The Carroll County and White County Economic Development Corporations have partnered with Purdue Center for Regional Development to conduct an economic impact study on Lake Freeman. To participate in the study, business owners should visit https://pcrd.purdue.edu/lfbusiness; Homeowners may visit https://pcrd.purdue.edu/lfhomeowners; and visitors should go to https://pcrd.purdue.edu/lfvisitor
If you were affected in any way by the low water levels, please take the survey today!
Nearly 6 months after the October 5, 2020 hearing with the Federal Court, The Shafer and Freeman Lakes Environmental Conservation Corporation (SFLECC) received the opinion and order from the panel of judges that heard our case. “Unfortunately, it did not go 100% our way”, said John Koppelmann, Lake Level Task Force Chair, “but we still have an opportunity to impact the desired change.”
Excerpt from the Judges’ Opinion: “We otherwise find no error in the agencies’ expert scientific analyses. But we hold that the agencies failed to adequately explain why the new dam procedures do not violate a regulation prohibiting the Fish and Wildlife Service from requiring more than “minor” changes to the Commission’s proposal for dam operations. Because vacating the agencies’ decisions would subject the dam operator to contradictory legal obligations imposed by separate agencies, we grant the petition in part, deny the petition in part, dismiss the petition in part, and remand to the Commission without vacatur for further proceedings consistent with this opinion.”
What this means is that the Court found nothing wrong with the US Fish & Wildlife Service’s (FWS) use of Linear Scaling to determine the amount of flow out of Oakdale Dam during Abnormal Low Flow events. But, the court felt that both agencies, Federal Energy Regulatory Commission (FERC) and FWS, failed to determine if FWS’s requirements were a “minor” change to the operations of the Oakdale Dam. And thus, is sending the case back to FERC for FERC and FWS to determine if FWS’s Technical Assistance Letter (TAL) makes only a “minor” change to FERC’s staff alternative.
Under the Endangered Species Act (ESA), the FWS can prescribe in its Incidental Take Statement “reasonable and prudent measures” that it considers “necessary or appropriate to minimize” the impacts of any anticipated incidental take of an endangered or threatened species. See 16 U.S.C. § 1536(b)(4)(ii). By regulation, the FWS requires that any reasonable and prudent measures it proposes “cannot alter the basic design, location, scope, duration, or timing of the action and may involve only minor changes.” See 50 C.F.R. § 402.14(i)(2).
It is our understanding, that if FERC deems FWS’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 the license to implement the Staff Alternative. That would be a significant relief to the Monticello and Twin Lakes community.
“Despite significant expert testimony to the contrary, we are disappointed that the Court felt FWS acted reasonably using the linear scaling method. Moving forward, we are hopeful that what happened to Lake Freeman in 2020 will illustrate to FERC that the changes are anything but ‘minor’,” stated Gabrielle Haygood, SFLECC Executive Director.
The Court will soon issue its formal Mandate to FERC, at which time, we will then learn the timelines involved in this process. Additionally, the change made to NIPSCO’s license with FERC in 2018 stands as we wait for additional FERC proceedings.
In the meantime, the SFLECC encourages those affected by the devastating 2020 Lake Freeman drawdown to do 2 things:
First, contact your Federal Legislator letting them know how it affected your property and the environment around your property and requesting them to contact FERC. Providing photos, especially comparison photos, will be very helpful;
Second, submit your comments with photos to FERC so they can see that FWS’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.
CONTACT INFORMATION FOR FEDERAL LAWMAKERS:
FOR IMMEDIATE RELEASEMarch 29, 2021
SHAFER AND FREEMAN LAKES ENVIRONMENTAL CONSERVATION CORPORATION (SFLECC) has received a grant from the NiSource Charitable Foundation, the charitable foundation supported by NIPSCO’s parent company NiSource Inc., to restock Lakes Freeman and Shafer.
Due to environmental concerns created by lowered lake levels in Lake Freeman, the SFLECC pursued options to sustain the fish populations that may have been deprived of important spawning areas.
SFLECC applied for a $40,000 grant through NIPSCO (NiSource Charitable Foundation) that will allow the restocking of fish in both Lake Freeman and Lake Shafer. “We received the wonderful news that we had been awarded $40,000, which will allow us to accomplish our goal. We are truly grateful that NIPSCO has made it possible,” stated Gabrielle Haygood, SFLECC Executive Director.
SFLECC is dedicated to supporting the lakes’ biodiversity through fish stocking and creating habitat in our lakes. We are currently working with a DNR fisheries biologist to establish where and what types of fish are best for our lakes, and will be stocking the lakes sometime this fall. The biologist can help determine the types of fish needed for a more environmentally balanced body of water that can self-maintain weed and insect problems.
Karen McLean, NIPSCO Public Affairs and Economic Development Manager shares “NIPSCO is committed to being good neighbors with the White and Carroll County communities and SFLECC. We are excited to provide funding to reestablish the natural fish habitats in the lakes that provide such an economic impact.”
This grant will support the lakes for sport fishing, as well as provide better fishing for local homeowners and community. The Twin Lakes bring in fishing tournaments and are a vital contribution to local tourism and economy.
As of 6 a.m. ET, March 1, 2021, the surface elevation taken near the face of the Oakdale Hydroelectric Dam has returned to the normal Federal Energy Regulatory Commission (FERC) operating range between 610.10 and 611.10 ft.
Currently, Lake Freeman is down just under 2.5 ft. As the water levels continue to rise, as well as the lake freezing and thawing, please make sure your boats and PWCs are secure. It would also be helpful to notify your neighbors who may not be around in the winter of this so they can plan accordingly. Thank you and Think Spring!
After a few weeks of some precipitation, it looks as though the water levels are heading in the right direction in 2021! A big thanks to Susan’s Freeman Bay for providing a visual. We are still awaiting a decision from our October 5th court hearing and the minute we know anything, we will pass it along. Happy New Year!
NIPSCO continues to maintain close coordination with local officials to closely monitor the drought conditions and extended lack of rain and water flow along the Tippecanoe River, which has resulted in low lake levels at Lake Freeman where the Oakdale Hydroelectric Dam is situated.
An Abnormal River Condition (ARC) Warning was issued in early August, requiring NIPSCO to adjust operations to maintain a defined level of flow through its Oakdale Dam along Lake Freeman to comply with the Endangered Species Act, which is federally mandated and enforced by the U.S. Fish and Wildlife Services (USFWS).
Without a significant rainfall or water upstream, the use of Lake Shafer – where NIPSCO’s Norway Hydroelectric Dam is situated – may be required to maintain compliance, which could potentially affect lake levels at Lake Shafer. The timing and degree of any potential drawdown of Lake Shafer is dependent on weather, but current projections indicate such activity could occur as early as this year.
During normal operations, NIPSCO is required to operate both dams as “Run-of-Rivers”, under its license from the Federal Energy Regulatory Commission (FERC). This requires NIPSCO, to the maximum extent practicable, to match the outflow from the Norway Dam to the sum of the inflows to Lake Shafer, and the outflow of the Oakdale Dam has to match the sum of the inflows to Lake Freeman.
During times of drought when there is a lack of rainfall for an extended period of time – as experienced this summer – there is less water moving down the river. FERC refers to those instances as “Abnormal River Conditions,” and due to the presence of endangered mussels, provides specific guidance on how much water must be discharged from Oakdale Dam. When Abnormal River Conditions persist – which it has done – it causes Lake Freeman levels to drop.
If there is not enough water in Lake Freeman to maintain the required flows through the Oakdale Dam, NIPSCO may need to utilize the Norway Dam to draw on Lake Shafer in order to meet the federal requirements. NIPSCO is requesting a temporary variance from FERC in the event that drought conditions persist and Lake Shafer water is needed to comply with the federal requirements.
The specific manner in which NIPSCO will manage both lakes in these conditions, including how the drawdown and reloading occurs, is dependent on safe operation of the dams and how weather conditions evolve.
For an ARC event to be lifted, the 24-hour average must rise above 410 cfs at the Buffalo USGS gauge and the 24-hour average must rise above 300 cfs at the Winamac USGS gauge. Current information may be found at www.nipsco.com/hydro.
LAKE SHAFER ADDITIONAL FAQs
Can’t NIPSCO just continue using Lake Freeman to comply with the Endangered Species Act?
No, without additional water or rainfall, there is not sufficient water in Lake Freeman to maintain the required flows through the Oakdale Hydroelectric Dam.
When water levels begin to return/increase, how will the refilling process occur?
As water levels begin to return, NIPSCO will attempt to fill both lakes as close to the same time as reasonably possible to balance the stability of the Norway Dam on both sides.
How long will NIPSCO utilize Lake Shafer to maintain the required flows through the Oakdale Dam?
NIPSCO has requested a temporary variance to allow for the use of Lake Shafer until the elevation at Lake Freeman has returned to normal operating levels (610.35 ft). The temporary variance will expire after that point. NIPSCO is not able to predict how long the current drought conditions will continue, as it is dependent on weather and additional water.
As many of you have been following our Low Lake Level situation, here we are, yet another week going by without enough rain. We first want to start out by letting you know we had our hearing on Monday in the D.C. Circuit Court of Appeals. For those who listened in, we felt, at first, we were off to a rocky start. As time went on, we started feeling much better as our attorney was able to get in some very good and important points. We then listened to the FERC attorney and then the FWS attorney from the Department of Justice, and there was just as much critical questioning to those attorneys. We realized the judges definitely did their homework and read the materials given to them ahead of time, and were prepared to ask tough questions to all of the parties. All in all, we felt there wasn’t one party that succeeded over the other, and are thankful that the outcome is being determined by three impartial judges. We hope to hear a decision within the next 30-60 days, but as you know it is federal court and could take several months. After all, the SFLECC has been battling this for the last six years.
Several have listened to us as we’ve gotten the word out to contact the Federal Senators and U.S. Representatives. Thank you for continuing to do this as it is imperative to gain their attention. You ask, “Is this doing any good?” Yes, it certainly is! Over the last month, we have had meetings with U.S. Representative Jim Baird who is very passionate regarding this matter. Representative Baird has been to Lake Freeman and has seen firsthand what we are dealing with. We have also had meetings with and calls from Senator Braun’s and Senator Young’s offices. As some of you may have seen a couple weeks ago, Senator Braun had the opportunity to bring up the Lake Freeman situation while attending an EPW Hearing on the Endangered Species Act. On a local level, Senator Brian Buchanan, along with Senator Alting and Rep. Don Lehe, have been here evaluating the situation and are continually getting in touch with people at the state level. Senator Buchanan and Senator Alting have been involved in several conference calls that we have had and have even initiated some of those calls. So as you can see, your calls and letters are getting the attention we need.
Lastly, we want you to know that just because our court date has happened, we are still constantly trying to come up with other solutions. We have a phenomenal task force, and the SFLECC Board of Directors and staff are very passionate about this issue as we plough forward. We will continue to do whatever we can to help save the lake levels!
Gabrielle Haygood, SFLECC Executive Director
John Koppelmann, SFLECC Lake Levels Task Force Chairperson
The U.S. Fish and Wildlife Service (FWS) propose to amend portions of their regulations that implement section 4 of the Endangered Species Act of 1973, as amended (Act). The proposed revisions set forth a process for excluding areas of critical habitat under section 4(b)(2) of the Act, which mandates their consideration of the impacts of designating critical habitat and permits exclusions of particular areas following a discretionary exclusion analysis. They want to articulate clearly when and how FWS will undertake an exclusion analysis, including identifying a non-exhaustive list of categories of potential impacts for FWS to consider. The proposed rulemaking would respond to applicable Supreme Court case law, reflect agency experience, codify some current agency practices, and make some modifications to current agency practice. The intended effect of this proposed rule is to provide greater transparency and certainty for the public and stakeholders.
Time is of the essence! We urge everyone to submit a comment today! https://www.regulations.gov/document?D=FWS-HQ-ES-2019-0115-0001
Here’s a submitted comment from a Lake resident that may help shape yours: “As it pertains to the Tippecanoe River above Lake Shafer & below Lake Freeman, please acknowledge the lakes have been always run as run-of-the-river lakes, where the measured input of upstream water matches the output at the other end. Currently, the calculations are incorrect and Oakdale dam is being mandated to release more water than enters the dam system, causing the draining of Lake Freeman in historic amounts. When there is a drought, the rivers all slow and recede naturally. Artificially supplementing the water released to the lower Tippecanoe River will also eventually run out, but at a huge environmental impact to the natural habitats of the lakes. The thousands of dead mussels, turtles, crawdads in Lake Freeman is devastating. In addition to the environmental impacts to the Lake Freeman habitats, the sea walls around the lake have already started collapsing due to the lack of positive pressure that has always been present between the water & land. Homeowners were left unable to plan for removal & protection of their property in preparation for this extended draw down. This will ultimately cause property damage to frozen boats, damaged covers due to snow load. Boats are unable to be winterized due to lack of manpower and capacity at the local marinas. This is all due to a federal mandate based on flawed science. There has to be a better balance!”
~10/5/2020~
Here is the audio link to today’s oral arguments in Washington D.C.
https://www.youtube.com/watch?v=sgprW9lbS6A
There are 3 cases and it looks like we may be 3rd on the docket. If you don’t want to hang on the phone waiting for our argument to start, there will be a recording posted on the Court’s website this afternoon, usually by 3 pm.
~UPDATE 10/6/2020~
A note from SFLECC Lake Levels Task Force Chairperson:
Many of you are aware that our court hearing in the US Court of Appeals – DC Circuit was yesterday, and I am sure many of you listened in. I will start with my take on the hearing and then I will summarize the follow up phone call I had with our attorney.
All in all, I felt the judges had read the materials beforehand and were prepared to ask ALL the sides thought-out questioning. Even when it comes to polar bears! (If you listened to the hearing, you’ll get this reference.) I will be honest, I do not feel that we have a leg up on the other parties, but I do not feel that either of them have a leg up on us. I feel the decision is up in the air, but I am happy that we have impartial judges making a decision instead of what we’ve been dealing with to this point with FWS using the ESA to hide behind, and FERC taking the complacent and easy route of agreeing with the FWS.
In speaking with our attorney yesterday afternoon, he feels our evidence is solid especially with some of the lines of questioning the judges had for the other 2 attorneys. He said he doesn’t want to get our hopes up because it is completely up to the judges. I asked if there was a set time that the judges had to make a decision and he said no. He anticipates 30-60 days before we hear a decision. He said he has heard of some judges rendering a decision after 2 weeks, but also others taking 11 months. I also asked if he is able to submit any kind of summary or final remarks and he said not unless the judges instructed him to do so, and they did not in this case.
So now we are back to waiting on a decision and not knowing when we will hear that decision. This is all too familiar of a situation over the last 6 years. Keep your fingers crossed that we hear the decision we want to hear and please continue to pray for rain, as that is our only means of immediate relief.
Thank you for your continued help and support of this issue.
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