Low Impact Hydropower Institute
34 Providence Street
Portland, ME 04103
Tel. (207) 773-8190  Fax (206) 984-3086
www.lowimpacthydro.org
MEMORANDUM
To:
LIHI Governing Board
From: Fred Ayer
Date: April 17, 2007
Subject: West Branch St. Regis Hydroelectric Project Suspended Certification
This memo contains background information on the West Branch St. Regis Project my
recommendation and a record of contacts.
Background: You probably recall the unfortunate situation with Brookfield’s West
Branch of the St. Regis Project. On September 8, 2005, the LIHI Board voted to certify
the West Branch of the St. Regis Hydro Project as Low Impact and almost immediately
received word that there had been a minimum flow compliance violation. Acting quickly
the Board later the same week, suspended the certification vote that had been taken on
September 8th. On September 9, 2005 I spoke with the applicant and the resource
agencies. Brookfield Power (applicant) moved into action quickly, establishing what had
caused the violations, how they proposed to prevent it from happening again, and what
would be appropriate mitigation for the compliance violation. Working closely with state
federal resource agencies they fashioned a settlement agreement with the agencies and
filed for FERC approval. FERC approved the agreement (attached) on May 2, 2006.
In early February 2007, I heard from Brookfield’s Project Manager Tom Skutnik, who
requested that we revisit the application which had been suspended shortly after the
Board had approved the project. From February through April 2007, I have checked in
with the agency and NGO parties to get their confirmation that the statement in FERC’s
letter that “The restitution measures and proposed enhancements agreed to with the
NYSDEC should be adequate to replace any trout that may have been lost due to low
minimum flows.”
As the contact summaries confirm, Brookfield has met with the other parties and they
have resolved this issue to FERC’s satisfaction. The purpose of these follow-up contacts
is to make sure that the resolution was satisfactory for the other parties. As you will see
from the contact information the resolution is satisfactory. However, one of the
concerned parties, New York Rivers United, requested that we reinforce language in the
original settlement agreement related to a land transfer and the compliance settlement
agreement associated with the minimum flow violation regarding monitoring.
Based on the information I have reviewed and the discussions with people involved in the
settlement agreement process, I recommend the Board remove the suspension, which
effectively certifies the West Branch St. Regis Project as Low Impact. My sense is that
since we suspended the certification on a 9-14-05 vote, that if reinstated, the project’s
current Low Impact Certification would expire on 9-14-10.
For additional background I have attached a memo to the Board from October 2005 as
Appendix A
RECORD OF CONTACTS
Date of Conversation:
LIHI Staff Reviewer:
Person Contacted:
Telephone:
email:
February 20, 2007 and April 11, 2007
Fred Ayer
Tom Skutnik, Brookfield Project Mgr.
(315) 413-2789
Thomas.Skutnik@brookfieldpower.com
In a phone conversation with Tom, he brought me up to date with the resolution of the
low flow issues that occurred during late summer 2005. As you may recall Brookfield
met with the resource agencies and NY Rivers United and came to an agreement that was
filed with FERC. FERC issued a three page letter describing and approving the
settlement. I asked Tom to send me a copy of the FERC correspondence which he did the
same day. I told him I would update the Board and make follow-up calls to the parties to
confirm that they were satisfied with the resolution. I also told Tom, since this was the
only outstanding issue, I was going to request that the LIHI Board deliberate and vote
electronically to reinstate the certification for the project.
I spoke with Tom a second time in April to explain the delay in processing due to the
inability of Bruce Carpenter and I to connect. I also discussed Bruce’s request for
reinforcing conditions regarding land transfer and the term of monitoring.
***
Date of Conversation:
LIHI Staff Reviewer:
Person Contacted:
Telephone:
April 17, 2007
Fred Ayer
Steve Patch, Project Biologist, USFWS Cortland
Field Office
(607) 753-9334
Steve, confirmed that the applicant and the parties had come to agreement on the
minimum flow issue and as far as he knew everything was fine and the applicant was
meeting its minimum flow requirements. He was also aware that the applicant had made
satisfactory arrangements with TU regarding compensatory stocking of fish.
***
Date of Conversation:
LIHI Staff Reviewer:
Person Contacted:
Telephone:
February 23, and April 10, 2007
Fred Ayer
Bruce Carpenter, NY Rivers United
(315) 413-2790
I spoke briefly with Bruce and he was pretty sure that the resolution was satisfactory, but
needed to check with Brookfield about a related issue associated with the minimum flow
violation. He planned on calling back late Friday, but did not. I will follow-up with
Bruce next week. It wasn’t until April 10th that Bruce and I reconnected and he wanted
to make sure that we reinforce language in the original settlement agreement related to a
land transfer and the settlement agreement associated with the minimum flow violation
regarding monitoring.
***
Date of Conversation:
Application Reviewer:
Person Contacted:
Telephone/email:
Areas of Expertise:
April 12, 2007
Fred Ayer
Alice Richardson, DEC Region 6 Hydro Coordinator
315-785-2267
License and Settlement Agreement, flows, recreation and
access
Alice talked about the St. Regis flow issue and the resolution of the issue. She was
comfortable where things were but said that there was still a field observation that has not
taken place yet, because the applicant is doing required penstock repairs and it is difficult
to get the flow low enough to test the new flow monitoring devices. She believes that the
applicant will schedule the field tests once they can control flow. She also suggested that
I contact Frank Flack (315-785-2258) at the NYDEC, who is in the fisheries area. She
transferred me to Frank and we had a discussion about the project and he was
comfortable that the issue had been resolved, but also wanted to reinforce that the field
test had not been completed, but he was quite sure the problem had been solved. He
suggested I talk with William Wellman, TU, who is TU’s rep in the project area. I called
Mr. Wellman and he asked me to send him a copy of the FERC letter. I did and he in
turn redistributed it to TU members with a stake in the process and resolution of the
minimum flow violation. The sense was that the fishery staff at the state and TU
supported certifying the project. The TU folks seemed excited about the stocking of the
trout. I only received one email response from a TU member which was in support of
certification. Mr. Wellman’s note to the other TU members said:
“I've attached correspondence from Fred Ayer with the Low Head Hydropower Institute
in Portland, Maine. He is ready to certify the Allen's Falls project of Brookfield on the
West Branch of the St. Regis as compliant with their standards if we agree, and agree that
the previous settlement of issues is appropriate.
Brascan, now Brookfield has complied with the monetary reimbursement and paid us to
stock rainbows in the West Branch twice last year, and we are all prepared to do the same
this year. As to the other measures, I was present with John Homa, a Brookfield
consultant, last year when the temp loggers were checked. As Brookfield has complied
with the settlement and taken appropriate remedial measures, I have no objection to
approval. If you don't agree, let me know. If you do, don't bother, and the copy of this
message to Fred will serve as his approval.”
***
Appendix A
October 6, 2005 Memo to LIHI Board from Fred Ayer
Low Impact Hydropower Institute
34 Providence Street
Portland, ME 04103
Tel. (207) 773-8190  Fax (206) 984-3086
www.lowimpacthydro.org
MEMORANDUM
To:
LIHI Governing Board
From: Fred Ayer
Date: October 6, 2005
Subject: Follow-up to minimum flow issue by LIHI Staff West Branch St. Regis
Hydroelectric Project Certification
This memo is the record of contacts I’ve made since our last Board call regarding
Brascan’s West Branch St. Regis Certificate Application. As you will see, Brascan and
the other parties will be meeting on this issue soon and once I have information on how
they have resolved this issue I will send you my recommendations on the certification
application.
RECORD OF CONTACTS
Date of Conversation:
LIHI Staff Reviewer:
Person Contacted:
Telephone:
email:
September 9, 2005
Fred Ayer
Tom Skutnik, Brascan Project Mgr.
(315) 413-2789
Thomas.Skutnik@brascanpower.com
In a phone conversation with Tom, I told him about the information regarding minimum
flows that had come to the LIHI Governing Board’s attention yesterday. Tom seemed a
bit surprised that there was a problem, but when I asked him if he was aware of minimum
flow violations, he asked me how we had “found out” ---I told him information had been
made available to the Board that there had been occurrences of flow releases not meeting
the required minimum. He said they did have a violation, it was accidental and a gate
had been set at the wrong opening and they had honestly thought they were passing what
was required. I asked him if they had reported the violation to FERC. He said they had
not but they were working closely with the FWS and DEC. I asked him if he was
working with Steve Patch of the USFWS, he said yes. I told him I thought that the LIHI
Board would suspend action on the West Branch St. Regis application and my sense was
that we would need to do some research which could take a few weeks to complete. I
told him I would keep him up to date.
***
Date of Conversation:
LIHI Staff Reviewer:
Person Contacted:
Telephone:
September 9, 2005
Fred Ayer
Steve Patch, Project Biologist, USFWS Cortland
Field Office
(607) 753-9334
In a conversation with Steve, he explained what he knew to be happening. He said that
they first got complaints in May and they continued through June and July. In August,
working with the agencies, Brascan brought their own consultant out to measure by-pass
flows and he determined that where they were supposed to be passing 50cfs, they were
only passing 13 cfs—the fixed gate openings were set wrong. Steve has spoken with
Sam Hirschey and they will be meeting within the month to resolve affects of low flow.
I asked Steve if there had been fish kills and he said they had gotten angler complaints,
but had no evidence that there were fish kills. Steve seemed to think that there had been
an unintentional screw up. He pointed out that the same day in August Steve had visited
Brascan’s Raquette River Project which is a lot more complex than St. Regis projects and
he said all of the by-pass flows (more than the St. Regis Project) looked good---he didn’t
think that there was any malice behind Brascan’s actions on the St. Regis, just a mistake.
My sense is that because of the low flows there may have been fish that had been stocked
that were lost. It wouldn’t surprise me if the DEC and FWS will want mitigation for lost
fish, so Brascan might end up resolving this through committing to stocking fish and
monitoring results.
Date of Conversation:
LIHI Staff Reviewer:
Person Contacted:
Telephone:
email:
***
September 14, 2005
Fred Ayer
Sam Hirschey, Brascan Project Mgr.
(315) 413-2790
Samuel.Hirschey@brascanpower.com
I received a phone message from Sam late in the day. He assured me that he was aware
of the flow situation. He sounded pretty frustrated because he doesn’t know how it
happened. He said that Brascan will be meeting with the state, USFWS, TU, and NYRU
and is quite confident that Brascan will be able to provide satisfactory mitigation for
possible damage to resources.
I will try to call Sam tomorrow to follow-up.
***
Date of Conversation:
LIHI Staff Reviewer:
Person Contacted:
Telephone:
email:
September 15, 2005
Fred Ayer
Sam Hirschey, Brascan Project Mgr.
(315) 413-2790
Samuel.Hirschey@brascanpower.com
Sam called this morning and we had a chance to talk in more detail. He confirmed that
he is in conversations with all the parties and that they (DEC, USFWS, TU and NYRU)
have scheduled a meeting for later this month. Sam said that he felt the state and the
USFWS has suggested they want mitigation in the form of stocking fish to replace
possible losses to fish stocked by the state and TU. Sam also confirmed that Brascan had
not spoken with FERC and was waiting to talk with FERC after the meeting with the
parties and I believe his strategy is to alert FERC to the compliance violation and the
proposed mitigation package with the other parties. Because Brascan has not spoken
with FERC yet, Sam is eager to resolve the issue sooner than later. He committed to
keeping me posted.
***
Date of Conversation:
Application Reviewer:
Person Contacted:
Telephone/email:
Areas of Expertise:
September 19, 2005
Fred Ayer
Alice Richardson, DEC Region 6 Hydro Coordinator
315-785-2267
License and Settlement Agreement, flows, recreation and
access
Alice returned my earlier calls and shared her thoughts about the St. Regis flow issue.
She did not feel that there was anything malice about Brascan’s flow violation and she
was hopeful that Brascan would accept their responsibilities regarding mitigation for the
low flow incidents. Alice wondered why the violation wasn’t more obvious to the
operators---there is quite a significant difference between 50 cfs (what they should have
been passing) and 13 cfs (what they were actually passing. Alice said that she would call
or send a note after the state and federal agencies and NGOs had met with Brascan.
***