LIHI Certifies Benton Falls, Sebasticook River, Maine

Portland, Maine (October 31, 2011) -  At their October 27, 2011 meeting the Institute’s Governing Board determined that the Benton Falls Hydroelectric Project met the LIHI Certification Criteria.  In reaching its decision to certify the Benton Falls Hydroelectric Project,the LIHI’s Governing Board reviewed the application for certification, as well as the Application Reviewer’s report. The Board’s vote to certify the Project was unanimous, and the Board approves certification for the Benton Falls Hydroelectric Project for five-years with the following conditions:

In order to ensure ongoing compliance with LIHI’s Fish Passage and Protection criterion, Benton Falls Associates (“BFA”) shall do the following:

1. Annually report to LIHI on (a) the number of Atlantic salmon and American shad passed upstream during the just completed upstream migration season, and (b) the number of American shad and Atlantic salmon that were found in the facility’s trash racks or otherwise entrained, or found injured or dead downstream of the facility.

2. In the event that more than 100 American shad are passed upstream in any two years of the term of the certification, or any salmon are passed in any single year, BFA shall immediately engage in consultations with the federal and state resource agencies for the purpose of reaching agreement with the resource agencies on the design and implementation of one or more scientifically-valid downstream effectiveness studies to occur the next migration season, and shall report to LIHI whether agreement has been reached with the resource agencies on their design and implementation no later than March 1st of the year in which the effectiveness study (or studies) is to be conducted. Should BFA conclude that one or more downstream effectiveness studies is not timely or otherwise required notwithstanding the occurrence of one or both events described above, BFA shall immediately report this position and its basis to LIHI.

3. Benton Falls Associates shall report to LIHI on the results of any effectiveness study conducted and any conclusions reached within two months of the conclusion of that study. If any of the above conditions are not met, LIHI reserves the right to suspend or terminate its certification. The effective certification date for the Benton Falls Hydroelectric Project is November 23, 2010 and will expire on November 23, 2015. Any Commenter may submit a letter to the Certification Administrator requesting an appeal within 30 days of

the posting of the Certification Decision on the Institute’s Web page. An appeal request must include specific reasons why the hydropower facility should have failed one or more criteria. If an individual or organization did not comment on the initial Application Package, they may not file an appeal.

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Portland, Maine (December 23, 2010) LIHI received the following comment letter from:

Atlantic salmon, unlike Pacific salmon, do not die after spawning, but migrate as adults back to the ocean in the fall, winter or spring after spawning. At this life stage they are called 'kelts.' Once they reach the ocean, they begin feeding again (after starving in freshwater for 6-9 months) and after one or two growing seasons they swim back upstream to spawn again. Upon their return to freshwater, these Atlantic salmon are called 'repeat spawners' and are the largest salmon found in an Atlantic salmon river, often exceeding 20 pounds.

At issue at the Benton Falls Dam is the lack of any device or mechanism to prevent these Atlantic salmon kelts from entering the turbines of the dam during their winter and early spring migration out of the Sebasticook River to the Kennebec River and to the Atlantic Ocean. The migration proclivities of kelts are well documented in the scientific literature; they usually migrate to the sea immediately after spawning in the late fall or wait until the spring freshet in April.

 In early 2010, FKS and Friends of Merrymeeting Bay (FOMB) began an effort to use the FERC licensing process to encourage the Benton Falls owners to leave in place year-round the full-depth turbine screening they install for outmigrating American eels for approx. 8 weeks during the fall to prevent American eels from being killed in the dam turbines. This screening was installed due to our direct observation and documentation of massive American eel kills below the dam in the fall of 2004 and in previous years.

We made this specific, operational request to FERC and Benton in 2010 because Atlantic salmon kelts because long experience at the dam shows that turbine screening is necessary to keep large fish, like Atlantic salmon kelts, from making contact with the project turbines and being killed in them. Despite our repeated requests and scientific proffers in 2010, the Benton Falls owners have thus far refused to adopt this modest protective measure. The full administrative record for our efforts, and Benton's and FERC's letter responses, is located at the FERC electronic docket for the dam at www.ferc.gov. The substance of this record is self-explanatory and need not be restated here.

We also note that although the Benton Falls dam owners passed and documented four large, adult anadromous Atlantic salmon at their upstream fish elevator in 2009, the company has not filed with the U.S. Dept. of Interior and Commerce an application for an "Incidental Take Permit" under Section 10 of the U.S. Endangered Species Act in the event that these salmon and/or their progeny could be killed or injured at the dam in violation of federal law.

The need for immediate mitigative measures at the Benton Falls Dam for all life stages of Atlantic salmon is dire because of the way the dam was built in 1986-1987. This dam was designed to eliminate any spillage over the dam and to force all of the Sebasticook River's flow through the project turbines at all flows and all seasons. From an engineer's perspective, it is a very well designed dam, but from a fishes' perspective it is a certain death sentence, unless the constructed 'downstream passage system' is functioning and properly operating when the fish arrive at the dam, and the system is designed for the species and lifestage in question. 

Records show the Benton Falls dam, and its downstream bypass system, was never designed or tested to safely pass Atlantic salmon kelts. The full-depth screening installed at the dam in the fall of each year to protect American eel would be highly beneficial to Atlantic salmon kelts, but according to company filings with FERC, this screening is removed and is not present during the period when Atlantic salmon kelts migrate down the Sebasticook to the Kennebec and the Atlantic Ocean.

Based upon state and federal information and records, the Benton Falls Dam may have killed all four endangered Atlantic salmon in its turbines during the spring of 2010 as they tried to migrate to sea after passing over the dam in summer 2009.

For these reasons, we do not understand how the Benton Falls Dam could be classified as a 'low impact' hydro project when evidence shows it has most likely killed some or all of the first Atlantic salmon to have ever ascended the Sebasticook River since 1837; and the dam owners to date have refused to take any remedial and easily affordable actions to prevent this killing and future killings.

Portland, Maine (January 17, 2011) LIHI received the Applicant's response to Doug Watts' January 6 letter

Attn: Mr. Fred Ayer

Dear Mr. Ayer,

            Benton Falls Associates (“BFA”) has received your email that forwarded a comment sent to the Low Impact Hydro Institute (“LIHI”) by Mr. Douglas Watts. BFA is pleased to respond to this comment.

            BFA is proud of its project operating record since the present owners of BFA assumed ownership of the project in 2006. The LIHI application now before you provides specific evidence that BFA has been an excellent business citizen. BFA believes that it has cooperated fully with the agencies that regulate the BFA project as evidenced by the successful operation of the BFA fish passage facilities and its cooperation with the Town of Benton in supporting its fish-harvesting program

            It is unfortunate that Mr. Watts has chosen to raise this issue with the LIHI rather than to make BFA directly aware of the problem that he experienced in August. BFA has no record that Mr. Watts ever attempted to contact BFA or any of the regulatory agencies overseeing the BFA project to make his complaint, notwithstanding the fact that BFA maintains a large sign on the eastern shore of the dam that provides BFA contact information in the event of any confusion or disappointment with the recreational access opportunities (see exhibit 1). To the best of BFA’s knowledge, Mr. Watts complaint concerning access to the BFA canoe portage area is the first complaint BFA has ever received regarding this issue.  BFA can assure the LIHI that BFA would have dealt with the problem immediately had it been aware that there was a problem.

            Nevertheless, Mr. Watts complaint has caused BFA to carefully review its obligation regarding the portage trail at the Benton dam. The BFA FERC application clearly sets forth in detail (see attached exhibit 2) that BFA is required to maintain a portage trail around the Benton dam.  The land ownership at the eastern dam abutment consists of both privately owned land and BFA’s owned land. BFA does not own land that provides direct access from the nearest public road to the tailrace at the eastern dam abutment. (see exhibit 3)  BFA believes that the land that Mr. Watts attempted to cross to launch his canoe was, in fact, privately owned and that no part of that homeowner’s property is a federally designated river access point

            Notwithstanding the fact that the FERC license does not obligate BFA to provide a public access point to the eastern shore at the dam, BFA owns sufficient property in the vicinity of the eastern dam abutment that it is able to provide a launching site on the eastern riverbank above the dam and the public has used BFA owned land to launch vessels at the dam. If a member of the public desires to use the river below the BFA dam, they must access the river above the dam and cross BFA owned property thereby avoiding privately owned property and then use the portage trail to bypass the dam and reach the river below the dam.

            In the interest of fully responding to the issue raised by Mr. Watts BFA will install additional signage on the eastern bank of the river detailing the extent of BFA property ownership and clearly setting out the path to be used to launch canoes or other vessels in the vicinity of the dam. BFA also has contacted all of the landowners in the vicinity of canoe portage regarding the project’s obligation to provide recreational access to the general public. In the course of these contacts BFA learned that one of the adjacent landowners actually has assisted several boaters in moving their canoes along the portage trail. As in the past, the mandated portage trail will continue to be available for public use.

            BFA hopes this fully responds to Mr. Watts complaint. If you have further questions please contact Mr. Stephen Hickey.

                    BENTON FALLS ASSOCIATES

                                                                                                    President

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Portland, Maine (January 6, 2011) LIHI received the following comment letter from Doug Watts:

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Dear Mr. Ayer,

With the removal of the Fort Halifax Dam at Winslow, Maine in 2008 the lower reach of the Sebasticook River, Maine has become an attractive recreational area, especially for canoeing and kayaking from the Benton Falls Dam to the Kennebec River, an approx. 6 mile trip. My family has for several years canoed this reach of the Sebasticook.

This summer, in August, my family and guests attempted to use the official 'portage trail' at the Benton Falls Dam to launch our canoes and gear into the river to begin our trip on the south side of the river in Benton, opposite the dam powerhouse. Upon doing so, we were confronted by the owner of the house next to the river who claimed that we were trespassing on his 'lawn' and property and asked us by what right we had to even be there. Being familiar with the site for the past 15 years, I informed the homeowner that what he considered his 'lawn' was actually the official portage trail established in FERC license for the Benton Falls Dam to allow people to get into and out of the river at the dam site.

Because we were both level-headed about the issue, a confrontation was eventually averted, however, it became apparent to me that the current owners of Benton Falls Dam have apparently not informed this landowner that there is a formal right of way for canoeists across this gentleman's land to let people get to the river. To date, the right of way is not marked in any way. The only signs that exist are "no trespassing" signs along the high stone wall along the river just below the dam spillway. There are no signs marking the public right of way. Except to me, nobody would know a public right of way to the river even existed at the site.

Apparently BFA has never informed this homeowner that part of his property is a federally designated river access point for hand-launched canoes and walk-in public access to the river. This failure by BFA almost ruined our family's canoe trip on the Sebasticook this August and almost caused a nasty confrontation with a not very pleasant landowner, who in his defense, had no idea that part of his yard is a public right of way to the river. The FERC license for Benton Falls specifically requires the licensee to maintain and mark this right of way and launch in point so that the public is aware that it exists. Instead, what we were confronted with in August was an adjoining landowner who had claimed the entire riverbank as "his yard" and was wondering upon what precept we were trespassing upon it.

Providing, marking and maintaining public access points for fishing, swimming, nature photography, parking and canoe pull-out and put-in points is perhaps the most basic responsibility of a FERC licensee. Our experience this August indicated that BFA has grossly neglected this most basic obligation, to the point that my family almost came into an incendiary confrontation with a confused and irate landowner, who believed that we were trespassing on 'his' land, even though we were using the now neglected FERC-required right of way to the river from the dam site. This should not happen.

Prior to LIHI considering BFA's application, I respectfully request LIHI require BFA to provide an explanation for this lapse and how they intend to remedy it.

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Portland, Maine (January 4, 2011) - LIHI received this Public Comment from Doug Watts.   We will post his comments and any responses you may have to our website.  The 60-day comment period for the Messalonskee closed July 9th, Stillwater, Orono, and Medway closed August 2nd, and the Benton Falls Project will close January 23rd.

Hi Fred:

In the past two months I have examined LIHI applications for numerous hydro dams in Maine on the Kennebec and Penobscot: Messalonskee, Benton Falls, Stillwater, Orono, Medway.

All of these dams are within the historic habitat of Atlantic salmon and some are in designated Critical Habitat for Atlantic salmon. I am intimately familiar with all of these dams. The FERC licensing and Maine WQC and USFWS fishway prescriptions for all of these dams were written and set down as much as a decade before Atlantic salmon were listed as an endangered species in June 2009. As such, in my humble opinion, what the licenses and prescriptions and WQCs say about required fish passage at these dams is now totally outdated, since they were written before the salmon were listed, and for this reason cannot be used now as a benchmark for LIHI approval.

The benchmark for these dams now has to be the ESA. As you know, if any dam can even possibly cause a 'take' of an endangered species, it must apply for and receive an Incidental Take Permit under Section 10 of the ESA. None of the above Kennebec and Penobscot Dams have applied for and received Incidental Take Permits for their existing operations.

It is obviously not the intent of LIHI to be certifying dams that are, or could be, violating the ESA by harming Atlantic salmon (directly through turbine contact) or by keeping them from swimming past the dams. These dams (and owners) need to first get ITPs under the ESA before applying for LIHI certification. In the existing context, having a validly issued ITP should be a prerequisite for even applying for LIHI certification at these dams.

I am offering this suggestion and recommendation in lieu of having to repeat it for all of the various Maine dams subject to the ESA that are now seeking LIHI certification; and I offer it as a helpful suggestion.

Thanks,

Portland, Maine (January 24, 2011) - LIHI received the following letter from Benton Falls Associates responding to Doug Watts' January 4th letter (see above).

 January 24, 2011

Portland, Maine (November 23, 2010) – The Low Impact Hydropower Institute (LIHI) announced today that Benton Falls Associates, L.P. (“Applicant”) has submitted an application for certification of the Benton Falls Hydroelectric Project (“Project”).  The project is located in the village of Benton, Maine on the lower reaches of the Sebasticook River and is 5.3 miles from the confluence of the Sebasticook and Kennebec Rivers in Winslow, Maine.

The area around Benton village and Benton Falls sits in a broad valley cut through deep marine and lacustrine deposits of gravel, sand, silt, and clay surficial deposits. The generally flat or gently rolling topography of the valley is cut by the steep gully banks of the Sebasticook River. Upstream in the project area, some areas of glacial till are present. However, the nearly flat to gently rolling topography continues along the Sebasticook well north of the town of Benton.

The Sebasticook River basin has a drainage area of 975 square miles and is the largest sub basin of the Kennebec River system.  Almost 90 percent of the total drainage area (860 miles) is upstream of the site. The project is operated as a run of river plant. The downstream release through the turbine-generators plus the excess spill over the dam equals the inflow to the reservoir.  Streamflows at the project site are based on daily flow data recorded at U.S. Geological Survey (USGS) surface water Stream Gauging Station No. 01049000. The gauge is located approximately 14 miles upstream of the project site in Pittsfield, Maine, and has a period of record extending back to 1929.  The Benton Falls Project works consists of: (1) a 500-foot long, 27-foot high concrete gravity dam with a 300-foot long integral uncontrolled spillway topped by 4-foot high flashboards; (2) a powerhouse located near the west dam abutment, constructed integrally with the dam, containing two turbine generators with a total rated capacity of 4.468MW; (3) a 350-foot long tailrace channel; (4) the 4.16-kV generator leads, 4.16/12-kV step-up transformers and a 170-foot long, 12-kV transmission line; and (5) a fish lift which contains a 600-gallon hopper and a minimum cycle time of approximately seven minutes.

The project discharges a continuous minimum flow of 100 cfs from the Benton Falls Project of the inflow to the reservoir, whichever is less, for the purpose of protecting fish and wildlife resources and water quality of the Sebasticook River.  Construction of the Benton Falls project was completed in 1984. The powerhouse contains two turbine generators with a total rated hydraulic capacity of 2115 cfs under a gross head of 29.5 feet. The project utilizes all of the available head and about 79% of the streamflow.

FERC licensed the Benton Falls project without requiring fish or eel passage facilities. On January 25, 1989, as part of the Kennebec Hydro Developers Agreement (“the KHDG Agreement”), the Applicant’s FERC license was amended to require installation of upstream and downstream fish passage facilities.

Both upstream and downstream fish passage facilities were installed in 2006. The upstream fish passage facility consists of an elevator designed to pass alewives, shad and salmon. The downstream fish passage facility consists of two conduits that maintain a minimum flow of 350 cfs or project inflow that bypass the turbines. The upstream and downstream facilities became operational in the spring of 2006 and now have operated during five upstream and downstream fish migration seasons. These facilities have been highly successful. A record 1,319,137 alewives were transported upstream during the 2009 migratory season using the fish elevator. An even greater number were transported during the 2010 upstream migration season. 

Public Comments

We encourage public comments on this application. Specifically, we are interested in knowing whether you think the Benton Falls Project meets our LIHI criteria. Review the program and criteria in greater detail and then review the Benton Falls  Project’s application. Comments that are directly tied to specific LIHI criteria (flows, water quality, fish passage, etc) will be most helpful, but all comments will be considered.  Comments may be submitted to the Institute by e-mail at info@lowimpacthydro.org  with " Benton Falls Project comments" in the subject line; by fax at (206) – 984-3086; or by mail addressed to LIHI, 34 Providence Street, Portland, ME, 04103. Comments must be received at the Institute on or before 5 pm Eastern time on January 23, 2011 to be considered. All comments will be posted to the web site and the applicant will have an opportunity to respond. Any response will also be posted.

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