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PUBLIC VERSION UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION McCallum Enterprises I, Limited Partnership
Project No. 6066-031
REQUEST FOR REHEARING AND MOTION REQUESTING DEFERRAL OF ACTION OF McCALLUM ENTERPRISES I, LIMITED PARTNERSHIP Pursuant to Section 313(a) of the Federal Power Act ("FPA"), 16 U.S.C. § 825l(a) (2006 Supp.), and Rules 212 and 713 of the Federal Energy Regulatory Commission's Rules of Practice and Procedure, 18 C.F.R. §§ 385.212 and 385.713 (2008), McCallum Enterprises I, Limited Partnership ("McCallum" or "Licensee") hereby requests further rehearing of the Commission's November 20, 2008 Order Granting Rehearing in the above-referenced proceeding ("November 20 Order"),1 and moves the Commission to defer action on a fence constructed by McCallum in compliance with its initial order.2 McCallum requested authorization to replace an existing recreation/fishing location that is more dangerous and less convenient with a new recreation/fishing location that is safer and more convenient.
On September 3, 2008, the Commission initially approved McCallum's
request;3 then, in response to the arguments of the State of Connecticut Department of
1
McCallum Enterprises I, Limited Partnership, 125 FERC ¶ 61,194 (2008) ("November 20 Order"). Rehearing lies because the November 20 Order significantly modified the previous order and deprived McCallum of relief granted in the previous order. See Municipal Electric Ass'n of New York v. Power Authority of the State of New York, 23 FERC ¶ 61,302 at 61,640 (1983); Southwestern Public Service Co., 65 FERC ¶ 61,088 (1993). 2
McCallum Enterprises I, Limited Partnership, 124 FERC ¶ 62,166 (2008) ("September 3
Order"). 3
Id.
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Project No. 6066-031 McCallum Request for Rehearing
Environmental Protection ("CDEP"), the November 20 Order reversed the September 3 Order. McCallum now seeks a return to the Commission's authorization granted in the September 3 Order. For the significant safety and recreational reasons discussed below, the Commission should grant rehearing of the November 20 Order's decision to deny McCallum's application to relocate the existing unsafe and inconvenient fishing and canoe portage area and should approve McCallum's request to use a safer and more convenient and readily accessible fishing location. In addition, as explained below, McCallum, in good faith and after coordinating with the New York Regional Engineer, has constructed a safety fence pursuant to the September 3 Order. McCallum requests that the Commission defer any action on this safety fence until it acts on this rehearing petition. I. BACKGROUND McCallum is the licensee for the Derby Dam Hydroelectric Project ("Project") on the Housatonic River in the cities of Shelton and Derby, Connecticut.4 The Recreation and Safety Plan for the Project provides for fishing and canoe access on both sides of the river below the dam.5 The fishing area at issue here is currently located along the right bank of the river, on the City of Shelton side, approximately 250 feet downstream of the dam, and consists of a rocky platform at the bottom of wooden staircase.6 Also along the right bank of the river lies a 2,200-
4
Eveready Machinery Company, Inc., Order Issuing License (Major), 34 FERC ¶ 62,578 (1986).
5
See Lacasse Affidavit at P 2. See also Exhibit 2 to Lacasse Affidavit (photos showing the existing fishing site). 6
Lacasse Affidavit at PP 2-3.
2
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Project No. 6066-031 McCallum Request for Rehearing foot long, 80-foot-wide industrial canal extending downstream from the dam.7 On the opposite side of the river (i.e., the City of Derby side), there is an additional boat launch and fishing location.8 The Derby side fishing and boat launch are the primary fishing and recreational locations at the project.9 McCallum does not propose to change any recreation on the Derby side of the river. The dispute in this proceeding involves only the secondary recreation on the Shelton side of the river, in particular, the proposed relocation of a relatively unpopular, inconvenient, and unsafe fishing site to an area that will be more popular, more convenient and safer. On March 14, 2008, McCallum filed an application ("Application") with the Commission to amend its Recreation and Public Safety Plan, in order to relocate the existing fishing area on the City of Shelton side of the river to an area 965 feet further downstream.10 McCallum cited a number of safety reasons for the relocation, including the following: (1) moving the fishing area further downstream would limit the public's need to walk past the industrial canal, which has proven to be a safety hazard; and (2) more importantly, moving the fishing area further downstream from the Project would limit exposure by fishermen and canoeists to the Project's restricted security gate, main generator, and tailrace, which puts out 4,600 cubic feet (or 43,000 gallons) of water per second.11 By seeking to relocate the fishing site, McCallum sought to
7
Id. at P 3.
8
Id. at P 6.
9
Id. at PP 6-7.
10
Application at 1. See also Exhibit 3 to Lacasse Affidavit (photos showing the proposed new
11
Application at 1. See also Lacasse Affidavit at P 11.
site).
3
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Project No. 6066-031 McCallum Request for Rehearing
improve safety and provide a more convenient and secure location for the public's recreational use. The Commission initially approved McCallum's Application in the September 3 Order. There, the Commission concluded that the proposed new site would be safer and would provide the same recreational opportunities as the present site, and that the request to relocate the portage site was consistent with Article 32 of the License.12 On October 2, 2008, the CDEP filed a request for rehearing.13 CDEP argued that the relocation was unnecessary and would be detrimental to the goal of providing meaningful recreational opportunities to the public.14 In the November 20 Order, the Commission granted CDEP's requested rehearing and denied McCallum's request to amend its Recreation and Public Safety Plan. In the November 20 Order, the Commission determined that McCallum had not shown sufficient evidence to support relocating the area or that the new site will provide the same recreational opportunities as the existing site.15 As explained below, the November 20 Order is in error. It is based on a CDEP pleading that is factually incorrect and reflects a misunderstanding of the facts and circumstances surrounding the Derby Project. The Commission should therefore reverse the November 20 Order and grant McCallum's request to modify the Project Recreation and Public Safety Plan.
12
September 3 Order at 64,448.
13
State of Connecticut, Department of Environmental Protection, Request for Rehearing, filed in Project No. 6066-031 (Oct. 2, 2008) ("CDEP Rehearing Request"). 14
Id.
15
November 20 Order at P 8.
4
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Project No. 6066-031 McCallum Request for Rehearing
McCallum supports this rehearing request with three affidavits under oath:
(i) an
affidavit by McCallum's Operations Manager Carol Lacasse, who has substantial hands-on experience with the Project ("Lacasse Affidavit"); (ii) an affidavit from Andrew Hernandez, fulltime Plant Operator of the Derby Dam Project ("Hernandez Affidavit"); and (iii) a sworn affidavit in the form of a letter by Brandon Kulik, a senior fisheries biologist at Kleinschmidt Associates ("Kulik Affidavit").16
These affidavits respond to and contradict the erroneous
factual statements contained in CDEP's Rehearing Request. II. STATEMENT OF ISSUE AND SPECIFICATION OF ERROR Pursuant to Rule 713(c) of the Commission's Rules of Practice and Procedure, 18 C.F.R. § 385.713(c), McCallum respectfully states the following issue and specifies the following error in the Commission's Rehearing Order: 1.
Issue: Whether the Commission erred by granting CDEP's Rehearing Request and denying McCallum's Application to amend the Project Recreation and Public Safety Plan. Error: Yes, the Commission erred by denying McCallum's Application to amend the Project Recreation and Public Safety Plan by relocating the fishing area downstream of the Project. Specifically, the Commission erred by relying on CDEP's inaccurate factual assertions to reverse the Commission's original approval of McCallum's proposal to relocate the fishing area. See Union Oil Co.
16
McCallum recognizes that the Commission does not favor the introduction of evidence in a rehearing petition, and that a request for rehearing is not the place to introduce additional evidence absent a showing of good cause. See, e.g., Nevada Power Co., 111 FERC ¶ 61,111 at P 10 (2005). Good cause exists to accept McCallum's evidence, however, because this evidence serves to correct erroneous assertions made by the CDEP, and because the Commission has already accepted CDEP's evidence, which itself was first offered in an unsworn affidavit embedded in CDEP's request for rehearing.
5
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Project No. 6066-031 McCallum Request for Rehearing
v. FPC, 542 F.2d 1036, 1042 (9th Cir. 1976) (the "factual premises upon which" the agency's policy judgment rests must be "supported by substantial evidence . . ." and must be reversed when the "factual determination . . . is not supported by any evidence, much less than by substantial evidence"). See also Knott v. FERC, 386 F.3d 368, 371-372 (1st Cir. 2004), citing Northeast Utils. Serv. Co. v. FERC, 993 F.2d 937, 944 (1st Cir. 1993) ("We 'defer to the agency's expertise . . . so long as its decision is supported by 'substantial evidence' in the record and reached by 'reasoned decisionmaking,' including an examination of the relevant data and a reasoned explanation supported by a stated connection between the facts found and the choice made"). III. REQUEST FOR REHEARING McCallum respectfully requests that the Commission grant rehearing of its November 20 Order and amend the Project Recreation and Public Safety Plan in order to relocate the existing fishing and canoe portage area to further downstream. Relocating the existing fishing and portage area will provide significant benefits from both public safety and accessibility perspectives, and will be required in any event once McCallum completes installation of the required fishway in 2009-2010.
6
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Project No. 6066-031 McCallum Request for Rehearing
A. The Proposed Fishing Area Will Be Safer, More Accessible, and More Environmentally Friendly than the Existing Area, and Will Provide Better Fishing than the Existing Area The proposed new fishing area offers four distinct benefits over the existing portage area. First, the new fishing area will be significantly safer than the existing area. The existing area is located just 150 feet away from the Project's tailrace,17 which puts out 4,600 cubic feet (or 43,000 gallons) of water per second.18 As described in the attached Lacasse Affidavit, the proposed new area will be significantly safer, as it will be located further from the tailrace.19 The river's current at the new site is significantly slower than at the existing site. The comments contained in CDEP's Rehearing Request, which were apparently relied upon by the Commission in its Rehearing Order, are factually incorrect and misleading in this regard. CDEP's comments stated that the existing fishing site is "safer for anglers . . ., because the flow is less turbulent than the river downstream."20 As can be seen in pictures attached as Exhibits 2 and 3 to the Lacasse Affidavit and in the Kulik Affidavit, this assertion is plainly
17
Kulik Affidavit at 4.
18
Lacasse Affidavit at P 11.
19
Id. See also Exhibit 1 Public and Exhibit 1 CEII attached to the Lacasse Affidavit (both maps showing the location of the existing and new fishing sites). Exhibit 1 CEII contains greater detail and is protected Critical Energy Infrastructure Information (CEII). 20
CDEP Rehearing Request at 3 (comments of Bob Orciari).
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Project No. 6066-031 McCallum Request for Rehearing inaccurate.21 Moreover, the Commission has amended other licensees' recreation plans to locate public access areas away from areas with high water velocity.22 The November 20 Order errs when it appears to adopt CDEP's statement that the licensee can address these safety issues by use of signage and fencing along the canal and tailrace area.23 This discounts the fact that fencing the canal and tailrace would require fencing both sides of a 1000 foot canal, a substantial expense. Article 18 of the License imposes on McCallum the obligation and responsibility to protect health life and safety.24 McCallum has sought to do so in the most cost effective way. These safety concerns will take on even greater significance as the City of Shelton develops the industrial property at the south end of the canal into a high-density residential property.25 Such development will increase the number of people, including children, in the area, and will make it even more imperative that McCallum, as the Project Licensee, ensure the safety of the industrial canal and the fishing area. In response to the November 20 Order's
21
See Lacasse Affidavit, Exhibit 2 and Exhibit 3 (photos comparing the existing upstream and new downstream fishing sites); Kulik Affidavit at Photos 1 through 4 (also comparing existing fishing area and proposed new fishing area). 22
See, e.g., Eugene Water & Electric Board, 118 FERC ¶ 62,231 (2007). Moreover, there can be no dispute that high water velocity creates a greater safety issue. The Commission recognized as much in the November 20 Order. See November 20 Order at P 9, discussing the assertion that the Canal creates less of a safety risk because it has minimal current. 23
November 20 Order at P 11.
24
Article 18 provides that "the Licensee may reserve from public access such portions of the project waters, adjacent lands, and project facilities as may be necessary for the protection of life, health, and property." 25
See Lacasse Affidavit at P 14.
8
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Project No. 6066-031 McCallum Request for Rehearing
statement that any claim of new development was unsupported and speculative, McCallum provides the Lacasse Affidavit and supporting newspaper article.26 Second, in addition to these safety concerns, the new site is more convenient and more easily accessible to the public than the existing site.27 It is impossible for recreational users to access the existing site except by walking one-quarter mile along the industrial canal and past the proposed new site.28 Any contrary implication in the CDEP Rehearing Request is inaccurate. In contrast, the proposed new area is more easily accessible to the public. Public parking is available outside the gate, thus eliminating the quarter-mile trek down the dirt road that is required for the existing site. After entering the main gate, a fisherman would simply walk over a small bridge, turn right, and walk down a gradually descending path (made more accessible and convenient because of existing concrete steps) to the riverbank.29 Because of its greater convenience and desirability, the new location is currently used by anglers for fishing.30 Indeed, a large part of the reason why McCallum selected the proposed new fishing location is in response to the public's self-selection of that new location.31 Both the
26
Id. at P 14 & Exhibit 4 to Lacasse Affidavit (Connecticut Post article, dated November 16, 2008, describing a "massive Canal Street development project" that will bring hundreds of condominiums, as well as commercial and retail space, to the area). 27
See Lacasse Affidavit at PP 8-9; Kulik Affidavit at 2.
28
Kulik Affidavit at 4.
29
Lacasse Affidavit at P 8; Exhibit 3 to Lacasse Affidavit, which are a series of photos showing how convenient and easily accessible the proposed new site is. Compare these photos with the photos in Exhibit 2 attached to the Lacasse Affidavit, which show the relative inconvenience and inaccessibility of the existing site. 30
Lacasse Affidavit at P 10; Kulik Affidavit at 2.
31
Lacasse Affidavit at P 10.
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Project No. 6066-031 McCallum Request for Rehearing
project operator and plant manager regularly see people fishing at the proposed new location, but rarely see people fishing at the existing location.32 For the same reasons, the proposed new fishing area will be closer and more accessible to the new residential development described above. The greater accessibility of the proposed new site takes even more significance in the context of the canoe portage. No one has ever used the existing site as a canoe portage.33 This is understandable, as it would be very difficult to carry a canoe the quarter-mile along the industrial canal and descend down steep steps in order to drop in. On the other hand, the proposed new site is much more practical for canoe portage in addition to fishing, because of the gradual slope of the path down to the river and because of its proximity to public parking.34 Furthermore, as noted in the Kulik Affidavit, both the existing and proposed fishing areas are equally accessible by boat.35 Third, the currently planned installation of a fishway over the Derby Dam will require the existing fishing area to be moved in any event. As required by its License, McCallum plans to install a fishway over the Derby Dam in 2009-2010, and is presently engaged in negotiations regarding the fishway with the US Fish and Wildlife Service and Bureau of Natural Resources of
32
Id.; Hernandez Affidavit at P 1. In addition, anglers are regularly observed at the fishing location on the other (Derby) side of the river, which will not be affected by the proposed relocation of the fishing site on the Shelton side of the river. Hernandez Affidavit at P 1. 33
Hernandez Affidavit at P 1.
34
It is likely that most canoeing will continue to occur on the Derby side of the river. It is nonetheless feasible for canoeists to access the river from the proposed new location, whereas it is effectively impossible for canoeists to drop into the river at the existing location. Lacasse Affidavit at P 4. 35
Kulik Affidavit at 4.
10
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Project No. 6066-031 McCallum Request for Rehearing the CDEP.36 Connecticut state law expressly prohibits fishing within 250 feet of any fishway, unless CDEP permits otherwise.37 While the precise location of the fishway is still being negotiated and thus has not yet been determined, the fishway entrance will be located near the tailrace. The existing fishing area is only 150 feet from the tailrace and is considerably closer than the required 250 feet from where the fishway entrance will be.38 Thus, once the fishway is installed, state law will require the existing fishing area to be moved in any event. Even if Connecticut law did not require the existing fishing platform to be moved, from a fundamental environmental perspective, the existing fishing platform should still be relocated.39 Locating a fishing area near the entrance of a fishway undermines the basic purpose of the fishway, which is to protect fish.40 It makes little sense to install a fishway, and incur the considerable cost of doing so, only to allow anglers to fish in the precise area where fish enter that fishway.
36
Standard Article 15 of the License requires "reasonable" facilities and "reasonable modifications of the project structures" to accommodate fish passage over the dam. FERC Form L-4, 54 F.P.C. 1824, 1829-30 (1975). See Order Issuing License (Major), 34 FERC at 63,752 (incorporating FERC Form L-4 into the license). To comply with this requirement, McCallum has agreed to install a fish ladder over the dam. 37
Conn. Gen. Stat. § 26-137 (2008) ("No person shall take or attempt to take any fish, with the exception of lamprey eels during the open season for the same, within two hundred fifty feet of any fishway, except that the commissioner when he deems necessary may extend or reduce such distance and shall indicate such other distance by posting."). 38
Kulik Affidavit at 4.
39
Id.
40
Id. (the purpose of the state law is to "protect concentrations of migrating fish from being subjected to mortality by anglers.").
11
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Project No. 6066-031 McCallum Request for Rehearing
Fourth, and finally, CDEP asserted in its Rehearing Request, and the Commission apparently found, that the new proposed fishing area would be a less suitable area for angling.41 To the contrary, and as described in further detail in Mr. Kulik's Affidavit, the proposed new location will provide an "excellent habitat" for fish.42 The proposed new area may indeed provide better fishing than the existing area, which "lacks the degree of object or riparian cover . . . found at the lower site, and under some flow conditions may in fact provide poorer cover for fish such as trout and walleye than does the new site downstream."43 Mr. Kulik concludes that the "new downstream angling area will provide shoreline anglers continued access to a riverine area that possesses habitat that is highly attractive to game fish, and is unaffected by future fishway operation . . . ."44 Because the new location is safer, more convenient, and more desirable than the existing location, the Commission should reverse its apparent acceptance of CDEP's proposed valuation of recreation based totally on calculation of square footage. CDEP argues that the new location encompasses only approximately 0.15 acres, while the existing location involves nearly 1000 feet along the river and 1.5 acres of project lands. CDEP miscounts acreage. The existing fishing location is approximately 230 feet wide and narrow. There is no way that this existing fishing site can comprise 1.5 acres – unless one counts the walkway along the canal. But that
41
Rehearing Request at 2; Rehearing Order at P 7.
42
Kulik Affidavit at 2 ("The species of concern are well adapted to the riverine habitat conditions present throughout this tailwater. Our observation is that the range of depth and substrate conditions found throughout the tailwater (including the proposed downstream access area) all meet habitat suitability requirements for these species."). 43
Id. at 4.
44
Id.
12
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Project No. 6066-031 McCallum Request for Rehearing walkway is along an industrial canal and offers no fishing experience45 and indeed is not a meaningful recreation experience.46 The new fishing site is approximately 20 feet wide and is admittedly smaller than the existing site; but the difference in size between the two fishing sites is nowhere near as great as CDEP suggests. More importantly, as shown above and in the attached affidavits, the new location is far superior; and the Commission should not reject this superior location simply because it is smaller. B. The Commission Should Grant Rehearing and Amend the License to Allow the Relocation The Commission relied on inaccurate representations and unsupported assertions contained in CDEP's Rehearing Request in making its determination in the Rehearing Order to deny McCallum's Application.47 As courts have held, the Commission's decisions must be supported by substantial evidence.48 However, CDEP's assertions were incorrect to the extent they stated that the existing fishing area was safer for anglers because the river's flow is less turbulent there than it is downstream. And CDEP's implications that the existing location is more convenient than the proposed new location are simply wrong. The Commission should also grant rehearing because relocating the fishing area is the correct result from a public safety perspective. As the Commission has previously explained, it "takes very seriously its obligation to ensure the safety of dams that come within its jurisdiction
45
See id. (concluding that the canal is not appealing for fishing).
46
Lacasse Affidavit at P 5. See Exhibit 2 to Lacasse Affidavit (photos showing the existing site).
47
See Rehearing Order at PP 7-8.
48
See Union Oil Co. v. FPC, 542 F.2d 1036, 1042 (9th Cir. 1976) (remanding Commission orders where determinations rested on factual premises that were not supported by substantial evidence and were "simply wrong").
13
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Project No. 6066-031 McCallum Request for Rehearing to regulate hydroelectric projects."49 This obligation to ensure public safety extends to project operators as well.50 Moving the fishing area farther downstream and away from the high volume of water pouring out of the tailrace will provide a greater margin of safety between the public and the dangerous whitewater exiting the dam's tailrace.51 As noted above, the Commission has amended other licensees' recreation plans to locate public access areas away from areas with high water velocity and steep embankments.52 The Commission should take similar action here, and grant rehearing of its decision in the Rehearing Order to deny McCallum's request to relocate the existing fishing area further downstream. IV. MOTION FOR DEFERRAL In addition, pursuant to Rule 212 of the Commission's Rules of Practice and Procedure, McCallum moves the Commission to defer any action on the fence constructed by McCallum, pending its determination of this rehearing request. Subsequent to the Commission's original September 3 Order granting McCallum's Application, and after consulting with the Commission's New York Regional Engineer, McCallum constructed a fence along the lower edge of the canal, which provides safety and limits access to the canal and to the existing fishing 49
See Flambeau Paper Corp., 53 FERC ¶ 61,063 at 61,203 (1990) (assessing penalties against dam operator that had failed to provide the Commission with correct information regarding its hydroelectric project). 50
See, e.g., 18 C.F.R. § 5.18(c)(1)(ii)(B)(5) (requiring licensees to provide a statement of how they will ensure the safe project operation). See also License Article 18, a standard L-Form Article incorporated into McCallum's license, which addresses health and safety. 51
These safety concerns focus on proximity to the whitewater at the tailrace. In addition to these safety benefits, there will also be incremental safety benefits associated with eliminating the access to the canal. While the November 20 Order discusses the canal at length, and seems to give little weight to canal safety issues, see November 20 Order at PP 9-11, it cannot be denied that there is an incremental benefit to reducing public access to an open industrial body of water. 52
See, e.g., Eugene Water & Electric Board, 118 FERC ¶ 62,231.
14
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Project No. 6066-031 McCallum Request for Rehearing
site. The effect of the Rehearing Order would require McCallum to remove this fence and continue to allow access to the existing fishing area. Because McCallum is seeking rehearing of the Rehearing Order, McCallum requests that the Commission defer any action on the fence until it acts on the instant petition for rehearing. The unusual circumstances herein justify the Commission exercising its discretionary authority and deferring any action on the fence. Deferring action on this fence is in the public interest, and will impose no harm on other parties. While the fence does block access to the existing recreation site, it is rare that anyone uses the existing site. Moreover, it is now winter, the time of the year when fishing at the site will be even more rare. There is no harm to deferring any action on the fence while the Commission decided the merits of McCallum's appeal.
15
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Project No. 6066-031 McCallum Request for Rehearing V. CONCLUSION WHEREFORE, McCallum respectfully requests that the Commission grant rehearing and issue an order amending the Plan in order to relocate the fishing area as described above. McCallum also requests that the Commission defer action on the fence pending resolution of this rehearing. Respectfully submitted, /s/ John J. Bartus John J. Bartus Tracy C. Davis Bracewell & Giuliani LLP 2000 K St., NW, Suite 500 Washington, DC 20006 Tel: (202) 828-5800 Fax: (202) 223-1225 Email:
[email protected] [email protected] December 22, 2008
Counsel for McCallum Enterprises I, Limited Partnership
16
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CERTIFICATE OF SERVICE Pursuant to Rule 2010 of the Commission's Rules of Practice and Procedure, I hereby certify that I have served a copy of the foregoing pleading upon each person designated on the official service list compiled by the Secretary in this proceeding. Dated at Washington, D.C. this 22nd day of December 2008. /s/ Tracy C. Davis Tracy C. Davis
DC/249224
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HERNANDEZ AFFIDAVIT
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UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION McCallum Enterprises I, Limited Partnership
Project No. 6066-031
AFFIDAVIT OF ANDREW HERNANDEZ ON BEHALF OF McCALLUM ENTERPRISES I, LIMITED PARTNERSHIP 1.
I, Andrew Hernandez, full-time Plant Operator of the Derby Dam Project for the past 10 years, attest that during that period I have rarely encountered fisherman use the Fishing and Canoe Access Area on the right bank (Shelton) side of the project and have never seen anyone use this area for canoe portage.
Further affiant sayeth not.
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KULIK AFFIDAVIT
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Kulik Affidavit Project No. 6066-031
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Kulik Affidavit Project No. 6066-031
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Kulik Affidavit Project No. 6066-031
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Kulik Affidavit Project No. 6066-031
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Kulik Affidavit Project No. 6066-031
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Kulik Affidavit Project No. 6066-031
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Kulik Affidavit Project No. 6066-031
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Kulik Affidavit Project No. 6066-031
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LACASSE AFFIDAVIT
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UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION McCallum Enterprises I, Limited Partnership
Project No. 6066-031
AFFIDAVIT OF CAROL LACASSE ON BEHALF OF McCALLUM ENTERPRISES I, LIMITED PARTNERSHIP 1.
My name is Carol Lacasse. I am Operations Manager for McCallum Enterprises I, Limited Partnership ("McCallum").
McCallum is the licensee for the Derby Dam
Hydroelectric Project ("Project") on the Housatonic River in the cities of Shelton and Derby, Connecticut.
Description of Existing Derby Dam Fishing and Canoe Portage Area 2.
The Recreation Plan for the Derby Dam Project, developed during pre-licensing in 1987, provides fishing and canoe access to both sides of the river below the dam. The existing fishing area that McCallum proposes to relocate is on the right bank, on the City of Shelton side of the river. In addition, this fishing access area is approximately 50 feet from the Project's inner fence where its main generator is housed, an area that is closed to the public at all times for safety and security purposes.
3.
At this site, a fisherman wishing to access the fishing area has to park outside the main gate on Canal Street, walk over a small bridge and then proceed over one-quarter mile down a narrow dirt road along the open canal before arriving at the access point. Once there, he has to descend down steep wooden steps to the riverbed and a rocky platform, which is about 230 feet wide. See Exhibit 1 Public, which is a map submitted with
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Project No. 6066-031 Affidavit of Carol LaCasse
McCallum's March 14 application. This map shows the location of both the proposed new fishing site and the existing fishing site. As can be seen, the area marked "public parking" is a substantial distance (approximately one-quarter mile) from the existing site. See also Exhibit 1 CEII a more complete map that contains Critical Energy Infrastructure Information (CEII) and a legend that shows the location of the various features of the two fishing sites. Exhibit 1 CEII is an annotated version of the Exhibit F for the Derby Dam Project. 4.
There is no other access point to the canal along the long dirt road from the riverbank above. The only way to approach the fishing site is from the area marked on Exhibit 1 Public and Exhibit 1 CEII as "public parking."
5.
The narrow dirt road along the open canal is a walkway along an industrial canal. That walkway offers no meaningful recreation experience. I have rarely seen people walking along the canal for recreation purposes.
6.
As far as canoeing is concerned, during our many years of operation, we have never seen anyone use this location for canoe portage. This is understandable, as it would be a very difficult feat to carry a canoe all that distance and then down steep steps in order to drop in. See Exhibit 2, a series of photographs showing the existing fishing site. These photographs show the length of the walk along the canal and also show the limited accessibility of the steps to the existing fishing area.
7.
On the left bank of the river, on the City of Derby side, McCallum has leased land to the State of Connecticut, which contains public amenities including a large public parking area, an access road and fishing platform, all immediately adjacent to the dam. As
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operators of the project for over 20 years, our experience has shown that the fishing park on the City of Derby side of the Project is the favored location for local fisherman. 8.
Few people fish on the Shelton side. Our full-time plant operator, with the project for 10 years, has rarely seen fisherman use the fishing site on the City of Shelton side. In addition, I have been operations manager for some 13 years, and have regularly visited the project over those 13 years. Like the full time plant operator, I have rarely seen fisherman use the fishing site on the City of Shelton side. See Hernandez Affidavit
Proposed Relocation of Fishing and Canoe Portage Area 9.
The proposed change to the Recreation Plan would relocate the Shelton side fishing and canoe portage point to an area immediately adjacent to the main outer gate and historic boat lock. See Exhibit 1 Public and Exhibit 1 CEII, both maps which show the location of the new fishing site. Public parking is available outside the gate, thus eliminating the quarter-mile trek down the dirt road that is required in the original plan. After entering the main gate, a fisherman would simply walk over a small bridge, turn right, and walk down a gradually descending path to the riverbank.
See Exhibit 3, a series of
photographs showing the proposed new fishing site. These photographs show how much more convenient the new fishing site is. 10.
The proposed new site is also more practical for canoe portage because of its proximity to public parking; however, it is not likely to be used, as canoeists use the Derby Park for portage.
11.
This area was actually created by the public out of usage, a fact that was taken into consideration when proposing the relocation. See Exhibit 3, photos of the new site.
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12.
In addition, the proposed new area is far from the Project's restricted security gate, its main generator, and the 4,600 cfs flows from the tailrace, all of which mean that the new location will provide for a safer and more secure location.
13.
Based on our experience the proposed relocation of the fishing and canoe portage access point on the right bank of the project will not have a major impact on recreational opportunities on project lands, due to the fact, described above, that local fishermen and canoeists appear to use the fishing and canoe portage area on the City of Derby side of the Project.
14.
Fishing and canoe enthusiasts in the area of the Derby Project also have additional recreational resources available to them, including the Indian Wells State Park on the west shore of Lake Housatonic. The park provides for canoeing, fishing and other water sports. Also nearly is Osbornedale State Park providing additional recreational resources.
New Development on the City of Shelton Side of the Housatonic River 15.
The City of Shelton has begun developing a high-density housing project outside the main gate of the Project. This will bring hundreds of families, many with small children, to the area. See Exhibit 4, an article that appeared in the Connecticut Post on November 16, 2008, wherein the developer boosts that "the massive Canal Street development project," will bring hundreds of condominiums, as well as commercial and retail space to the area. See also Exhibit 1 CEII, which shows the location of the new housing
16.
With this change in population immediately outside the project main gate, I anticipate that the open canal that runs parallel to the river on the City of Shelton side will be dangerous to unsupervised children attempting to swim in the canal.
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Besides the
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potential for drowning, the water quality below the dam has been classified by the Connecticut Department of Environmental Protection as SC, "tidal influenced saline body, with waste receiving stream, not classified as swimmable or fishable."
(See
Application for License Derby Project #6066 dated May 17, 1982 citing CT DEP Class B Water Quality Standards dated 1977.) 17.
As responsible stewards of the Derby Project, McCallum does not want to wait for an injury or fatality to occur before initiating preventative measures.
The proposed
amendment to our Recreation Plan is not only more convenient and well-thought-out for recreational use, but also a prudent safety measure at this time.
Further affiant sayeth not.
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EXHIBIT 1 – PUBLIC attached to LACASSE AFFIDAVIT
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EXHIBIT 1 – CEII attached to LACASSE AFFIDAVIT (DELETED)
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EXHIBIT 2 attached to LACASSE AFFIDAVIT
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EXHIBIT 3 attached to LACASSE AFFIDAVIT
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EXHIBIT 4 attached to LACASSE AFFIDAVIT
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Lacasse Affidavit Exhibit 4 Project No. 6066-031
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Document Content(s) McCallum Req for Rehg 12-22-08 Public.PDF.............................1-52
