Inside a FERC Licensing Process: The Federal Energy Regulatory Commission and the State of the Connecticut River in Massachusetts
Copyright © 2019 by Karl Meyer All rights reserved.
The Connecticut River below Turners Falls Dam. Photo Copyright © 2019 by Karl Meyer All rights reserved. (NOTE: Click, then click twice more to enlarge.)
“River conditions miserable; relicensing progress, negligible. No end in sight.”
Note: the following is a long-form letter to Dr. John Waldman, CUNY Queens College professor of biology. John dropped a friendly note inquiring as to the state of affairs on the Connecticut River. I replied I would like get back to him in some detail, with a view toward publishing those extended thoughts. Besides his teaching, John is an award-winning author of several books. He has been a long-time advocate for the restoration of the Hudson River and its environs. We met some years back when I took him on a tour of the Connecticut River reaches I write about here. John was in the process of completing, RUNNING SILVER: Restoring Atlantic Rivers and Their Great Fish Migrations, published by Lyons Press (2013). He is an avid angler and a fierce defender of rivers.
Greenfield MA 01301 July 31, 2019
John Waldman, Professor of Biology
Queens College, CUNY
Queens, NY 11367
You asked me sometime back how things were going on the “mighty Connecticut?” Sorry it’s taken a while to get back to you.
As you know, the real news—as it were, is all bound up in the Federal Energy Regulatory Commission’s 5-year relicensing process for Northfield Mountain Pumped Storage Project, P-2485, and Turners Falls/Cabot Hydro Project, P-1889. That ponderous process for these tandemly-operated, peaking electric facilities, began way back in August of 2012. All the while some 10 miles of the Connecticut have been essentially strangled and broken here since 1972, when the Northfield Mountain Pumped Storage Station came on-line in concert with the now-shuttered Vermont Yankee Nuclear Plant, just upstream in Vermont. Overall, NMPS’s massive pump-and-purge water appetite impacts flows and habitat across 50 river miles in three New England states.
VY closed permanently in 2014. Instead of being pulled from daily service at that time and kept on as a reserve emergency power source for summer and winter grid-stress days, NMPS somehow has been allowed to soldier-on by importing giant surges of electricity from distant power sources, battering an ecosystem with deadly, pumped storage suction and creating artificial tides here daily, some 70 miles above the nearest reach of Long Island Sound tidal impacts at Hartford.
Of course NMPS has never produced, and will never produce, a single watt of its own virgin power. This is not renewable energy, and Northfield is not “hydro” power, as people think. It is recycled nuclear, natural gas, oil, coal, etc., power taken directly off the grid to do the unseemly work of suctioning a river backward. Pumped storage is the only category that shows up on regional power grids as turning in a negative percentage of power production. It’s a river-killing technology–a bulk power relay switch ferrying the climate-heating juice of a disastrously warming planet.
If I were to put into the fewest possible words how things are going on the mighty Connecticut it would read something like: “River conditions miserable; relicensing progress, negligible. No end in sight.”
It all seems to work in favor of the corporation—which, if you try and look beneath all the legal paperwork permutations still is ultimately parent-owned by Canada–the country, to the detriment of a four-state US river and ecosystem, and dozens of communities in Massachusetts, Vermont and New Hampshire. The biological losers, besides the citizenry, include—among others, the federally-endangered shortnose sturgeon, and federal trust species including American shad and blueback herring.
Further below you’ll find part of the asset transfer paperwork entered into this FERC relicensing record on Wednesday, July 17th, via the company’s Washington law firm, a limited legal partnership. They’ve essentially split these intimately-integrated components—Northfield Mountain Pumped Storage and Turners Falls power canal/Cabot Station, into a handful of separate limited liability companies, all now registered as corporations in the state of Delaware.
As you know, these peaking/re-peaking projects have proven major stumbling blocks to river connectivity and real anadromous/diadromous fish restoration above Holyoke Dam into wide open Vermont and New Hampshire habitats. There has long-existed fifty-miles of essentially empty and infinitely-restorable river spawning and rearing habitat for shad, lamprey, bluebacks, etc., in those New England states.
But the Connecticut is sucked into reverse for up to a mile downstream via NMPS’s monstrous water appetite. Chewing through 15,000 cubic feet per second of CT River flow for hours when pumping, it extirpates virtually all the river life it inhales—fish, eels, eggs, etc. And, in grim concert, the riverbed below Turners Falls Dam is left all but an empty bedrock relic many months out of the year—as the flow from Northfield is re-peaked into their three-mile long power canal below that dam.
Today as I write, there are three miles of exposed rocky riverbed baking in the sun in 93F degree heat. The company is actually required to only dribble 125 cubic feet per second of water into this Dead Reach from a point just below the dam. The rest is corralled for Northfield’s huge appetite and for shunting into that canal. Thus, the Connecticut River itself is essentially broken at this point. And, no nourishing, connecting flow to make it a viable river and waterway will be required again until NEXT April, at the earliest. It just sits—baking, starved of water.
During this spring’s migration season just over 7% of the 315,000 shad that passed Holyoke Dam were tallied passing Turners Falls. Those numbers do not even approach the passage numbers achieved here mid-1980s. That’s absurd.
Plus, during peak shortnose sturgeon spawning season operators inside Northfield Mountain pinched off spawning flows at the key site known as Rock Dam during a period when investigations by USGS fish biologists had demonstrated that 4 dozen of members of that federally-endangered species were present. The ancient pool at the Rock Dam site is their only documented natural spawning site in the entire river ecosystem.
This occurred during a time when the power company was conducting their own test flows to potentially move tagged American shad upstream through that water-starved Dead Reach which includes Rock Dam. I witnessed and documented the flow cuts one morning, and another federal fisheries biologist witnessed the same brutal draw-down two days later.
An email confirmed those grim impacts on those spawning sturgeon were caused by the operators 7 miles upstream inside the Northfield Mountain Mountain Pumped Storage Station, who control the Turners Falls Dam. The company has long been fully apprized during this federal relicensing process that shortnose sturgeon spawn here from mid-April past the third week of May, yet they pinched the flows shut and egg-sheltering banks were dewatered. That’s deadly. It’s what’s known as a taking under the Endangered Species Act.
Days later, a commercial rafting company was documented making repeat runs over that single, tiny rapid at the Rock Dam, while repeatedly entering onto sensitive wetland habitats on the island adjacent in rerunning those very brief joy rides.
As you know, a single instance of interference with a federally-endangered shortnose sturgeon is subject to a fine of $49,000 and possible jail time. If this was an individual citizen destroying spawning habitat and crippling reproduction–rather than a “corporate” citizen, I’m sure they would’ve ended up in court, fined, and answering to the law. I think if there was a worthy watchdog on the Connecticut, the company would have been sued, and a judgment sought. If the judgement of a taking of say 20 endangered shortnose sturgeon was rendered, at $49k per fish, we are talking serious river protection money! Here? Nada. Due diligence? Any diligence??
Alas, we really have no enforcing non-profit watchdog here on the Connecticut like you have with Riverkeeper and its battery of lawyers on the Hudson. There’s no enforcement or taking the corporations to court here on our 4-state Connecticut. That’s certainly why conditions are so miserable, despite the presence of long-settled law, the ESA and CWA statutes. No NGO teeth.
Our resident NGO did change its name a year or so back, but not its mission and mandate. And what’s always been needed here is that promise to prosecute corporations and take government agencies to court when they fail to enforce environmental mandates and do their jobs. The one we have submits lots of “comments.”
OK, they also hold a big river clean-up—offering high PR visibility for questionable corporate sponsors who have a legacy of nuclear waste left in their wake here, and they do some water quality testing. They also plant trees with grant money, and pull aquatic weeds. But, since producing several guides for boaters on the Connecticut, some of their key constituencies are the promoters of recreational and commercial paddle sports here—kayakers, rafters, canoeists.
They are pushing to get these interests portage and river access to the long-abused, critical habitats immediately below Turners Falls Dam. I have stated publicly any number of times that in a just world this tiny reach would be designated a National Freshwater Marine Sanctuary, so critical is it to this ecosystem—upstream and down.
Given the fragile biological, historical and cultural nature of those three river-miles—recreational and commercial watercraft pursuits are the absolute last pursuits that should be allowed there. But, guess what? That little NGO just entered their for-the-record “comments” into this FERC relicensing for their vision of new recreation access in that fragile reach—where over a dozen state- and federally- listed species are struggling for survival. It reads more like a marketing and development plan: new parking spaces, a trail cut onto an island for repeat runs over the tiny Rock Dam and habitat of endangered sturgeon and what may be the last place in the reach where state-endangered yellow lampmussels were documented.
I really have no idea whether they have ever looked up the definition of conservancy.
They want three or four new accesses designed for this tiny reach, as well as a road cut for emergency vehicles and a ramp-slide for watercraft. Makes you wonder who is donating to them. This is a mostly-forgotten, fragile biological gem, adjacent to a tiny backwater neighborhood of old factory double-decker homes—and you can just see it being turned into something commercialized and soulless…
It’s a damned good thing they have no actual conditioning authority in this relicensing. I think USFWS, National Marine Fisheries, MA Natural Heritage, MA Historical Commission, and several federal- and state recognized Native American tribes will be looking at this with some shock. At the very least, that NGO’s director should step down as vice chair and MA public-sector representative on the Connecticut River Atlantic Salmon Commission. It’s been two years now, but it’s more like a sycophant position for the NGO–since they get channeled grant monies through the fed and state agencies that they should be watch-dogging over. So, it’s like a cheerleading slot. Before that, the MA public sector slot on CRASC sat empty for seven years, but at least it was a do-no-harm arrangement.
They really need to look up the definition of conservancy.
Unfortunately John, that’s the state of affairs in this critical section of the Connecticut, tottering on the brink between resurrection and conservation protections, and their vision of the river as an attraction for tide of tourist-joyriders with little regard for place, or species, or the intrinsic right for a river to just live and heal; as a life giving entity in its own right. It’s merely a fun-time commodity. Sad, that we have no legal team or NGO operating under the watchdog/enforcement mode here. Lacking that bedrock necessity, a Connecticut River with monitored–and enforced, protections and life-giving flows in the future seems a highly unlikely prospect, no matter what gets written into a new license.
Unless, another organization steps into the breach–bringing consistent enforcement and a willingness to drag crimes against this ecosystem into the courtroom every time they occur. We need an every-day enforcement presence like you have on the Hudson.
Howsoever, I will say that the US Fish & Wildlife Service’s goal for Turners Falls Dam in these proceedings–after gathering research from long-range studies and examining decades of passage data, is: 75% of all the fish that pass Holyoke will be required to pass TF safely. After four decades of failed fish passage here, they appear solid on that goal being met through this relicensing. That passage, upstream and down, is required via the 1872 landmark Supreme Court decision in Holyoke Company vs. Lyman, as you know—decided exactly a century before NMPS began swallowing the Connecticut River and all manner of its migratory and resident fish. Its full impacts have never been calculated nor compensated–to even the smallest measure.
There’s one other ember of good news here: for the second year in a row a SINGLE blueback herring passed Turners Falls Dam. They hadn’t been seen here in most of a decade, though thousands used to pass back in the 1980s. It’s a federal trust species with its back against the wall. Good to see even the tiniest biological thread holding on.
The other test the power company is currently conducting–of its own volition vis-à-vis this relicensing: little swaths of mesh net have been placed in front of the massive sucking mouth of Northfield Mountain—purportedly to prevent that gaping maw from feasting on millions of tiny, young-of-year shad each spring, as well as adult American eels on their way downstream. Early YOY study results from fish agencies hinting that the reach at Northfield is the least productive of this river’s dammed sections. Wonder why??
The absolute brilliance of this “trial”, is they are going to project how effective a 1,000-plus foot net across the intake might be for decades into the future—by staking out several test panels that are about the size of high school flags in front of that giant pipe, during various sucking flows. I’m sure that’s gonna prove an effective snapshot of how a ponderous mega-net might perform for decades to come! Ludington Pumped Storage and lake trout should be the cautionary tale…
Of course, as the Federal Energy Regulatory Commission let’s this bloated process go on, ad infinitum, we may all be dead before Vermont and New Hampshire get their long-deserved shad runs, and those shortnose sturgeon–which you assisted as a reviewer in their Federal Recovery Plan, receive flows that guarantee they actually can spawn and are able to begin the slow slog toward viable species-status.
Ok, just to give you a flavor of what rights and privileges a ten dollar (yes $10.00) tax shelter sale in this key reach in a 4-state ecosystem that is part-and-parcel of the Silvio O. Conte Connecticut River National Fish & Wildlife Refuge can offer, please see the included clauses below. THEY ARE HEART-BREAKING in the midst of a 5-year FERC relicensing process that is now set to begin its 8th year, if my math is correct. We began meeting in August 2012.
And, John, the company and its consultants do not seem in any hurry to bring this process to a close. The last negotiation with conditioning federal and state fisheries agencies took place in mid-winter. Basically, the parties all stated their positions; then walked away with no further meetings scheduled. This was, of course, after they made their surprise December 20, 2018 filing to break the company up into little, Delaware-registered, llc tax silos… Some ten agencies and stakeholder interests have filed protests with FERC and been granted Intervener status, myself included.
Here is an excerpt from that conveyance document:
“In consideration of the covenants and agreements contained herein and the payment of $10.00 and other good and valuable consideration, the receipt of which is hereby acknowledged by the Grantor, the Grantor and the Grantee hereby agree as follows:
The Grantor hereby grants, bargains, sells, and conveys to the Grantee, and its
successors and assigns, with Quitclaim Covenants, a perpetual nonexclusive right and easement for the purposes set forth below in, on, over, under, across and through the Property identified on Exhibit “A” attached hereto.
The rights and easements conferred hereby shall include, but not be limited to, the right, at any time and from time to time and without payment of damages or further consideration to:
1. Alter the level of the Connecticut River and of its tributaries to any extent by
withdrawing water from said River and returning the same water in whole or in part by
the use of structures now or hereafter forming part of the Northfield Mountain Pumped
Storage Project, FERC No. 2485;
2. Retard, accelerate, reverse, or divert the flow of said river and of said tributaries,thereby causing an increase or decrease in the percolation, seepage, or flowage of waterupon, over, and under or from the Premises described and identified in Exhibit A notwithstanding that by such percolation, seepage, or flowage damage may be caused directly or indirectly to the said Premises or to any one of them or to structures, personal property or trees or vegetation thereon;
3. To erect and maintain upon the Premises so subject suitable gauges to measure and
record the flow and level of the said river and said tributaries;
4. To enter upon said Premises for the aforesaid purposes and for the purpose of removing any trees or other vegetation which may be injured or destroyed by the flowage
5. As an incident of the foregoing, cause an increase or decrease in the flowage of water orice upon, over, or from said Premises, notwithstanding that portions thereof subject tothe aforesaid rights and easements may be washed away or added to by the action ofwater or ice and that damage may be caused thereto and to structures or vegetation thereon or adjacent thereto by flowage, seepage, percolation, erosion, accretion,interference with drainage, or otherwise.”
Northfield Mountain Pumped Storage remains today the same ecosystem killer it was when it came on line in 1972. Absent in any of these proceedings has been its grim impacts on resident fish species across 4-1/2 decades. It is both an engine and enabler of climate change, as it sucks in 34% more natural gas- and nuclear-produced juice from the grid than it ever sends back as 2nd hand, peak-priced electricity.
FYI: the weakest partner with conditioning authority in all these years has been MA Division of Fish & Wildlife—the sole agency that has had authority to reopen the current license across all these decades concerning failed fish passage. They sat on their hands, mum, while anadromous fish passage nearly disappeared above Turners Falls Dam in the first decade of this century—dropping at times to 1% or less. It all adds up to what a massive taking has occurred here in Massachusetts across the decades via the operations of Northfield Mountain and Turners Falls. Vermont and New Hampshire have been hereby impoverished as well During these relicensing hearings MA Fish & Wildlife has shown little in the way of leadership. It’s an embarrassment for this Commonwealth.
I will, however, recognize that the MA Natural Heritage people and the Dept. of Environmental Protection have shown up and been active partners in environmental safeguarding during these proceedings.
Otherwise, the federal fish and environmental agencies—the people I sit with on the Fish and Aquatics Study Team, have ultimately shown great expertise and resolve in enforcing US statutory law and long-standing environmental mandates respecting a new license. I think the US Fish & Wildlife Service and the National Marine Fisheries Service recognize their responsibilities to get it right this time—and to protect this four-state New England River for the citizens of the United States as the heart of the US Silvio O. Conte Connecticut River Fish & Wildlife Refuge. They are proving forthright and honest brokers on behalf of the citizens they work for.
As you may know, I am the only recognized stakeholder/intervener in these proceedings who has not signed one of those grim non-disclosure agreements with the company. I have thus become a conduit for nearly all the relicensing information reaching the public on several platforms in this largely unseen process.
But as I write this I begin to wonder: since these intimately intertwined projects have now become a series of new LLC outfits–are all those agencies and towns still bound by non-disclosure agreements they signed years ago with a different company? The company’s behavior in that regard has been so snake-like that it hardly seems relevant or appropriate to hold back information from the public about their river at this time. It’s been like an in-your-face demonstration of the rootlessness and stark profit motives of the new “corporate citizenship.”
And, nowhere have I heard any hint that these newly-configured, on-paper companies are interested in coming to settlement terms any time soon.
With those actions driving the parties apart, why not just move it in front of FERC rather than watching and waiting for these venture capitalists’ next power move? Every year these proceedings drag on the Connecticut River ecosystem continues to fray and fracture along these miserable miles of broken river basin. And every year the company continues to profit from FERC’s extension of the current license. In the interim they’ve participated in helping change operational parameters for pumped storage payments and participation in ISO markets. The power companies sculpt the laws that FERC imposes.
And, of course, every year they do not have to put a shovel in the ground to construct mandatory fish passage is more money in the bank for them and their venture capital investors. The bulk power grid, FERC and ISO New England are some of the key engines of our climate crisis. Only distributed generation and micro-grid reorganization—stopping us from blithely consuming the glut of imported power that fuels our massive over-consumption, will offer us a way out of this emergency. Those new, localized power configurations would also guarantee routes around the looming threat of massive cyber attacks on this behemoth of a power grid.
Something called NEPOOL, a consortium of New England corporate power producers, really wags the dog that is ISO New England. And FERC generally rubber stamps their positions. And, FERC won’t even consider ruling on any given projects’ climate impacts or GHG emission contributions to an overheating planet. Not once. Seems they’ve never met a power project they didn’t embrace.
Hell, both NEPOOL and ISO ban the media outright from their meetings. They do not provide or disclose critical information needed for the public to understand and trust the decisions made about the grid, power production, energy sources, distribution and its import in the current climate crisis. It’s all backroom stuff. One of this company’s own executives testified in Washington hearings in support of continuing to ban the media from these critical, precedent-setting, energy meetings. As stakeholders we are denied data and information on what this power company pays for the glut of grid power it imports while it sells an ecosystem down the river, offering it back in deadened, second-hand, peak-priced juice.
There is speculation from folks I know who design and install solar projects and metering that this company may not actually be paying ANYTHING at times when the power grid is so bloated with excess juice at certain times and seasons. Bulk power producers pay to have it taken off their hands in what’s called “negative pricing”. How much money are they making? How much of a free ride is this boondoggle getting? Just a year and a half back the Federal Energy Regulatory Commission’s current chair Neil Chatterjee and now-disgraced former EPA chief Scott Pruitt made an all-but-secret visit to Northfield Mountain. No media; no witnesses. What does that tell you?
But then it’s always been pretty much at free ride at Northfield, having never paid for nearly a half century of unmeasured annual fisheries carnage. That’s been a taking on a massive scale: federal-trust migratory—and, resident fish, both.
The public really has no idea that this contraption can really only regenerate a few HOURS of dense, second hand juice, after which it is literally and completely dead in the water—and has to start hoovering-up endless juice from the grid once more, while sucking all manner of aquatic life through its deadly turbines. Its profits–and purchase price mechanisms are all shielded from the public in this FERC/ISO/NEPOOL process. It’s is an abomination of democracy.
Reregulating the energy market here presents the only open path to realigning our energy production, distribution and use with societal needs in the face of a climate crisis reaching a critical precipice. However, our governor here seems quite happy to farm-out our climate responsibilities and import-in massive amounts of what are termed green megawatts. Huge build-outs going on in Boston and elsewhere–casinos, luxury high-rise condos, giant, energy- sucking marijuana grow-houses. It’s all sleight of hand. Robbing Peter to pay Paul.
Rivers are the cooling arteries of this planet, and the Connecticut is the heart of an ecosystem stretching from the Quebec border to the estuary at Long Island Sound.
History will remember the inaction and misrepresentation of these corporate rogues and complicit bureaucrats in our time of climate crisis. Seems obvious that none of them have granddaughters or grandsons they worry for, in the draconian future they are helping engineer…
Well John, that’s plenty enough cheer from here.
BTW, how are things over on the mighty Hudson??