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Battle Over the Milford Dam Heating Up


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E&E News is behind Politico's paywall and is included in their subscription based Politico Pro product: E&E News' five daily publications deliver original and compelling journalism that keeps top decision makers in government, business, NGOs and academia informed and ahead of the curve. 03/08/2023 01:51 PM EST

A dam owned by energy giant Brookfield Renewable Partners LP is endangering federally protected Atlantic salmon in Maine’s Penobscot River, environmental groups and a Native tribe say.

Documents obtained by the Natural Resources Council of Maine (NRCM) show that most Atlantic salmon are unable to migrate upstream past the Milford Dam in a timely way. This is in violation of standards set by the Endangered Species Act and the dam’s Federal Energy Regulatory Commission license that require that 95 percent of upstream migrating Atlantic salmon pass the dam within 48 hours of their approach.

According to data compiled by the Maine Department of Marine Resources between 2014 and 2019, 79 percent of Atlantic salmon studied did not pass the Milford Project within 48 hours.

“Since 2014, the Milford project has never met performance standards for endangered Atlantic salmon, and the dam owners have made no effort to fix the problems,” said Dan McCaw, fisheries program manager with the Penobscot Nation, in a press release. “To date, the Federal agencies responsible for licensing the dam’s operations allow this to continue without consequence or even a timeline to remedy this critical bottleneck.”

To the contrary, David Heidrich, spokesperson for Brookfield Renewable U.S., said the company “has diligently implemented the requirements of the Penobscot River Restoration Project settlement, including the installation of the fish lift at Milford Dam. The Milford fish lift collectively passes over 95 percent of salmon, and Brookfield continues to work diligently with the relevant regulatory agencies on measures to improve passage delay performance. Furthermore, the settlement has been consistently hailed as a resounding success by the very organizations which are now suddenly criticizing it.”

NOAA Fisheries did not immediately respond to a request for comment.

Atlantic salmon have been protected by the Endangered Species Act since 2000.

The fish used to be native to almost every river north of the Hudson in New York, but its stocks have been in decline since the mid 1800s amid habitat destruction and overfishing, according to NOAA. To breed, the fish leave the ocean and return to freshwater systems. Young Atlantic salmon live the first one to two years of life in rivers and streams.

Now, the only native populations of Atlantic salmon in the United States are found in Maine. That’s why fish passage in the Penobscot is so important, environmental groups say.

“There are only two large rivers in the U.S. left with populations of Atlantic salmon — one is the Penobscot, other is the Kennebec. These two rivers really are the last stand for Atlantic salmon,” NRCM staff scientist Nick Bennett said in an interview. “Restoring Atlantic salmon populations in both rivers is critical to preventing them from going extinct.”

And passage delays are hindering the rare fish species’ ability to recover, resulting in mortality and poor spawning success, according to John Burrows, the executive director of U.S. operations for the Atlantic Salmon Federation.

Adult salmon returning to the Penobscot River have only fat and energy reserves to get them through to spawning. When fish search for ways to pass the dam, they spend those reserves, sometimes before reaching critical spawning and cold-water refuges high in the watershed.

And the Milford Dam is the first that Atlantic salmon and other fish species encounter in the watershed. Milford was built in 1905 for hydropower generation. In the 2010s, several features meant to aid fish passage were installed, including a fish lift specifically for migrating fish like the Atlantic salmon that was constructed in 2014, according to the Low Impact Hydropower Institute.

The LIHI is a nonprofit organization whose purpose is to define and certify low-impact hydropower. The organization last renewed certification for the Milford Dam in 2018.

Certification, according to the group’s website, includes an extensive process culminating in a public comment period. Certification is based on eight factors, including safe, timely and effective upstream and downstream fish passage. Milford Dam’s certification as a low-impact hydropower project is, in part, contingent on providing documentation that shows upstream passage for Atlantic salmon meets the biological order.

Mary-alice Fischer, certification program director for LIHI, said the Milford Dam has a fish lift and a backup fishway, commonly called a fish ladder. The fish lift includes collection facilities for counting, sorting, trapping and trucking fish that are captured. An upstream fishway for another aquatic species, the American eel, is installed seasonally at the spillway, she said.

These fishways were developed with and approved by the Fish and Wildlife Service and NOAA Fisheries. Environmental groups and the Penobscot Nation said that both existing passageways on the dam are ineffective.

Overall, McCaw said, the existing structures are a one-size-fits-all method to accommodate multiple species of fish that pass at different times of year during different life stages and bring varied abilities, instincts and behaviors that either help or hurt them in negotiating fishways.

While Fischer said these existing fishways have been effective in promoting downstream passage, she acknowledged that data shows the structures do not meet all upstream passage performance standards for the Atlantic salmon due to delays in fish successfully passing the dam.

“LIHI certification is contingent upon the project continuing to meet our science-based criteria, not on external factors such as lawsuits,” Fischer wrote in an email. “We review compliance annually and consider new information that becomes available. LIHI has revoked or suspended certifications at projects that have violated our program terms and conditions.” Restoring Atlantic salmon populations and other aquatic species on the Penobscot has been top of mind for environmental groups. The Penobscot River Restoration Project brought together nonprofit, federal and tribal stakeholders to balance hydropower production and fisheries restoration through removal of two dams and modifications to several others to improve fish passage.

A study recently published by the American Fisheries Society found these changes resulted in positive outcomes for Atlantic salmon and other fish in a three-year survey of the area following the rehabilitation.

But the benefits of the restoration work throughout the watershed hinge on the fish first passing Milford, Burrows said. “Milford is gateway to the vast majority of Penobscot watershed,” he said.

On the Kennebec River

Milford Dam is just one of Brookfield’s 229 hydropower facilities. And it’s not the first to draw criticism from environmental groups.

The same organizations now criticizing Milford Dam’s shortcomings sued the company in September 2021 for violating the ESA in killing salmon in Maine’s Kennebec River watershed.

A federal judge opted not to issue a preliminary injunction that would force Brookfield to curtail operations during Atlantic salmon migration while awaiting hearings.

The lawsuit specifically targeted four dams that, the groups say, block access to spawning and rearing habitat for Atlantic salmon, which results in fish deaths or “takes.” The lawsuit mentions faulty fish lifts, poor water quality and overall diminished habitat for the Atlantic salmon as a result of Brookfield’s man-made structures.

The basis of the 2021 lawsuit is the expiration of Brookfield’s existing take permits for the four hydropower projects in 2019. The groups say their actions violate the provisions of the ESA, which defines the term “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct” and makes it illegal to do so. Incidental take permits give private entities, like Brookfield, permission to accidentally “take” a threatened or endangered species as a result of an otherwise lawful project.

Room for improvement

What environmental groups want to see on the Milford Dam, Bennett said, is simply compliance with the ESA.

That means passing the fish. Burrows said fish are typically attracted to the western side of the river, so the company should install a second fish lift system on that side. The existing fish ladder in the center of the dam needs to be rehabilitated, too.

McCaw said fish need multiple passageways to ensure they aren’t caught in the dam’s turbines. The Penobscot Nation’s goal, though unrealistic, would be removing the Milford Dam and man-made structures to return fish to an open river migration.

In the meantime, McCaw said, he wants the tribe’s reserved sustenance fishing rights to the Penobscot River to be recognized.

“The tribe is unable to exercise those treaty reserve fishing rights, because we have a system that is still clogged with hydro dams that are delaying, injuring and killing fish by the millions every year,” he said.

Funding from the bipartisan infrastructure law dedicated to fish passage projects could benefit Atlantic salmon in the Penobscot and Kennebec rivers. The Penobscot Nation was allocated $3 million to eliminate five culvert and dam barriers on the river’s east branch (Greenwire, Dec. 15, 2022).

While that funding won’t impact Milford directly, McCaw said he is hopeful that millions of dollars of investments upstream would influence NOAA to dedicate funding to rehabbing Milford.

The groups haven’t yet filed a lawsuit against Brookfield, though they are considering legal action, Bennett said. “Given our history with Brookfield, they aren’t going to do that without being forced to,” Bennett said. “[NOAA Fisheries] needs to do its job and enforce the ESA. They have not been doing that.”

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