On 9/29/2022, the Federal Energy Regulatory Commission (FERC), Washington D.C., issued this document:

Docket(s):  P-12514-090

Lead Applicant: Northern Indiana Public Service Company

Filing Type:  Delegated Order

Description:  Order Approving Temporary Amendment re Northern Indiana Public Service Company, LLC under P-12514. 

For more information and to view the full document for this Issuance, click here: https://elibrary.ferc.gov/eLibrary/filelist?accession_num=20220929-3010

Excerpt from Order Approving Temporary Amendment:

Licensee’s Request

  1. On August 26, 2022, following successful negotiations with FWS and the Conservation Commission, NIPSCO filed a request to amend Article 403 of the license to better define Abnormal Low Flow conditions at Lake Freeman, revise the approved Project Operation and Compliance Plan to reflect the changes to the definition, and void the RPM and the Technical Assistance Letter from the FWS’s July 5, 2017, BO. Because of the current threat of impending low-flow conditions at the project, the licensee requested expedited approval of the amendment.
  2. In short, the definition of “abnormal river conditions” would be changed to a 24-hour daily average flow of ≤ 260 cfs from 300 cfs at the NIPSCO Buffalo gage; a 24-hour daily average of river flow requirement of ≤ 190 cfs would be added as measured at the USGS Winamac gage; and in the event of an equipment or operation issue at Oakdale unrelated to weather conditions upstream, a 24-hour daily average of river flow would be changed to ≤360 cfs instead of the previous 570 cfs at the USGS Oakdale gage.
  3. The licensee, FWS, and the Conservation Corporation mutually agreed to several adjustments in the procedure outlined in the Technical Assistance Letter that would become a section of the Operations and Compliance Plan titled Abnormal Low Flow Plan (Low Flow Plan), as follows:
ParameterExisting Requirement Under 2017 BO RPMRevised Requirement
Onset of ALF event, U.S. Geological Survey (USGS) Buffalo Gage24-hour daily average of    ≤ 410 cfs24-hour daily average of    ≤ 260 cfs
Onset of an ALF event, USGS Winamac Gage24-hour daily average of    ≤ 300 cfs24-hour daily average of    ≤ 190 cfs
Onset of an ALF event, USGS Oakdale Gage24-hour daily average of    ≤ 500 cfs24-hour daily average of    ≤ 315 cfs
  1. The Low Flow Plan is designed to maintain higher reservoir levels on Lake Freeman during low flow conditions, while also providing sufficient flows downstream to protect ESA-listed mussels. In addition, the ALF Plan includes measures for the initiation and close of low flow events, protocols for implementing Low Flow Plan requirements, specific measures for complying with the plan, procedures for addressing malfunctioning gates, and monitoring and reporting requirements.
  2. The amendment request also includes proposed changes to the approved Project Operation and Compliance Plan. These changes reflect the addition of the new plan with procedures for the initiation and close of plan protocols, implementation of protocols, compliance requirements, specified circumstances outside NIPSCO’s control, malfunctioning gages, monitoring, and reporting.
    Consultation on Application
  3. The licensee developed its proposal in consultation with FWS and the Conservation Corporation. By email dated August 25, 2022, FWS provided concurrence on the proposed amendment. By email dated August 24, 2022, the Conservation Corporation also expressed concurrence with the proposal.
    II. Public Notice
  4. On September 8, 2022, Commission staff issued a 30-day public notice period regarding the licensee’s amendment request. The comment period ends on October 10, 2022.
    III. Revised Biological Opinion
  5. On September 8, 2022, Commission staff requested the reinitiation of formal ESA consultation with the FWS for the proposed amendment, including a Biological Assessment (BA) in the consultation package. Commission staff concluded that the proposed action, including the implementation of the conservation measures in the BA, may affect and is likely to adversely affect clubshell mussel, fanshell mussel, and sheepnose mussel. According to the BA, the proposed action, including the implementation of the conservation measures, may affect but is unlikely to adversely affect rayed bean and snuffbox mussels because there is no evidence that they are currently present in the affected section of the Tippecanoe River. Finally, the BA concluded that the proposed action, including the implementation of the conservation measures, may affect and is likely to adversely affect rabbitsfoot mussel; however, it is unlikely to cause adverse modification of the species’ critical habitat.
  6. On September 14, 2022, FWS issued a new BO. The FWS concurred that the amendment is likely to adversely affect the clubshell, fanshell, rabbitsfoot, sheepnose, and rabbitsfoot critical habitat. The BO provides an effects and jeopardy analysis based upon anticipated incidental take, as a result of this project. FWS determined that this project is not likely to jeopardize the continued existence of the clubshell, fanshell, rabbitsfoot, and sheepnose mussels or adversely modify rabbitsfoot critical habitat.
  7. The biological opinion includes an incidental take statement, with two RPMs to avoid or minimize incidental take, and six terms and conditions to implement those measures. The first RPM requires that the Commission condition the license to provide that the project will operate as designed, planned, and documented in the BA and the BO. RPM number two requires NIPSCO to implement the project operation plan as described in the BA and the BO. The terms and conditions are: 1) the Commission shall ensure that the project will operate as designed, planned, and documented in the BA and the BO; 2) the licensee will cease power generation at Oakdale dam during abnormal low flow events; 3) water from the Oakdale dam shall be released to match run-of-river conditions during abnormal low flow events; 4) spikes below 315 cfs shall be avoided from Oakdale dam during normal flow periods; 5) the licensee shall monitor Buffalo and Oakdale gages daily and follow procedures for malfunctioning gages; and 6) the licensee shall report individual abnormal low flow events as they occur and submit an annual report.
  8. As discussed below, the modified incidental take statement, reasonable and prudent measures, and terms and conditions are incorporated into the license by ordering paragraph (D) and are attached to this order as Appendix A.
    IV. Discussion and Conclusion
  9. The licensee requests Commission approval of the amendment before September 30, 2022, to conserve exceptionally low and diminishing water storage in Lake Freeman and avoid the risk of triggering the existing low flow protocols and negatively affecting recreation at the lake. The licensee states that the proposed amendment, with the additional RPMs and terms and conditions from the September 2022 BO, would also help prevent take of federally listed mussels at the project.
  10. Commission staff previously analyzed the changes proposed in this amendment application in the November 2016 final EA. As part of its analysis, Commission staff evaluated a reservoir refill reconnaissance level survey conducted on August 3, 2005, to evaluate the impact of the proposed discharge flows during reservoir refill at the Norway and Oakdale reservoirs under abnormal low-flow conditions. The flows downstream of Oakdale dam were between 357 and 200 cfs. The results of the survey indicated that flow releases as low as 200 cfs did not cause substantial losses of fisheries or mussel resources in the tailwater areas directly downstream of Oakdale dam. Since the proposed Low Flow Plan would not result in flows lower than 200 cfs, staff’s analysis necessarily evaluated the lesser cfs quantities proposed in this application. The same holds true for flow amounts that trigger the end of abnormal-low flow events.
  11. In summary, approval of the licensee’s amendment request would conserve limited water resources in Lake Freeman and protect threatened mussels in the Tippecanoe River. Given the diminishing water storage, support from the resource agencies and stakeholders, and in the interest of protecting environmental resources, the licensee’s request should be approved. However, in order to allow time for the public to review and comment on the licensee’s proposal, and for to Commission to evaluate the amendment proposal in light of any comments filed, the amendment is approved for a limited period.
  12. With this approval, the licensee may modify the Low Flow Conditions at the project through December 31, 2022. This time frame will allow for a 30-day comment period and any necessary additional review. The Commission will then issue a final order on the amendment request.
    The Director orders:
    (A) Northern Indiana Public Service Company, LLC, licensee for the Norway-Oakdale Hydroelectric Project No. 12514, is authorized to modify the definition of Abnormal Low Flow conditions and the Project Operation and Compliance Plan, as requested on August 26, 2022, through December 31, 2022.