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DOUGLAS F. GANSLER

BRENT A. BOLEA

Attorney General

Assistant Attorney General Counsel to MEA & PPRP

JOHN B. HOWARD, JR. Chief Deputy Attorney General

SONDRA S. McLEMORE STEVEN M. TALSON Assistant Attorneys General

DANNY BARNETT Deputy Attorney General

STATE OF MARYLAND OFFICE OF THE ATTORNEY GENERAL MARYLAND ENERGY ADMINISTRATION 60 WEST STREET, SUITE 300 ANNAPOLIS, MARYLAND 21401 WRITER’S DIRECT DIAL NO. 410 260 7089

EMAIL ADDRESS: [email protected]

September 29, 2014 By e-filing Kimberly D. Bose, Secretary Federal Energy Regulatory Commission 888 First Street, N.E., Room 1A Washington, DC 20426 Re:

Comments on Draft Environmental Impact Statement for Hydropower Licenses, Susquehanna River Hydroelectric Projects (FERC/DEIS-0255D)

Dear Secretary Bose: Attached are the State of Maryland’s comments on the Draft Environmental Impact Statement for the above-referenced proceeding. As the letter is being e-filed on the FERC website, no service is made via mail.

Respectfully submitted, /s/ Steven M. Talson Steven M. Talson Assistant Attorney General Attachment Cc: E-file Service list.

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September 29, 2014 Kimberly D. Bose, Secretary Federal Energy Regulatory Commission 888 First St., N.E., Room 1A Washington, DC 20426 Subject:

Draft Environmental Impact Statement for Hydropower Licenses, Susquehanna River Hydroelectric Projects (FERC/DEIS-0255D) York Haven Project—FERC Project No. 1888-030–Pennsylvania, Muddy Run Project—FERC Project No. 2355-018–Pennsylvania, and Conowingo Project—FERC Project No. 405-106–Maryland/Pennsylvania

COMMENTS ON DRAFT ENVIRONMENTAL IMPACT STATEMENT Dear Secretary Bose: The Maryland Department of Natural Resources, Power Plant Research Program, and Maryland Department of the Environment (the “State” or “State Agencies”) hereby submit the following comments on the Federal Energy Regulatory Commission’s (FERC) Draft Environmental Impact Statement (DEIS) for the above captioned Susquehanna River hydroelectric projects.1 Maryland encourages the use of renewable energy from a variety of sources and welcomes the opportunity to comment on the DEIS. While the State appreciates the efforts of FERC Staff to evaluate impacts and develop recommendations for the Conowingo Project, the State’s position is that the DEIS fails to adequately address all the environmental impacts associated with the Conowingo Project. As set forth in the State’s January 31, 2014 comments, Exelon’s Final License Application (FLA) is deficient with respect to several important environmental impacts, including sediment and nutrient impacts on water quality and

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The State of Maryland has long used a coordinated multi-agency review process for evaluation and comment on federally licensed projects. PPRP is a program within Maryland DNR that performs coordinated reviews of power plants and related facilities with other State agencies, including the Maryland Department of the Environment (MDE). For many years, PPRP has served as the State’s point of contact with FERC with respect to hydroelectric facilities and other projects subject to FERC’s jurisdiction. Consistent with this role, PPRP has submitted comments to, filed interventions with, and taken appeals from FERC and the decisions it renders. PPRP is filing these comments on behalf of DNR and MDE, and speaks for the Departments in this proceeding.

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living resources related to the Conowingo Project.2 Because FERC’s DEIS is largely based on the Applicant’s FLA, the DEIS is also deficient. Despite the challenges and complexities associated with the Conowingo Project, Maryland remains committed to working with the applicant and stakeholders to ensure that the impacts of the Project are properly understood, and that Maryland’s water quality and living resources are fully protected. License Term The DEIS fails to state the proposed term of the new Conowingo license. There is reference to a period of between 30-50 years, which is virtually indeterminate. Many of the specific issues discussed in the following pages, such as operation of fish lifts, are dependent on what term is at issue. Although the Applicant has requested a 46 year license for the Project, it is not clear from the DEIS that FERC Staff supports a license of that duration. Given that the DEIS lacks sufficient information to determine and mitigate environmental impacts, it would be unreasonable at this time to consider issuing a license for the 46 year term sought by the Applicant. Moreover, any new license should include reopeners that will allow for optimal coordination of environmental measures among all hydroelectric projects on the lower Susquehanna River in order to adequately address cumulative impacts. Climate Change The DEIS contemplates a license term of 30 to 50 years, yet fails to consider potential cumulative impacts due to climate change. A range of possible climate change related impacts include average temperature increases with earlier snow melt and higher water levels; changing precipitation patterns with more rain and less snow in winter, causing winter stream flows to increase; decreased snowpack and altered timing of Spring runoff; larger and more severe storms; warming temperatures and more severe drought with increased risk of warmer stream temperatures negatively affecting aquatic organisms and fish species that thrive in cold water and increased scour events, both in frequency and in magnitude. Adaptive management strategies should be used for monitoring and scheduled periodic updates to models over the course of the license term so that management adaptations based on changing climate conditions can be considered. Water Quality and Coastal Zone Consistency The State is evaluating the Applicant’s water quality certification application and assertion of consistency under the Coastal Zone Management Act, and will be issuing determinations on all water quality related and coastal zone issues to ensure that Maryland’s water quality and living resources are fully protected.

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The State reiterates and incorporates herein the concerns expressed in its January 31, 2014 comments on the Final License Application for the Conowingo Project.

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The State offers the following comments at this time on FERC Staff’s recommendations in the DEIS (Staff’s recommendation is in italics, followed by State’s Comment): Upstream Fish Passage (American Shad and river herring) “Implement measures designed to improve upstream fish passage through modification to the existing west and east fish lifts, including: (a) replacing the existing hopper at the west fish lift with a 1,500 gallon hopper;” Comment: A review of west fish lift counts of only gizzard shad for 2013 and 2014 shows that average daily capacity for a 1,500 gallon hopper with a cycle time of more than 15 minutes has been exceeded 76% of the time and that, even if the cycle time was less than 15 minutes, capacity was exceeded 63% of the time. Capacity of a 1,500 gallon hopper, using USFWS guidelines for a cycle time of more than 15 minutes, is 1,542 pounds. Therefore, replacing the existing hopper at the west fish lift with a 1,500 gallon hopper is clearly inadequate to provide for the safe lifting of American Shad at the west fish lift, regardless of whether or not those fish are trapped or allowed to pass volitionally. “(b) improving the west fish lift sorting and loading process to facilitate trap and truck operations and implement a trap and truck program for American shad; (c) conducting a feasibility study for adding attraction flow at the west fish lift and if feasible and beneficial, install additional flow capacity;” Comment: River herring should be included in a trap and transport program and attraction flows should be calibrated to optimize successful fish passage. The west fish lift needs more than just “improvements”, as suggested by FERC Staff’s recommendation. This lift is approximately 42 years old, and as the Applicant states in their Study 3.9, “has been in operation since 1972 with no substantial upgrades or changes to its structure or operation.” Further, “maintenance is currently performed on the lift only when needed; no substantial preventive maintenance or enhancements have been performed over the last 10 years”. Finally, according to the Applicant, the life expectancy on the west fish lift “could be up to 15 years with the implementation of a more proactive preventive maintenance plan”. “(d) restoring the original design for the 900-cfs attraction flow in the east fish lift;” Comment: Restoring attraction flow to 900 cfs, the original design for the east fish lift, no longer meets the current USFWS minimum specifications of 3% to 5% of station hydraulic capacity or 50 cfs, whichever is greater (USFWS Northeast Region Fish Passage Workshop 2014). Using their specifications, the east fish lift attraction flow needs to be increased to 2,580 – 4,300 cfs. Furthermore, FERC Staff goes to great lengths to use Columbia River data to justify their recommended passage efficiency, but ignores NMFS’s recommendation of 5% to 10% attraction flow for west coast facilities (USFWS Northeast Region Fish Passage Workshop 2014). 3

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Comment: According to the Applicant’s Study 3.9, “maintenance is currently performed on the (east fish) lift only when needed” and “no substantial preventive maintenance or enhancements to the east fish lift have been performed over the last 10 years”. This study also states that the “main drive motors and associated drive mechanisms were disassembled and lubricated after each season to extend life of the motors”, but that “this maintenance was terminated in 2000”. According to the study, the life expectancy of the east fish lift could be up to 25 – 30 years with the implementation of a more proactive preventive maintenance plan, but the Applicant failed to maintain their fish lifts in accordance with industry standards during the current license term and Staff’s recommendation provides no requirement for a volitional fish lift during the entire requested license term of 46 years. “(e) adding a second 3,300-gallon hopper to the east fish lift in the space provided for in the original design, and upgrading the electrical and mechanical equipment to allow for a 15minute lift cycle;” Comment: Simply on the basis of lift capacity, the facilities proposed by FERC Staff are inadequate for passage of all fish over the dam and insufficient to ensure that American shad can pass the project efficiently. The gizzard shad population since 2000, when the York Haven fishway opened, has steadily increased. Based on the current population growth trends (below), over 2.1 million gizzard shad will be lifted at Conowingo in 2030.

The Applicant discusses this issue in their Study 3.9 where they say “perhaps the biggest biological concern for fish lift modifications in the context of meeting restoration goals is the dramatic increase of the gizzard shad population since the 1970s”. The Applicant goes on to say “as a plan for improving fish passage at the project is being formulated and agreed to by the Licensee and the various stakeholders, it is recommended that the approach account for this competing population….a variable combination of trap and transport, spawning and release to tributaries, and volitional passage may be warranted”. FERC Staff failed to consider this additional biomass when analyzing hopper capacity.

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“and (f) if 2 years of effectiveness studies, after restoration of the 900-cfs attraction flow, show poor attraction at the east fish lift, conducting a feasibility study for modifying the locations of entrances A and B, and implement if feasible.” Comment: Fishway effectiveness (number passed / number entering EFL) combined for 2010 and 2012 was 60.6% (57 of 94); however, efficiency in the lift was only 44.9% and 25.8% in 2010 and 2012 respectively. The improvements recommended by FERC Staff do not address the problems that are causing this low lift efficiency. This number is in some ways more problematic than the overall fishway effectiveness as conditions inside the lift are independent of unit discharge. Even if 100% of fish in the tailrace entered the fishway, the overall effectiveness would not meet the reasonable standard required for restoration of shad to the Susquehanna River. “Implement a preventive maintenance program for the east fish lift to extend the useful life of the facility over the next license term.” Comment: As discussed earlier, the life expectancy of the east fish lift could be up to 25 – 30 years with the implementation of a more proactive preventive maintenance plan; however, the Applicant has failed to maintain the fish lifts in accordance with industry standards during the current license term and requested that FERC consider a 46 year license term, but has not proposed any major capital improvements at the project to support a license term longer than 30 years. “We are unsure of the basis for the Interior 36-hour criteria, and what an acceptable delay may be. To further assess potential “acceptable” delays, we examined water temperature data from the Harrisburg USGS gage (No. 01570500), located just upstream of York Haven, for 2008 through 2013 (data not available for 2011), to determine when water temperatures typically reach the upper range of most suitable spawning temperatures for shad (71°F – Walburg and Nichols, 1967). The assumption is that once the maximum suitable temperature is reached and maintained and then exceeded, there would be little successful spawning after that point. In reality, however, some spawning would likely continue at higher temperatures, as Walburg and Nichols (1967) report that spawning may occur at temperatures as high as 78°F. The following summarizes when a temperature of 71°F was first reached and then maintained at Harrisburg: 2008 – May 31, 2009 – June 7, 2010 – May 26, 2012 – June 9 and 2013 – May 28. Conowingo dam typically begins fish lift operations by about April 1, although substantial numbers of shad are usually not available until mid-April. An approximate average of the above dates when water temperatures would exceed 71°F would conservatively be about May 31, which would mean that shad reaching Conowingo dam in mid-April would need to pass York Haven in about 45 days. This would mean that fish would need an average of about 10 days to pass each project dam and migrate the distance between each project. For later arriving fish, however, this window would be shorter, with fish arriving by May 1 having a 30-day window, needing to pass each project in an average of about 7 days. If we subtract the travel time (5 to 6 days – see footnote below), this would further reduce the window at each project to an average of about 6 days for fish to locate and successfully pass the fishway at each dam. While we understand Interior’s objective to reduce delay at each project, our simple analysis indicates that Interior’s 36-hour criteria may be overly conservative, and that fish could still reach habitat upstream of York Haven at suitable 5

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spawning temperatures as long as they could pass each project within a matter of days. Our estimate is more in line with the Pennsylvania FBC criteria that 80 percent of the fish pass a project within 5 days.” Comment: Staff’s justification for a 5-day delay does not take into account that hundreds of miles of spawning habitat above York Haven must be utilized in order for the restoration program to meet its goals. Fish arriving at Conowingo (river mile 10) in midApril may have until early June, based on average water temperature, to spawn above York Haven (river mile 55), but American shad need to migrate beyond just this 45 mile stretch of river to spawn successfully. Except for a low quality area between Safe Harbor and York Haven that may support limited spawning females, as calculated by St. Pierre in 1979, the remainder of suitable spawning habitat for American shad and river herring begins above York Haven and continues for hundreds of miles upstream. The time it takes an American Shad to reach the most upstream reaches of this habitat needs to be factored into Staff’s simple math exercise, not just moving past the York Haven dam. General Comments - Upstream Passage Effectiveness: FERC Staff points out that the Safe Harbor Hydroelectric dam, located less than 22 miles upstream of Conowingo, demonstrated a long-term average passage efficiency of 71% since 1997, with no major improvements since construction. Despite this local data, FERC staff looks to Columbia River data to justify not requiring 80% passage efficiency at Conowingo, a goal that is just 9% higher than Safe Harbor’s current long-term average. This is very minimal considering the Applicant has another 30 to 46 years of adaptive improvements that can be made. Two of the upstream hydroelectric projects, Holtwood and York Haven, have agreed to make significant improvements to their upstream fish passage facilities and to passage goals of 75% - 85% in their settlement agreements with the resource agencies. York Haven Power Company has agreed to construct and operate a new nature-like fishway and continue operation of their existing East Channel Fishway with a passage goal of 75%, or 85% of tagged American Shad that enter their Project Area. In contrast, FERC Staff has recommended relatively minor improvements at the first impoundment on the river (Conowingo) which has demonstrated a passage efficiency of only 25.8% in 2012. Downstream Fish Passage (American Shad and river herring) “Use the project turbines as the route for downstream passage of American shad and river herring.” Comment: This is current practice, not a new proposed environmental measure. Further, FERC Staff should have recommended preferential sequencing of the generating units to maximize downstream survival. According to RSP 3.2, the most effective units were the Francis unit which passed adult American shad at 93.0% and the Kaplan unit which passed juvenile American shad at 94.9%. Based on the results of this study, the Francis units should be preferentially operated to pass adult American shad during their 6

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outmigration period (May through July) and the Kaplan units should be preferentially operated to pass juvenile American shad during their outmigration period (October – November). American Eel Restoration “After 2030, construct volitional eel passage facilities on the west and east banks that consist of full eel ramps with resting pools.” Comment: It is premature to recommend volitional eel passage at Conowingo specifically in 2030. Research in this area is ongoing, and licensing terms should be flexible to allow for modifications to optimize restoration methods, timing, and coordination among all hydroelectric projects on the river. Minimum Flow Regime “Modify Exelon’s proposed minimum flow regime to enhance minimum flows from December through February, by eliminating periods with no minimum flow, and by increasing the minimum flow during the first 2 weeks of June, summarized as follows: − September 15 – March 31: 3,500 cfs or natural inflow (as measured at the U.S. Geological Survey Marietta gage No. 0157600), whichever is less; − April 1 – April 30: 10,000 cfs or natural inflow, whichever is less; − May 1 – June 15: 7,500 cfs or natural flow, whichever is less; − June 16 – September 14: 5,000 cfs or natural inflow, whichever is less.” Comment: The State agrees that eliminating periods with no minimum flow is warranted and Staff’s recommendation to increase the minimum flow from 5,000 cfs to 7,500 cfs from June 1st through June 15th is a step in the right direction. However, minimum flows should be developed to better protect and enhance downstream species and habitat, and should be adaptive in nature to allow for potential adjustments based on monitoring through the entire license term. Debris Management “Manage debris to include clamming (with three gantry cranes with grapple attachments) to remove submerged debris from the area upstream of the powerhouse intakes and floating surficial debris in front of the powerhouse intakes, and sponsoring community-based clean-ups in the pond and downstream of the dam.” Comment: Neither the applicant nor FERC Staff have proposed any improvements or new measures for debris management. The study report on this topic identified several options to improve existing practices, including trash rakes, additional collection efforts, skimmer walls, and mechanical skimmer boats like the one retired in 2008 and not returned to service until 2013. The Applicant should be required to develop and utilize Best Management Practices (BMP) on Project lands to remove as much debris as possible during non-spill conditions. 7

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Pond Elevations “Operate the project with a normal daily range of operation of Conowingo Pond between elevations 101.2 and 110.2 feet, with a minimum elevation of 107.2 feet on weekends between Memorial Day and Labor Day, to meet recreational needs.” Comment: Neither the Applicant nor FERC Staff have proposed any modifications to current operational limits. The impoundment, however, has been filling in with sediment since its construction and is nearing dynamic equilibrium. This has begun to affect recreational use of the impoundment, which will continue under the new license unless the Applicant performs maintenance dredging. The Susquehanna River Boaters Association has recommended extending the duration of the recreational season (107.2 feet) from May 1st to October 1st and that all holidays during the boating season, regardless of what day of the week they occur, are included. Although this option may provide some seasonal relief to boaters, it may not adequately mitigate the actual problem. Staff’s Alternative (page xxxiii and xxxiv) includes language recommending that the Applicant be required to modify their Sediment Management Plan to include dredging. Periodic maintenance dredging should be performed where boating access is an issue, or becomes an issue during the new license term. Rare, Threatened and Endangered Species FERC’s Staff Alternative “does not include the U.S. Department of the Interior’s (Interior’s) recommended bog turtle protection plan. Interior did not provide evidence that bog turtles are present within the Conowingo Project boundary, or that bog turtles are potentially affected by project operation or maintenance.” Comment: Communications between FERC staff and MDNR, referenced in a June 9, 2014 docket entry for the Conowingo Project, suggest evidence of the presence of bog turtles at the Project site. Given this data, FERC Staff needs to recommend a bog turtle protection plan. The bog turtle is federally threatened due to unauthorized collectors and habitat loss, and should be protected through an appropriate bog turtle protection plan. “Develop a northern map turtle protection plan to minimize project impacts to map turtles through monitoring, habitat management, and nest site protection.” Comment: The State agrees with the concept of Staff’s recommendation to protect the state-endangered northern map turtle through monitoring, habitat management, and nest site protection. The recommended protection plan, however, should provide for adaptation and modification as studies are complete and the population of map turtles is more accurately estimated both upstream and downstream of the dam. Any plan should include provisions that require adaptive measures be taken in response to routine population studies throughout the license term.

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Sincerely,

Shawn A. Seaman, Program Manager Maryland Department of Natural Resources Power Plant Research Program Tawes State Office Building B-3 580 Taylor Avenue Annapolis, Maryland 21401 phone: 410-260-8662 fax: 410-260-8670 email: [email protected] September 29, 2014

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Document Content(s) State.of.Maryland.Comments.DEIS.filing.letter.9.29.2014.PDF...........1-1 State.of.Maryland.Comments.on.DEIS.P405-106.PDF.......................2-10