DOCKET NO. D CP-3 DELAWARE RIVER BASIN COMMISSION. Drainage Area to Special Protection Waters

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1 DOCKET NO. D CP-3 DELAWARE RIVER BASIN COMMISSION Drainage Area to Special Protection Waters Eagle Creek Hydro Power, LLC Toronto, Cliff Lake, & Swinging Bridge Hydroelectric Dam System Towns of Bethel, Forestburgh, Highland, Lumberland and Thompson, Sullivan County, New York PROCEEDINGS This docket is issued in response to an Application submitted to the Delaware River Basin Commission (DRBC or Commission) by Eagle Creek Hydro Power, LLC (Eagle Creek or docket holder) on December 12, 2017 (Application), to modify an existing hydroelectric power project to include a new 1.1 megawatt capacity minimum flow hydroelectric generating unit (Swinging Bridge Unit 3) at Swinging Bridge Dam associated with the Upper Mongaup Reservoir system. The Federal Energy Regulatory Commission (FERC) issued License No. P on April 14, 1992 for the Swinging Bridge Project. Eagle Creek has requested an amendment to the existing FERC license to include the new minimum flow unit and anticipates FERC approval in April The project also requires a Section 404 approval from the United States Army Corps of Engineers (USACE) and the amendment of the existing Section 401 water quality certificate issued by the New York State Department of Environmental Conservation (NYSDEC). The Application was reviewed for inclusion in the Comprehensive Plan and approval under Section 3.8 of the Delaware River Basin Compact. The Orange County Planning Department and Sullivan County Division of Planning and Environmental Management have been notified of pending action. A public hearing on this project was held by the DRBC on February 14, A. DESCRIPTION 1. Purpose. The purpose of this docket is to modify an existing hydroelectric power project to include the construction and operation of a new 1.1 megawatt (MW) hydroelectric turbine (Swinging Bridge Unit 3) located at the Swinging Bridge dam adjacent to the docket holder s existing operable 6.75 MW Swinging Bridge Unit 2 powerhouse and inoperable Unit 1 powerhouse. The new turbine will utilize the minimum flow releases from the Swinging Bridge Reservoir (SBR) bringing the total generating capacity of the Swinging Bridge Hydroelectric Project to 7.85 MW. No modifications to reservoir elevations or flows are proposed as a result of this Project. 2. Location. The Swinging Bridge Project consists of three facilities: Toronto, Cliff Lake, and Swinging Bridge. The Swinging Bridge facility utilizes flows from the Toronto and Cliff Lake storage reservoirs and the Mongaup River to generate electricity. The Toronto Reservoir releases

2 2 water to the Cliff Lake Reservoir via Black Lake Creek. A tunnel diversion then releases water from the Cliff Lake Reservoir to the SBR. The SBR is located at River Mile (Delaware River Mongaup River) in Sullivan County, New York. The Upper Mongaup Reservoirs and existing and proposed hydroelectric turbines at the SBR are located within the drainage area to the Upper Delaware Special Protection Waters (SPW). 3. Area Served. Energy produced by the Project supplies the regional grid where the SBR dam is located. The reservoirs themselves provide recreational uses and water storage to supplement stream flow in the main-stem Delaware River. For the purpose of defining the Area Served, the Application is incorporated herein by reference consistent with conditions contained in the DECISION section of this docket. 4. Physical Features. a. Reservoir and Dam Descriptions. The Mongaup Reservoir System was constructed in the 1920s and consists of the Toronto, Cliff Lake, Swinging Bridge, Mongaup Falls, and Rio Reservoirs. The reservoir system has an overall water storage capacity of approximately billion gallons, most of which is stored in the Toronto and Swinging Bridge Reservoirs. The reservoir system was designed to incorporate hydroelectric generation utilizing hydroelectric power generating turbines installed in downstream powerhouses of many of the dams. This docket continues approval of releases from the Upper Mongaup Reservoirs (Toronto, Cliff Lake and SBR) for hydroelectric generation at the SBR. The Mongaup Falls and Rio Reservoirs are approved separately in DRBC Docket No. D CP-1. The Toronto Dam is a 1,620 feet long earthen dam with a maximum height of 103 feet. Toronto Reservoir has a surface area of approximately 860 acres and a useable water storage capacity of 7.74 billion gallons. The Cliff Lake Dam consists of two earth embankment sections, a 100 feet long by 25 feet high concrete overflow spillway with flashboards, and a 150 feet long by 36 feet high nonoverflow section. Cliff Lake Reservoir has a surface area of approximately 190 acres and a useable water storage capacity of 0.79 billion gallons. The Swinging Bridge Dam is a 975 feet long earthen dam with a maximum height of 135 feet. SBR has a surface area of approximately 1,000 acres and a useable water storage capacity of 5.48 billion gallons. DRBC Docket No. D CP-1 was approved on May 10, 2012 and describes the Mongaup Falls and Rio Reservoir system along with the hydroelectric projects located therein. b. Swinging Bridge Powerhouse Descriptions. There are two existing powerhouses at the Swinging Bridge facility, each containing one generator-turbine unit (Units 1 and 2). The Unit 1 and Unit 2 powerhouses are located approximately 330 feet and 472 feet downstream of the dam, respectively. Unit 1 was formerly supplied water by a steel lined concrete penstock, 10 feet in diameter by 692 feet long, until it was

3 3 filled with a cementitious material after the unit was taken out of service. Unit 2 is supplied with water from SBR by a concrete lined tunnel, 9.75 feet in diameter by 784 feet long, connected to a steel penstock, 10 feet in diameter by approximately 188 feet long. The current total authorized installed capacity of the Project is MW. Unit 1 has an installed capacity of 5.0 MW and has been out of service since Unit 2 has an installed capacity of 6.75 MW. Eagle Creek does not have any current plans to rehabilitate or use Unit 1 and proposes to amend the current total installed capacity of the Swinging Bridge Project by removing the capacity associated with the Project s inoperable 5.0 MW turbine-generator unit (Unit 1) and adding the installed capacity associated with the new 1.1 MW minimum base flow turbine-generator unit (Unit 3). Through this amendment, the capacity of the inoperable Unit 1 will be removed and the new Unit 3 will be added, resulting in an amendment to the Project s total installed capacity from MW to 7.85 MW. The proposed Swinging Bridge Unit 3, with a hydraulic capacity of 112 cfs at best gate, will be housed in a new powerhouse directly adjacent to the Project s Unit 2 powerhouse. The existing flow regime of the Swinging Bridge Project will not change due to this amendment. Flow to the new minimum base flow powerhouse will use the same intake and penstock as the current minimum flow valve and Unit 2 powerhouse and the discharge point of the new minimum base flow powerhouse will be located directly adjacent to the existing valve and Unit 2 powerhouse. The new Unit 3 powerhouse will continue to provide the required minimum flow downstream of the Swinging Bridge Dam by itself or in conjunction with Unit 2 or the existing minimum flow release valve in accordance with required water release requirements. Installation of new Unit 3 will require construction activities in the previously disturbed, upland area located immediately north of the existing Unit 2 powerhouse, including the following: Construction of a new, 30-foot long by 30-foot wide concrete and steel powerhouse; A new penstock section (4-feet diameter by 20-feet long) connected to the existing penstock bifurcation that provides water to the minimum flow valve in the Unit 2 powerhouse; and Tailrace excavation ranging from approximately 6-feet wide by 20-feet long for a draft tube and tailrace for the new powerhouse. The docket holder is required to submit final construction plans related to the new powerhouse project to the Commission s Executive Director prior to the start of construction. (see Condition C.II.f.). c. Cost. The overall cost of the of the new Powerhouse project is estimated to be $3,889, d. Relationship to the Comprehensive Plan. The Mongaup Reservoir System was included in the Comprehensive Plan in February Docket No. D CP-1 was approved on May 10, 2007 and continued approval of the reservoirs while adding the hydro-electric projects to the Comprehensive Plan. This docket will continue approval of the Upper Mongaup Reservoir system in the Comprehensive Plan. It will also add the new powerhouse associated with the Swinging Bridge Dam into the Comprehensive Plan.

4 4 B. FINDINGS Special Protection Waters In 1992, the DRBC adopted SPW requirements, as part of the DRBC Water Quality Regulations (WQR), designed to protect existing high water quality in applicable areas of the Delaware River Basin. One hundred twenty miles of the Delaware River from Hancock, New York downstream to the Delaware Water Gap has been classified by the DRBC as SPW. This stretch includes the sections of the river federally designated as "Wild and Scenic" in the Upper Delaware Scenic and Recreational River and the Delaware Water Gap National Recreation Area -- as well as an eight-mile reach between Milrift and Milford, Pennsylvania which is not federally designated. The SPW regulations apply to this 120-mile stretch of the river and its drainage area. On July 16, 2008, the DRBC approved amendments to its WQR that provide increased protection for waters that the Commission classifies as SPW. The portion of the Delaware River and its tributaries within the boundary of the Lower Delaware River Management Plan Area was approved for SPW designation and clarity on definitions and terms were updated for the entire program. Article A.2.e.1). and 2). of the Commission s WQR states that projects subject to review under Section 3.8 of the Compact that are located in the drainage area of SPW must submit for approval a Non-Point Source Pollution Control Plan (NPSPCP) that controls the new or increased non-point source loads generated within the portion of the docket holder s service area which is also located within the drainage area of SPW. The service area of the docket holder is located within in the drainage area to the SPW. The Swinging Bridge Hydropower Station is upstream from two other reservoirs in the Mongaup System, which are regarded as a major water storage facilities, therefore the non-point source pollution control plan requirement pertaining to projects in the drainage area of SPW is not applicable at this time. Condition C.II.d. continues the requirement that the docket holder maintain minimal flow releases from the Toronto and Cliff Lake dams of 10 cfs and 10 cfs, respectively, and from Swinging Bridge Dam of 100 cfs, or inflow if less, based on consultation with NYSDEC, but not less than 60 cfs. This requirement remains in place to ensure downstream water flows continue to support aquatic life and aid in the Montague flow target. The docket holder shall continue to operate the reservoirs in accordance with the Mongaup River Hydroelectric System Normal Conditions Operating Plan and the Mongaup River Hydroelectric System Drought Conditions Operating Plan dated April 12, 2016 and in consultation with the NYSDEC, as applicable. Any future updates or modifications to the Operating Plans shall be submitted to the Commission and approved by the DRBC Executive Director prior to implementation.

5 5 The project does not conflict with the Comprehensive Plan and is designed to prevent substantial adverse impact on the water resources related environment, while sustaining the current and future water uses and development of the water resources of the Basin. The project is designed to produce a discharge meeting the effluent requirements as set forth in the Commission s Water Quality Regulations (WQR). C. DECISION I. Effective on the approval date for Docket No. D- D CP-3 below: a. The Upper Mongaup Reservoirs and hydro-electric facilities described in Docket No. D CP-2 are removed from the Comprehensive Plan to the extent that they are not included in Docket No. D CP-3; and b. Docket No. D CP-2 is terminated and replaced by Docket No. D CP-3; and c. The project and the appurtenant facilities described in Section A Physical Features of this docket shall be continued in the Comprehensive Plan. II. The project and appurtenant facilities as described in Section A Physical Features of this docket are approved pursuant to Section 3.8 of the Compact, subject to the following conditions: a. Docket approval is subject to all conditions, requirements, and limitations imposed by the FERC and NYSDEC. b. The Upper Mongaup Reservoirs along with their respective dams and powerhouses shall be available at all times for inspection by the DRBC. c. The facilities shall be operated at all times to comply with the requirements of the Commission s WQR and Water Code. d. The docket holder shall maintain minimal flow releases of 10 cfs and 10 cfs at the Toronto and Cliff Lake dams, respectively and 100 cfs, or inflow, if less, based on consultation with NYSDEC, but not less than 60 cfs at Swinging Bridge dam. e. The docket holder shall continue to operate the reservoirs in accordance with the Mongaup River Hydroelectric System Normal Conditions Operating Plan and the Mongaup River Hydroelectric System Drought Conditions Operating Plan dated April 12, 2016 and in consultation with NYSDEC, as applicable. Any future updates or modifications to the Operating Plans shall be submitted to the Commission and approved by the DRBC Executive Director prior to implementation.

6 6 f. The docket holder shall submit final construction plans related to the new powerhouse to the Commission s Executive Director prior to the start of construction. g. Nothing herein shall be construed to exempt the docket holder from obtaining all necessary permits and/or approvals from other State, Federal or local government agencies having jurisdiction over this project. h. The docket holder is permitted to provide power to the grid and utilize water storage in each reservoir for recreational use/conservation release as defined in the Area Served Section of this docket. i. The docket holder shall discharge water from the turbines/generators in such a manner as to avoid injury or damage to fish or wildlife and shall avoid any injury to public or private property. j. Within 30 days of completion of construction of the approved project, the docket holder is to submit to the attention of the Project Review Section of DRBC a Construction Completion Statement ( Statement ) signed by the docket holder s responsible agent for the project. The Statement must (a) either confirm that construction has been completed in a manner consistent with any and all DRBC-approved plans or explain how the as-built project deviates from such plans; (b) report the project s final construction cost as such cost is defined by the project review fee schedule in effect at the time application was made; and (c) indicate the date on which the project was (or is to be) placed in operation. In the event that the final project cost exceeds the estimated cost used by the applicant to calculate the DRBC project review fee, the statement must also include (d) the amount of any outstanding balance owed for DRBC review. Such outstanding balance will equal the difference between the fee paid to the Commission and the fee calculated on the basis of the project s final cost, using the formula and definition of project cost set forth in the DRBC s project review fee schedule in effect at the time application was made. k. This approval of the construction related to the new powerhouse as described in paragraph A.4.b. of this docket shall expire three years from date below unless prior thereto the docket holder has commenced operation of the subject project or has provided the Executive Director with written notification that is has expended substantial funds (in relation to the cost of the project) in reliance upon this docket approval. l. The issuance of this docket approval shall not create any private or proprietary rights in the waters of the Basin, and the Commission reserves the right to amend, suspend or rescind the docket for cause, in order to ensure proper control, use and management of the water resources of the Basin. m. The docket holder is responsible for timely submittal to the DRBC of a docket renewal application on the appropriate application form including the appropriate docket application filing fee (see 18 CFR ) at least 6 months in advance of the docket expiration date set forth below. The docket holder will be subject to late filed renewal surcharges in the event of untimely submittal of its renewal application, whether or not DRBC issues a reminder notice in advance of the deadline or the docket holder receives such notice. In the event that a timely and

7 7 complete application for renewal has been submitted and the DRBC is unable, through no fault of the docket holder, to reissue the docket before the expiration date below, the terms and conditions of the current docket will remain fully effective and enforceable against the docket holder pending the grant or denial of the application for docket approval. n. The docket holder shall be subject to applicable DRBC regulatory program fees, in accordance with duly adopted DRBC resolutions and/or regulations. (see 18 CFR ). o. This approval is transferable by request to the DRBC Executive Director provided that the project purpose and area served approved by the Commission in this docket will not be materially altered because of the change in project ownership. The request shall be submitted on the appropriate form and be accompanied by the appropriate fee (see 18 CFR ). p. The docket holder shall request a name change of the entity to which this approval is issued if the name of the entity to which this approval is issued changes its name. The request for name change shall be submitted on the appropriate form and be accompanied by the appropriate fee (see 18 CFR ). q. The Executive Director may modify or suspend this approval or any condition thereof, or require mitigating measures pending additional review, if in the Executive Director's judgment such modification or suspension is required to protect the water resources of the Basin. r. Any person who objects to a docket decision by the Commission may request a hearing in accordance with Article 6 of the Rules of Practice and Procedure. In accordance with Section 15.1(p) of the Delaware River Basin Compact, cases and controversies arising under the Compact are reviewable in the United States district courts. BY THE COMMISSION DATE APPROVED: March 14, 2018 EXPIRATION DATE: March 14, 2028