion in
`directing releases from one or more of New York City’s three Delaware Basin reservoirs is exercised by a
`third party not subject to FERC license conditions.
`
`To be effective in increasing flows upstream of the confluence of the Mongaup River and Delaware River,
`the license conditions would need to obligate New York City, the Delaware River Master, the decree
`parties, and the Delaware River Basin Commission to increase releases or allow releases to be increased
`from Cannonsville and Pepacton Reservoirs. But FERC has no power to require actions by these entities.
`Under the FPA, FERC has jurisdiction only over its licensee, Eagle Creek, and not any third party.
`
`As a result, FERC staff properly concluded that FERC has no jurisdiction to manage flows upstream of the
`confluence of the Mongaup River and the Delaware: “[FERC] cannot impose a flow target in the Delaware
`River because [FERC] lacks jurisdiction over the City’s reservoirs as well as flows in the Delaware River at
`Callicoon. In addition, there is no connection between operation of the Rio Project and flows in the
`Delaware River at Callicoon because the project does not affect flows in the Delaware River upstream of
`the confluence with the Mongaup River and flows at Callicoon can only be managed through actions of
`the River Master or DRBC.” EA, App. H at 6-7. See also, EA at 54 (noting the absence of a “nexus between
`the Rio Project and flow in the Delaware River upstream of the confluence with the Mongaup River,”
`emphasizing that the River Master exercises judgement in directing flow releases, and concluding that
`FERC “does not have jurisdiction over the City’s reservoirs and cannot enforce license conditions that
`conflict with the authority of the River Master or the DRBC”). Because the license conditions proposed in
`the Settlement Agreement are based on speculative actions of third parties who are not subject to FERC’s
`authority, FERC has no jurisdiction to impose these conditions.
`
`Likewise, pursuant to Section 3.3 of the Compact, DRBC with the consent of the parties to the U.S.
`Supreme Court Decree, including New York City, has in the Water Code modified the 1954 Supreme Court
`Decree during drought operations by decreasing releases from the New York City reservoirs when the
`Settlement Agreement attempts to increase these releases. DRBC with the consent of the Decree parties
`may in the future further modify this release schedule.
`
`It is DRBC’s understanding that to address the potential conflict between the terms of the Settlement
`Agreement and the DRBC’s authorities, the parties to the Settlement Agreement have recently agreed
`upon an addendum (“2022 Addendum”) with license provisions that preserve DRBC’s authority. The 2022
`Addendum states that the provisions of the Settlement Agreement will not supersede Eagle Creek’s
`obligation to satisfy present or future DRBC requirements during drought operations or emergencies. It
`further preserves DRBC’s authorities under the Dockets and DRBC-approved drought conditions operating
`plan and normal conditions operating plan. In addition, if the measures included in the Settlement
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`

`

`Kimberly D. Bose, Secretary
`Federal Energy Regulatory Commission
`November 14, 2022
`Page 5
`
`Agreement are likely to increase the number of days of drought operations, the 2022 Addendum provides
`that DRBC may direct the Licensee in consultation with the other parties to request FERC to revise the
`License to reduce or eliminate this effect.
`
`DRBC fully supports the staff recommendations in the EA and requests FERC to adopt them in the license
`renewal for the Projects. If adopted by FERC, these staff recommendations would resolve DRBC’s
`objections to the Settlement Agreement. To the extent FERC imposes any license conditions that may be
`construed to restrict DRBC’s authority by mandating or precluding releases from the Projects, DRBC
`requests FERC to include in the license the relevant provisions of the 2022 Addendum that would resolve
`the conflicts raised by DRBC and by FERC staff in the EA.
`
`The DRBC has a long and successful history of working with many others to adaptively manage the Basin’s
`complex, limited, and often competing, flow management needs to benefit aquatic ecosystems and all
`water users. The DRBC staff is willing to work with its federal representative to continue to coordinate
`these issues outside of this Project’s license renewal to meet shared water management goals for the
`Basin as addressed in the Delaware River Basin Compact. Thank you for your consideration of DRBC’s
`comments.
`
`Sincerely,
`
`
`
`Steven J. Tambini
`Executive Director
`
`c: DRBC Commissioners
`
`