In re Brookfield White Pine Hydro LLC

Citation182 FERC ¶ 61, 099
Decision Date16 February 2023
Docket Number2530-061
PartiesBrookfield White Pine Hydro LLC
CourtFederal Energy Regulatory Commission

182 FERC ¶ 61,099

Brookfield White Pine Hydro LLC

No. 2530-061

United States of America, Federal Energy Regulatory Commission

February 16, 2023

Before Commissioners: Willie L. Phillips, Acting Chairman; James P. Danly, Allison Clements, and Mark C. Christie.


Kimberly D. Bose, Secretary.

1. On October 24, 2022, the Sebago Chapter of Trout Unlimited (Sebago TU) requested rehearing of the Commission's order issuing a new license[1] to Brookfield White Pine Hydro LLC (White Pine Hydro) for the Hiram Hydroelectric Project No. 2530 (Hiram Project). Sebago TU is primarily concerned about impacts from the project on brook trout, recreation, and water quality.

2. Pursuant to Allegheny Defense Project v. FERC,[2] the rehearing request filed in this proceeding may be deemed denied by operation of law. However, as permitted by section 313(a) of the Federal Power Act,[3] we are modifying the discussion in the License Order and setting aside the order, in part, as discussed below.[4]

I. Background

3. On November 20, 2020, White Pine Hydro filed an application for a new license to continue operation and maintenance of the Hiram Project No. 2530. The 11.633-megawatt (MW) Hiram Project, built in 1917, is located on the Saco River in


Maine near the towns of Hiram, Baldwin, Denmark, and Brownfield in Oxford and Cumberland counties.[5]

H Historically, the project has been operated in a run-of-river mode, meaning that outflows from the dam and powerhouse approximately match inflows to the upstream impoundment. Hiram Dam impounds a reservoir that occupies 254 acres at full pool and extends about 7.5 miles upstream of the dam.[6] The project's dam diverts flows around Hiram Falls, a 55-foot-high, 500-foot-long cascade composed of a series of ledge drops and pools that make up the bypassed reach. The dam directs flows into a penstock that forks to deliver water to either a 3.008-MW turbine-generator, an 8.625-MW turbine-generator, or both. The diverted water returns to the Saco River at the powerhouse tailwater below the falls.[7]

5. On March 4, 2022, the Maine Department of Environmental Protection (Maine DEP) issued a water quality certification under section 401(a)(1) of the Clean Water Act[8]for the relicensing of the Hiram Project. The water quality certification includes eleven conditions that are incorporated into the license by Ordering Paragraph (D) and are set forth in an appendix to the License Order.[9]

6. On April 20, 2022, Commission staff issued the final environmental assessment (EA) analyzing the potential effects of White Pine Hydro's proposal for relicensing and of reasonable alternatives.

7. On September 23, 2022, the Commission issued a new license to White Pine Hydro for the Hiram Project for a term of 40 years.[10] The new license requires most of the measures proposed by White Pine Hydro as well as measures recommended by Commission staff in the EA, the conditions required by Maine's water quality


certification, and the fishway prescriptions from the U.S. Department of the Interior (Interior).

8. Under the new license, White Pine Hydro will continue operating the Hiram Project in a run-of-river mode.[11] White Pine Hydro is authorized during much of the year to vary the upstream impoundment elevation within two feet of the full pool, but the project has no appreciable storage or flood control capacity[12] Under the new license, White Pine Hydro must not use the reservoir fluctuations for peaking generation.[13]

9. Spill from the dam typically only occurs in April and May if river flows exceed the powerhouse's maximum hydraulic capacity of 2,310 cubic feet per second (cfs).[14] In these months, spill flows range from 391 to 1,687 cfs.[15] Lower flows are directed entirely into the powerhouse, with only leakage flows of 2 cfs from the dam passing over Hiram Falls.[16]

10. To protect downstream aquatic habitat, White Pine Hydro must provide a minimum outflow from the powerhouse equal to 300 cfs (or inflow if less) during the 10-month period from November 16 through the following September 30.[17] If the powerhouse is inoperable, then the required outflow will be released from the dam. At all other times, outflow must approximately equal inflow, while allowing for up to one-foot drawdown of the impoundment.

11. As previously licensed, the dam has no fish passage facilities. Under the new license, White Pine Hydro must install upstream and downstream fish passage facilities for American eel and Atlantic salmon, both migratory species, consistent with the schedule and provisions of the 2007 Saco River Fisheries Assessment Agreement


(Fisheries Agreement).[18] White Pine Hydro must install and operate upstream American eel facilities by June 1, 2025, and must install and operate an upstream anadromous fish passage facility by May 1, 2032, if enough Atlantic salmon return to the site.[19] The Fisheries Agreement includes post-construction effectiveness monitoring of all fish passage facilities.[20] White Pine Hydro's proposed measures for fish passage at the Hiram Project are consistent with the Fisheries Agreement as well as fishway prescriptions from Interior.[21]

12. The prior license for the Hiram Project included four recreational facilities: a canoe portage, a Downstream Access Trail and Sandbar Area, a Nature Study Area, and an overlook of Hiram Falls.[22] The new license requires White Pine Hydro to implement a Recreation Facilities Management Plan under which it will remove the overlook of Hiram Falls from the project boundary and as a project recreation facility, maintain or enhance the other facilities, provide a permanent boat launch on the impoundment, and submit specific methods for recreation monitoring.[23]

13. Also, the License Order authorizes White Pine Hydro to remove from the project boundary a total of 151.5 acres of land and 25 acres of water located in two parcels, one upstream and one downstream from the dam, because the areas do not serve a project purpose.[24]


II. Discussion

A. Incorporation by Reference

14. Sebago TU at various times during the proceeding submitted more than 20 filings, including three separate protests. On rehearing, Sebago TU attempts to incorporate its prior comments and protests by reference and to reserve a right to raise issues from these earlier filings in a future appeal.[25]

15. The Commission has repeatedly "rejected attempts to incorporate by reference arguments from a prior pleading because such incorporation fails to inform the Commission as to which arguments from the referenced pleading are relevant and how they are relevant."[26] Both Sebago TU's attempt to incorporate arguments by reference and to reserve the right to raise additional issues on appeal are improper. Accordingly, those issues not specifically raised in Sebago TU's rehearing request are not properly before us on rehearing and will not be considered.

B. Pending Challenge to Water Quality Certification

16. On March 31, 2022, Sebago TU notified the Commission of Sebago TU's pending appeal of the Water Quality Certification before Maine DEP.[27] On rehearing, Sebago TU argues that the Commission should have reserved authority to later modify the license if Sebago TU succeeds in its state-level challenge to Maine's existing water quality


certification for the relicensing.[28] Sebago TU states that in several past proceedings where the Commission was aware of a pending challenge in a state forum to a state's water quality certification, the license order explicitly reserved authority to later modify the license to be consistent with any changed certification conditions.[29]

17. On December 1, 2022, Maine DEP denied Sebago TU's appeal.[30] As we have explained in the past, it is not necessary that the license include language reserving the Commission's authority.[31] Even if Sebago TU were to enter and succeed in subsequent state proceedings, any resulting changes to the current water quality certification would supersede the current conditions and would automatically become part of this license as a matter of law.[32] However, although we recognize that White Pine Hydro could request to amend the license based on the outcome of the administrative and judicial reviews of the water quality certification, we will grant rehearing in part, and, consistent with our past practice, reserve our authority to amend the license.[33]


C. Environmental Impacts

1. Movement of Brook Trout

18. Sebago TU claims that the Commission erred by denying its request for additional studies of the movement of brook trout and other species over time.[34] As a result, Sebago TU argues, the failure to obtain necessary information compromised Commission staff's analysis in the final EA and the Commission's conclusions in the License Order, violating NEPA and the FPA.[35]

19. Commission staff published a Study Plan Determination on October 11, 2018, approving White Pine Hydro's Revised Study Plan with modifications.[36] Among the approved studies was a Fish Assemblage Study that would primarily use electro-fishing to document the seasonal distribution and abundance of fish species, including brook trout, in the project area.[37] Commission staff did not approve Sebago TU's request for a radio-telemetry study and other studies.[38]


20. Sebago TU argues that the Commission failed to take NEPA's required "hard look" at the environmental consequences of its decision, including "well-considered" and "fully-informed" analyses of the relevant issues and opposing viewpoints.[39] Specifically, Sebago TU claims that the Commission erred by declining to require further studies despite the expanded scope of the cumulative impact analysis required by the court in American Rivers v. FERC, which it claims required the Commission to...

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