This photo supplied by Madam Carroll co-owner Chris Peters in the fall of 2020 shows the boat docket in the low waters on Lake Freeman
MONTICELLO — After almost six months, the U.S. Court of Appeals released its opinion Tuesday in response to oral arguments made last October by a local conservation group to preserve the Twin Lakes as they have always existed.
The opinion is a mixed bag with no clear-cut winner or loser.
“Unfortunately, it did not go 100% our way,” said John Koppelmann, Lake Level Task Force chair for the Shafer & Freeman Lakes Environmental Conservation Corp. (SFLECC). “But we still have an opportunity to impact the desired change.”
In a nutshell, the court determined there is nothing wrong with the U.S. Fish and Wildlife Service’s use of linear scaling to determine the amount of flow out of Oakdale Dam during abnormal low flow events. But the court also said Federal Energy Regulatory Commission (FERC) and USFWS, failed to determine if USFWS’s requirements were a “minor” change to the operations of the Oakdale Dam.
The matter revolved around opening the dams to provide water to the habitat of an endangered mussel species downstream from the Oakdale Dam. It was in response to the 2012 drought, during which USFWS issued a technical assistance letter that mandated NIPSCO, the owner of the Oakdale and Norway dams, to open Oakdale’s gates and send 500 cubic feet per second of water from Lake Freeman during “low flow events” in order to water the habitat of endangered mussels.
NIPSCO‘s issued operating license through FERC required the power company to keep the lake levels close to its “run-of-the-river” designation — guidelines that had been in effect for over 80 years, according to SFLECC. FERC made amendments to the license in 2018.
In response to FWS’s mandate, SFLECC led a coalition of almost 3,000 lake property owners, businesses and local governments in Carroll and White counties and filed a protest that has bounced around the court system for the last seven years.
So what does it all mean?
In its opinion, the court sent the case back to FERC for it and USFWS to determine if USFWS’s set of guidelines for management of the Oakdale Dam makes only a “minor” change to FERC’s staff alternative.
“Despite significant expert testimony to the contrary, we are disappointed that the court felt USFWS acted reasonably using the linear scaling method,” stated Gabrielle Haygood, SFLECC executive director. “Moving forward, we are hopeful that what happened to Lake Freeman in 2020 will illustrate to FERC that the changes are anything but ‘minor.’”
Lake Freeman’s water levels began receding in July 2020 after the area experienced a “moderate drought.” Lake levels dwindled by as much as 12 feet until a series of late autumn rain events and a couple of heavy winter snows this year help boost lake levels. As of March 1, water levels had returned to normal standards.
SFLECC officials said it’s their understanding that if FERC deems USFWS’s mandates to be anything but minor in the way the Oakdale Dam is designed to operate as compared to FERC’s staff alternative, (which almost mirrored SFLECC’s proposal for revised dam operations), FERC has the authority to amend its license with NIPSCO to implement the staff alternative.
“That would be a significant relief to the Monticello and Twin Lakes community,” Koppelman said.
Haygood said the court will soon issue its formal mandate to FERC, at which time SFLECC will learn of timelines involved in the process. She added that changes made to NIPSCO’s license with FERC in 2018 remain in place in lieu of additional FERC proceedings.
In the meantime, SFLECC is encouraging those affected by the 2020 Lake Freeman drawdown to do a couple of things:
• Contact legislators to let them know how it has affected property and the environment near homes along Lake Freeman and request that they contact FERC. People are also asked to provide before-and-after photos for comparison.
• Submit comments with photos to FERC “so they can see that USFWS’s requirement is not a ‘minor’ change and they can see firsthand how it affected your property and the environment around it.”
• Comments by individuals on the issue may be sent to FERC in two ways: via eComment or via US mail. The eComment procedure is detailed at www.ferc.gov. Reference project P-12514.
• Comments by individuals sent by US mail should be titled “Comment on Project P-12514.”
• Send to Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426.
• All comments sent to FERC may be viewed online at www.ferc.gov through their eLibrary.
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