Sea wall

At the right, the sea wall clearly shows how much Lake Freeman water levels dropped between July and mid-September 2020, when water was released from the Oakdale Dam to help sustain a group of endangered freshwater mussels downstream.

MONTICELLO — A US Congressman is calling on the leaders of two federal agencies to end their “woeful negligence” and meet with him to discuss how to prevent future mass draw-downs of Lake Freeman to comply with the Endangered Species Act and help save an endangered species of mussels living downstream from the Oakdale Dam.

US Rep. Jim Baird (R-4th District) sent a letter to Martha Williams, acting director of the US Fish and Wildlife Service, and members of the Federal Energy Regulatory Commission to “meet in good faith” after a federal appeals court, earlier this year, ordered the two federal agencies to discuss whether drops in lake levels during times of low-water flow, such as droughts, are only a “minor change” from normal levels.

In his letter, Baird said he’s been reaching out to FERC and USFWS to discuss it — and isn’t getting return correspondence.

“As a farmer and conservationist, I fully appreciate the mission and value of the conservation-minded protections intended by the ESA,” he wrote. “Unfortunately though, the reality for our community has instead been that a lack of reasonable flexibility or adequate inter-agency cooperation has created a scenario where even limited droughts can have a significant impact on local habitability, the business community, and the natural ecosystem.

“This is an unfortunate symptom of negligence to a well-intentioned community by your agencies — failing to offer any potential solution independently, to attempt to cooperate in pursuit of a better outcome, or to even reliably come to the table as my office has time and again sought your mutual attention to the problem through a joint meeting.”

The matter revolves around opening the Oakdale and Norway dams to provide water to the habitat of the endangered mussel species. It was in response to the 2012 drought, during which USFWS issued a Technical Assistance Letter (TAL) 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 mussels and comply with the ESA.

On Oct. 5, 2020, the U.S. Court of Appeals for the Washington, D.C., district heard arguments from the Shafer Freeman Lakes Environmental Conservation Corporation (SFLECC). The lake group’s argument is that USFWS over-calculated how much water the mussels need.

USFWS, according to SFLECC officials, believes that the 13-foot water level drop that occurred in summer and fall 2020 was only a “minor change.”

The court determined in March 2021 that USFWS’s use of linear scaling to determine the proper flow out of the dam is correct, but added that FERC and USFWS failed to determine if USFWS’s requirements were a “minor change” to FERC’s staff alternative. The case was sent back to FERC to make that determination.

NIPSCO’s operating license, issued by FERC, required the power company to keep lake levels close to its “run-of-river” designation — guidelines that had been in effect for over 80 years. FERC made amendments to the license in 2018.

During the summer and throughout the fall of 2020, Freeman’s water level dropped 13 feet because of what the National Oceanic and Atmospheric Administration’s (NOAA) Drought Monitor termed a “mild or abnormal drought” in the area. That kick-started the process mandated by the ESA to release the 500 cfs of water for the mussels.

The lowered levels exposed many areas of lakebed that hadn’t been seen since the mid-1920s when the Oakdale and Norway dams, both owned and operated by NIPSCO, were built.

Baird wrote that the 2020 decreased water level was substantial, noting that he walked the lakebed with his constituents and USFWS staffers on several occasions.

“Boats were stuck on lifts or on the lakebed, seawalls collapsed, wells ran dry, businesses shuttered and property values plummeted,” he wrote. “Time and again … we’ve been told that (FERC and USFWS) sympathizes with problems but were not to blame; that solutions were in the works but that the ball was in another party’s court; that your teams were willing to help, if only the other party would come to the table.

“Unfortunately, the only consistency that we have seen here is that to this day – more than a year later – nothing has happened and nothing has changed.”

Baird said he learned in early March 2021 that in December 2020, FERC and USFWS had informally met and agreed to begin the 135-day consultation process necessary to adjust policies and re-evaluate biological opinions. He also learned that FERC had authorized NIPSCO, owner of the Oakdale Dam, to negotiate in FERC’s behalf.

Searching for an update in June 2021, Baird further learned none of it had happened.

“Considering these interactions and this woeful negligence, it now seems plainly apparent to me that relying on your respective parties to take the initiative individually in offering a solution is just not feasible,” Baird wrote.

Baird wrote that FERC and USFWS “prioritize making time” for an in-person meeting with him before the end of November.

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