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.