During implementation of Federal Energy Regulatory Commission license requirements for fish passage at a 700-kW hydropower project in Wisconsin, stakeholders had to resolve a number of controversies with regard to balancing invasive species risk with improving habitat connectivity.
By Douglas Cox, Pete Haug and Luther Aadland
The arrival of dams and river controls around 1890 ended 10,000 years of sturgeon migration to the upper Wolf River, and spawning access to the upper river’s rocky shoals was denied to those fish blocked by dams. Re-establishing a lake sturgeon population in the upper reaches of Wisconsin’s Wolf River is a long-standing objective of state and federal resource agencies, as well as the Menominee Indian Tribe of Wisconsin. Lake sturgeon historically have been central to the Menominee and their way of life, and the Wolf River provided excellent spawning grounds for this prehistoric fish.
The 700-kW Shawano Project is licensed as Federal Energy Regulatory Commission (FERC) P-710, but the dam is referred to as Balsam Row Dam by the regulatory agencies and dam owner/licensee (Wolf River Hydro Limited Partnership of Thunder Bay, Ontario) to avoid name confusion with the downstream Shawano Paper Mills Dam (FERC P-8015). Balsam Row Dam was designed in 1926 for hydroelectric generation to provide electricity to Shawano, Wis., and today this dam is one of two remaining man-made barriers to sturgeon migrating from the Lake Winnebago system to spawn upstream on tribal lands. The settlement agreement for relicensing this project with the FERC – into which the Menominee Indian Tribe entered in consultation with the Bureau of Indian Affairs (BIA) and the U.S. Fish and Wildlife Service (FWS) – stipulated the inclusion of upstream fish passage. The Wisconsin Department of Natural Resources (DNR) was involved in discussions about fish passage at this site but was not a signatory to the settlement agreement.
When the 1997 FERC license and 2006 settlement agreement were signed, the hydropower licensee agreed to provide fish passage. As part of the agreement, DNR and FWS concurred that fish passage was in the interest of the state and federal environmental goals, so the FERC license was made contingent upon such fish passage being constructed by 2020. This article describes how the various stakeholder positions on fish passage at Wisconsin dams have evolved since the 2006 settlement agreement, and explores the implications of the present agency positions.
Disagreements on fish passage objectives and methods
The DNR began to trap 10 to 20 Lake Winnebago sturgeon and truck them around the dams in 1995 as they had agreed to through the Menominee Reservation Lake Sturgeon Management Plan, and the Menominee were thankful to see sturgeon return to their land for the first time in a century. Since the settlement agreement in 2006, the DNR has transported 100 to 160 sturgeon around the dams each year. However, the current trap and transport method randomly collects sturgeon from a functionally different ecosystem (a 215-square-mile lake), and the transported fish do not seem content with staying upstream of the dam. In fact, the vast majority of transported sturgeon go back downstream through the dam within a year. Biologists admit that seasonal movements for sturgeon are not understood, but upon reaching 15 to 30 years of age they do spawn upriver (though only once every four to nine years) on gravelly shoals and rapids while spending many other years in the larger lake downstream. Based on recent location tracking results, some sturgeon reside in a small area for many months while others can travel miles up or down river throughout the year. In May 2015 the DNR presented to the Midwest Hydro Users Group a study on the Wolf River trap and sort program that concluded only 4% to 22% of all trapped and transported sturgeon stayed where they were transported; a dismally high (78% to 96%) percentage of transported sturgeon travel back downriver through the dams and are prevented from migrating upstream again. Between 53 and 81 percent of all sturgeon collected from Lake Winnebago and transported above the dams have migrated back downstream to Lake Winnebago.1
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| 700-kW Balsam Row hydroelectric project and dam |
Based on his experience with the Minnesota Stream Habitat program and dozens of successful nature-like fishway implementations, Luther Aadland, PhD, thinks a free flowing (no integral trap and sort facility) fishway provides the best performance in terms of fish passage counts and ability to allow fish to travel to the river reach and meet survival objectives, relative to other transfer methods. By allowing a free-flowing fishway, the design team and Menominee advocated that fish could travel upstream and downstream in accordance with each fish’s biological drive for migration. Free-flowing nature-like fishways are not new, and Aadland has designed more than 30 of these to restore habitat connectivity around dams. The Menominee Tribe understood that unrestricted fish passage at Balsam Row was the first step to restoring habitat connectivity and furthering a sustainable population (able to reproduce at historically harvestable levels without continued importation of transported fish), not just for sturgeon but for all riverine species that contribute to the Wolf River ecosystem.
In 2009, the Menominee saw a free-flowing fishway approved by the DNR and FERC at Winter Dam. The Winter Dam project was constructed in 2011 and served as a great example of what could be done at Balsam Row to improve fish passage. In February 2015, the Balsam Row licensee informed FERC that all parties had agreed upon passing all species of fish in the river, and Ayres Associates was hired to complete the final design and address any remaining dam safety concerns.
State code confusion for restoring fish passage
A conceptual design for a nature-like fishway was completed in early 2015, but the DNR began voicing opposition to unrestricted fish passage in May 2015. To understand the complexity and tumult of stakeholder discussions during this period, it is important to first understand the limitations of each party’s authority. Because of their federally-protected autonomy, the Menominee do not have to comply with any DNR mandates within tribal boundaries, but Balsam Row Dam was built just 1.8 miles below the boundary of tribal lands. The dam impounds water onto the Menominee land, but the first 1.8 miles of the reservoir is under state authority. Perhaps the greatest debate on this fish passage restoration goal is whether the Menominee have a right to control fish access to 25 miles of river through tribal lands or if the state’s concerns over management of the 1.8 miles of water between the proposed fishway and tribal lands is sufficient to continue an impasse to fulfilling the settlement agreement intent. The design paradox of Balsam Row Dam can be summarized as: The Menominee need state permission to fund and complete construction modifications to the dam, but noting the federal license and settlement agreements for this dam, the Menominee argue that state codes are being used to unreasonably restrict fish passage to tribal lands (which are governed by federal turst responsibilities granted through treaty).
Sometime before May 2015, the DNR began to re-evaluate its historical promotion of habitat connectivity based on an apparent goal of protecting sport fisheries from aquatic invasive species, but state codes may not grant the DNR authority to limit natural fish passage at Balsam Row Dam (i.e., Wisconsin State Statutes Chapter NR 40 defines aquatic invasive species and restricts handling and transporting such species, but the code does not explicitly prohibit the natural passage of fish upriver). In 2006, the DNR discovered viral hemorrhagic septicemia (VHS) downstream of the Wolf River in Lake Winnebago, although as of 2012 the virus had not spread very widely in Wisconsin.2 Michigan State University studies and even the Wisconsin DNR’s website conclude that VHS affects warm water fish more than cold water fish. As no VHS has been found below Balsam Row Dam nor in the upper spring-fed reaches of the Wolf River, the design team believed that colder waters in the upper Wolf River provide fish with a natural resistance against VHS spread.
During the time DNR was changing policy direction with regard to unrestricted fish passage, the design team submitted plans for a full-length nature-like fishway, similar to the one approved by DNR and constructed in 2011 at Winter Dam. The proposed nature-like fishway included pools and riffles along a curving alignment near Balsam Row’s left embankment end. As with Winter Dam, the Balsam Row fishway was to include a head gate for flood control, sheet pile cutoff walls for seepage control and a box culvert to allow the licensee continued access for dam inspections, powerhouse maintenance and spillway gate operations. The project cost was initially estimated at US$600,000. After this design submittal, the DNR informed the Tribe and the Balsam Row licensee that it would no longer approve unlimited fish passage around the dam.
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| This rendering shows the proposed nature-like fishway with a trap and sort facility at the upstream end. |
As justification for the change in fish passage position, the DNR cited the State Administrative Code for the Department of Agriculture, Trade, and Consumer Protection (ATCP). ATCP 10.60 regulates fish farms and the mechanical transport of fish. Section 10.63 requires a veterinary health certificate for introducing fish into waters of the state, and section 10.655 exempts fish reintroduced to their original wild source. Interpreting the ATCP Section 10 codes, the DNR mandated that a veterinarian must inspect all fish and aquatic organisms passing through Balsam Row Dam. Although the state veterinarian at ATCP clarified his Department’s code intent in a September 2015 letter to the Menominee as “not applicable” if the fish were not handled or trapped at Balsam Row Dam, the DNR continued to cite the code during 2015 and 2016 meetings with the Balsam Row design team. Interpreting the code to mean that no natural fish passage could be restarted where there was “potential for aquatic invasive species,” the DNR pointed to the population of common carp – considered an invasive species – present below Balsam Row Dam.
Clearly, the Balsam Row decision was circular: the state-required trap and sort facility forced handling of all fish, which forced implementation of ATCP veterinary health certificates for each fish passed, and thus justified the need for a trap and sort facility. Yet, according to ATCP’s interpretation of its rules, had no trap been built, no health certificate would be required for naturally passing fish.
Based on verbal feedback during consensus-building meetings for Balsam Row Dam, the DNR case for restricting fish passage based on NR 40 and ATCP codes was not convincing to stakeholders outside the DNR. The Menominee Tribe leaders went to the state Capitol in 2015 to request the DNR Secretary intervene and counter the DNR’s regional office position, but to no avail. State restrictions on fish passage through dams are new to Wisconsin, and the idea of state restrictions on fish passage affecting tribal territory is certainly new to the MenomineeTribe. FWS representatives offered ideas on fishway designs that allowed trapping and sampling (e.g., fyke nets to allow dip netting in defined pool areas), but still allowed free passage. Other meeting participants suggested that the invasive (really more of a nuisance species) carp could be dip netted from the fishway pools without the need for a full trap, and proposed fishway closures during seasons when VHS-susceptible species were more apt to migrate. Consensus is difficult to reach when regulatory agencies and stakeholders cannot interpret the same code in the same manner.
Working toward consensus
Regardless of the changes to state policy, fish passage through Balsam Row Dam was a prior agency and licensee commitment and an officially stated goal for all parties. Even the DNR admitted that fish passage through the dam was a good idea, but the agency wanted a complete fish passage barrier that included a facility for examining and sorting fish so diseases and aquatic invasive species could not be passed upstream. Consensus on how to achieve the fish passage goal through use of a trap and sort facility was difficult to achieve.
As consultation proceeded between the stakeholders and Menominee, it became clear that between the agencies and even within those agencies (DNR’s many divisions especially), there is little consensus on balancing effective fish passage and concerns about disease and invasive species. In some instances, the privately voiced opinions of agency staff were not the same as the publicly presented position. Group discussions were often heated as third parties to the settlement agreement (Sturgeon for Tomorrow, River Alliance and similar groups) interjected support for and opposition to stakeholder proposals.
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| Shown at left is the nature-like fishway constructed at Winter Dam in 2011. |
Some stakeholders believed the Menominee should be satisfied with the 120 or so fish per year from continued trap and transport, given that the process of trapping, holding and handling sturgeon would compromise the fishway’s ability to pass large numbers of fish, especially if the facility was only intermittently operated. Clearly, whether in receiving 120 sturgeons (blindly collected) through trap and transport or expecting more (but willingly migrating) sturgeon passing through an intermittently operated trap and sort facility, the Menominee believed the 2006 settlement agreement intent of “fish passage” meant something far broader in scope and performance expectations.
After several months of stakeholder discussion and debate, the DNR’s position regarding the fish barrier and sorting requirement was unchanged. Accordingly, the design team abandoned the original nature-like fishway in favor of a full fish processing facility that included a holding tank, picket lead guide wall, fyke net, diversion screens, stoplogs, jib cranes with fish hoists, waste lines, overhead lights, underwater fish cameras and walkways to reach the various fish handling platforms. While the overall goal of providing some fish passage option through Balsam Row Dam was achieved, the new design would cost the Menominee an extra $900,000 to construct, more than doubling the originally estimated $600,000 cost, and would pass significantly fewer fish than the settlement agreement intended. Indeed, most stakeholders agreed that the price per fish passed would be much more for the trap and sort facility than just continuing the existing trap and transport program.
Implications for future habitat connectivity projects
During meetings for the Balsam Row project, the DNR also stated its intention to apply this mandate to all future riverine projects across Wisconsin. The logical conclusion is that no new fishways can be built without trap and sort facilities, no dams can be removed without leaving a fish barrier and no culverts can be modified to create new habitat connectivity (unrestricted aquatic organism passage). Hydropower project owners should recognize two activities that at least in Wisconsin will be much more uncertain in the future: Fish passage restoration and dam removals.
License and settlement agreements not yet implemented may require much more project funding to install sorting facilities where a simpler fish passage improvement was previously agreed upon. Dam removals, which already face high costs and legal uncertainties, may now face a new requirement to leave something in place that prevents fish passage. (One wonders how the owner of the “removed dam” can be relieved of liability for future maintenance if a fish barrier must remain. On the other hand, dam owners that agreed upon license conditions to install fish passage may now be relieved of such prescriptions.) Riverine designers should likewise realize that such a wide policy restriction also casts doubt on permit approvals for future culvert and related habitat connectivity improvements.
Non-governmental organizations sometimes advocate for measures that are at odds with state and federal resource agencies’ policies. However, competing philosophies between state and federal natural resource management agencies – DNR sport fishery staff restricting fish passage improvements while FWS and BIA support habitat connectivity – pose new challenges to the permitting processes for fishways, dam removals and other in-stream improvements. While some of these disagreements were thought to be resolved during the license settlement agreement process, other issues may arise during the license period and create friction between the agency positions.
The Balsam Row project raised awareness of competing environmental goals leading to unexpected outcomes. Unrestricted habitat connectivity – a biological resource rallying cry in the previous decade – now seems categorically opposed by the DNR’s restriction on future fish passage. Restoring natural ecosystems and historic habitat range, once the fundamental goal for river restoration advocates, has given way to insistence that wild fish populations be artificially protected from even remote threats of invasive species. The Balsam Row consultations reached an impasse as DNR held to its position that the habitat of the upper Wolf River could not be reconnected (regardless of the Menominee’s federally protected rights for control of tribal land and FERC license agreement) and that the State could control even the remotest chance of VHS spread simply by preventing all future natural fish passage options. Today, the Menominee are seeking additional grants and funding partners to cover the increase between the original project ($600,000) and current design ($1.5 million).
Notes
1 http://dnr.wi.gov/topic/fishing/documents/outreach/InformalMeetingsBalsamRowLicenseOct2016.pdf.
2 http://dnr.wi.gov/topic/Fishing/vhs/index.html.
Douglas Cox is environmental program coordinator with the Menominee Indian Tribe of Wisconsin. Pete Haug is a project manager and water resources engineer for Ayres Associates. Luther Aadland, PhD, is a river restoration consultant.
