INSTREAM FLOW USES, VALUES &
POLICIES
IN THE
UPPER CONNECTICUT RIVER WATERSHED
A report to the
Connecticut River Joint
Commissions
Prepared by
Kathy Fallon Lambert
Hanover, NH
April, 1998
EXECUTIVE SUMMARY
INTRODUCTION
.....The fresh
water that runs through the rivers and streams of
the upper Connecticut River watershed is a finite
resource. At any given time, the amount of water
flowing through a waterway depends upon local and
regional weather, watershed characteristics, and
water use. As the population of Vermont and New
Hampshire increases, we are faced with the
challenge of balancing uses that alter stream flow
with the human activities and ecological values
that depend upon this flow. The challenge has
become the focus of numerous policy discussions at
the state and federal level.
..... This study of
instream uses, values, and policies in the
Connecticut River's upper watershed arose from the
need to understand water policies affecting the
river's flow, and from the Connecticut River Joint
Commissions' interest in promoting cooperation
between New Hampshire and Vermont. The study was
supported by funding from the US Environmental
Protection Agency.
INSTREAM FLOW USES AND VALUES
IN THE CONNECTICUT RIVER WATERSHED
..... The waters of
the upper Connecticut River basin are utilized for
water supply, hydro power, snowmaking, irrigation,
mining, and flood control. Chapter 1 describes the
operation of 45 major dams among the more than
1,000 dams in the watershed. These dams provide
energy, recreation opportunities, and flood control
benefits, yet they also cause severe fluctuations
in flow and impoundment levels, create dryways, and
contribute to erosion and sedimentation.
..... Water
withdrawals also influence the volume and timing of
flow in the river and its tributaries. Existing
data indicate that there are at least 80 surface
water withdrawals serving commercial, private, and
public uses in the upper watershed. Groundwater
withdrawals number in the hundreds. With the
notable exception of ski areas, most of these
withdrawals have no minimum flow requirement to
protect instream uses and values.
INSTREAM FLOW CONCERNS
..... Managing and
restoring rivers requires consideration of the full
range of flow conditions. The most effective
strategies focus on all parts of the river channel
(margin to mid-channel) and all life stages of
aquatic biota (insect hatches to fish rearing), and
strive to mimic natural flow conditions to the
extent possible. Where flow alterations severely
diminish or exaggerate natural hydrologic
variation, degradation of habitat, recreation, and
streambanks can result. These concerns are
evidenced by the 35 instream problem areas
identified in Chapter 2. These are areas where flow
alteration or off-stream water use has compromised
instream recreational, physical, or ecological
values. In some cases, these concerns are serious
enough to warrant listing on the state "303d list"
of impaired waters submitted to the US
Environmental Protection Agency.
STATE AND FEDERAL POLICIES
RELATED TO STREAM FLOW
..... While a new
water use permit system may seem an attractive
option for dealing with this challenge in the short
term, the findings in Chapter 3 indicate that
current laws and regulations can be used to addess
instream flow issues. Recent US Supreme Court
cases, including Tacoma and Tunbridge, and the
Vermont Water Resources Board's denial of the water
quality certification for dams on the Lamoille
River, are ushering in a new era of water quality
policy. There is a growing acknowledgment of the
legal and regulatory responsibility to recognize
water quantity as integral to water quality and
river health. This common sense approach accepts
that a trickle of water, no matter how clean,
cannot support fishing, swimming, and other
designated river uses protected by the federal
Clean Water Act. State and federal agencies are
struggling as water policy evolves to address
increased magnitude, frequency, and duration of
extreme flow conditions brought on by human
use.
OPPORTUNITIES FOR INSTREAM FLOW POLICY
IMPROVEMENT AND COORDINATION
..... There are
several on-going policy discussions that present
opportunities for the Connecticut River Joint
Commissions to help clarify and coordinate instream
flow policy and management. In 1992, the New
Hampshire legislature adopted the Connecticut
River, from the headwaters to the Massachusetts
border, into the New Hampshire Rivers Management
and Protection Program. As part of this program,
the Department of Environmental Services has been
working for several years to develop an instream
flow rule. This report recommends a number of
revisions to the current draft rule to improve
consistency with other state and federal policies
and to reduce its administrative burden.
..... The license
for the Fifteen Mile Falls hydropower project on
the upper river, which includes Moore, Comerford,
and McIndoe Falls dams, expires in 2001. New
England Power Company has joined in a settlement
agreement with a number of stakeholders, including
the CRJC, to define future operating conditions
that would enhance ecological and recreational
conditions near the project. This report identifies
potential outstanding issues that may be raised in
upcoming regulatory processes at the state or
federal level.
..... As required
by the Clean Water Act, both New Hampshire and
Vermont are currently revising their water quality
standards. The US Environmental Protection Agency,
which ultimately approves these standards, is
urging states to include water quantity provisions
within them. There is an opportunity to synchronize
revision and define mutually agreed upon strategies
for incorporating stream flow into the new
standards. The water quality standards are perhaps
the most powerful tool for ensuring bi-state
consistency and adequate instream flow protection.
However, they must be accompanied by clear
guidelines to ensure that flows are incorporated
into permitting procedures.
..... In 1981, the
New England region of the US Fish and Wildlife
Service adopted an interim policy for stream flow
recommendations. The purpose of the policy was to
guide agency personnel in their determinations of
flow needs at hydro power projects. The interim
policy is also a valuable model for state resource
agencies. Since 1981, significant advances have
been made in understanding river systems. Further,
large snowmaking water withdrawal cases and
additional hydro power relicensings have
demonstrated the potential need to adopt a formal
policy. The pros and cons in advocating expansion
and adoption of the interim policy must be
carefully weighed.
..... Finally, the
US Army Corps of Engineers is undertaking
Environmental Assessments for all flood control
dams in the region, including the seven projects in
the upper Connecticut River basin. While the Corps
is required to issue notice of its intent to
conduct such an assessment, no other effort has
been made to coordinate with state resource
agencies, watershed groups, and conservation
organizations to evaluate the balance between flood
control and other downstream resources. Given the
recreation value and presence of endangered species
in the flood control project areas, a full
Environmental Impact Statement may be warranted in
some cases.
..... The
interrelated issues of instream flow, water
quantity, and water use will intensify in the upper
Connecticut River watershed. Rarely does the chance
to influence the policies described above present
itself. Specific actions recommended for state and
federal agencies are detailed in the final chapter.
Given the CRJC mission to understand and protect
the river's flow and a healthy aquatic ecosystem,
its bi-state orientation, and its effort to develop
citizen involvement in river issues, the CRJC is
the logical organization to take the lead in
advancing instream flow policy and coordination in
the upper Connecticut River watershed.
SUMMARY OF RECOMMENDATIONS BY
AGENCY
Connecticut River Joint Commissions
1. Make instream flow a high priority and begin
working to implement the recommendations of this
report. Create an instream flow strategy and
working group (including Commission and
non-Commission members).
2. Encourage an integrated approach to water
resource management in both states. Convene a
conference for agency officials in the near future
with the goal of providing materials on the latest
information supporting instream flow protection,
the regulatory requirements evolving at the federal
level, and the various policy approaches that have
been taken in other states.
3. Participate in the WQS revision process in
both states with the stated purpose of informing
them of approaches and standards in the other state
and to watch for areas of inconsistencies and
conflicts.
4. Work with its local river subcommittees to
track the 35 areas of concern listed in Chapter 2
and determine whether conditions are improving.
Encourage biomonitoring work where necessary,
beginning with the 18 areas already listed on the
Vermont or New Hampshire 303d lists.
5.Work with NEIWPCC and EPA to develop and
propose a memorandum of understanding between New
Hampshire and Vermont to notify and seek comment
(and potentially sign-off) on 401 applications on
the mainstem and major tributaries--at least for
projects above a particular threshold.
6. Encourage NH to complete its inventory of the
status of legislatively authorized water rights and
work with the legislature and NHDES to assess the
judiciousness of continuing to appropriate public
water resources through the legislature.
7. Work with NHDES and VTANR to survey small
dams in the upper watershed, and the extent of
their winter drawdown and potential impacts to the
aquatic ecosystem.
8. Serve as an information source regarding the
development of EAs at U.S. Army Corps of Engineers
flood control projects. Encourage state agencies
and local river subcommittees to respond to the
Corps public notice.
9. Encourage a long-term comprehensive research
effort to understand the effects of flow
manipulation for hydro power generation, through
the mitigation and enhancement fund established
through the settlement agreement for Fifteen Mile
Falls. Participate in the administration of this
endowment with the help of a scientific advisor by
developing an annual request for proposals to
address pressing resource issues and ensure that
research results are including in the
policy-making, restoration and decision-making
process.
STATE AGENCIES
New Hampshire
1. Continue to strengthen its WQS by including
language which ensures the protection of existing
and designated uses as described in Chapter 3. If
changes to the WQS are adopted, NHDES should have a
strategy for educating state officials and the
public. This could include a fact sheet and
in-house briefings to clarify how the WQS should be
interpreted in permitting. Use the WQS to
incorporate flow conditions in state permits
associated with all water development projects.
Include the CRJC and conservation groups on the WQS
Advisory Board.
2. Improve the surface water classification
system so that it can better guide management and
regulatory decisions.
3. Issue a guidance document that uses the
USF&WS interim policy to establish permitting
guidelines that protect aquatic life. Consideration
should also be given to additional protection for
the mid- and high-flow range of the hydrograph. If
this is not possible for all uses, NHDES should
start with new uses and create a process for
existing uses to meet this standard over time.
4. Add 2 staff people to the 401 program to
support more comprehensive 401 certifications.
Funding for these positions could come through
contracts with hydropower and ski area operators
that are responsible for the majority of the 401
workload. Develop an inter-departmental instream
flow team to educate staff on the importance of the
issue, establish it as department priority, solicit
staff input, and coordinate permitting.
5. Work toward a system in which water users
above a de minimis threshold have the capacity to
monitor their use and determine when it must be
curtailed based on instream flow. Encourage flow
monitoring by creating an assistance program for
water users to develop or access gage data. Make
aid available to create off-stream storage ponds
and implement conservation programs as an
alternative to on-stream use where a water use is a
high public priority (such as public water
supply).
6. Conduct a review of the dam permit system and
consider the feasibility of including instream flow
requirements when a permit is issued or
renewed.
7. Commit to a process of re-drafting the
instream flow rules for protected rivers consistent
with the direction outlined in EPA, USF&WS and
VTANR policies. Chapter 4 outlines specific
considerations.
Vermont
1. Strengthen the WQS by including an explicit
reference to the importance of protecting the full
range of flows. If changes to the WQS are adopted,
VTANR should have a strategy for educating state
officials and the public. This could include a fact
sheet and in-house briefings to clarify how the WQS
should be interpreted in the permitting and
regulatory process. Use the WQS to incorporate flow
conditions in state permits associated with all
water development projects.
2. Revise the Agency Procedure to conform with
its snowmaking rule and apply it consistently to
new and existing uses on a state-wide basis.
3. Improve the surface water classification
system so that it better guides instream flow
management and regulatory decisions.
4. Consider making its 401 staff available on an
interim basis to assist NHDES with certification of
the upper Connecticut river mainstem dams.
5. Explore the UAA as a mechanism for
reconciling reservoir drawdowns and flow
fluctuations with the requirements of the water
quality standards.
6. Develop an inter-departmental instream flow
team to educate staff on the importance of the
issue, establish it as department priority, solicit
staff input, and coordinate permitting.
7. Work toward a system in which water users
above a de minimis threshold have the capacity to
monitor their use and determine when it must be
curtailed based on instream flow. Encourage flow
monitoring by creating an assistance program for
water users to develop or access gage data. Make
aid available to create off-stream storage ponds
and implement conservation programs as an
alternative to on-stream use where a water use is a
high public priority (such as public water
supply).
8. Develop a water user registration and mapping
program to better assess the extent and
distribution of surface water withdrawals,
including proximity to discharges.
FEDERAL AGENCIES
Environmental Protection Agency, Region
1
1. Issue a guidance document on how to
incorporate instream flow/water quantity issues
into the WQS. Work with the states to synchronize
water quality standards revision processes and
share information and approaches, particularly for
dealing with instream flow.
2. Issue recommendations on how surface water
classification systems in each of the states could
be modified to address different goals and
objectives, and guide instream flow management.
3. Include flow-impaired waters in the 303d
process and develop an alternative to the TMDL
approach to water quality improvements.
4. Provide a letter to the NHDES Commissioner
and VTANR Secretary explicitly recognizing that the
Tacoma decision gives states the authority to
include flow standards in 401 certifications.
Provide further guidance regarding conditions which
should be in the 401, including minimum tailrace
flows, minimum bypass flows, up and down ramping
flows, impoundment fluctuation limits in summer and
winter, flash board replacement, and reservoir
refilling flow requirements.
U.S Fish & Wildlife Service
1. Issue a supplement to the current 1981
interim flow policy. This document should include
specific strategies for addressing the gap between
natural and minimum flow conditions and articulate
the importance of hydrograph protection,
particularly value for spawning and incubation,
ecological diversity, physical processes and
channel conditions.
2. Develop a guidance document to inform the
states in addressing backwater/reservoir drawdown
issues and flow fluctuations at hydro power
projects.
U.S. Army Corps of Engineers
1. Consider the need for full Environmental
Impact statements in the rivers where endangered
species are in the vicinity of the flood control
projects: Ompompanoosuc, West and Ashuelot
rivers.
2. Evaluate the impact of flood control
operations on ecological and recreational
resources. Special attention should be given to the
endangered species near the Union Village, Ball
Mt., Townshend, Surry Mt. and Otter Brook dams.
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