The Commonwealth of Massachusetts Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 , MA 02114 Charles D. Baker GOVERNOR Tel: (617) 626-1000 Karyn E. Polito Fax: (617) 626-1081 LIEUTENANT GOVERNOR http://www.mass.gov/eea Kathleen A.Theoharides SECRETARY

October 9, 2020

CERTIFICATE OF THE SECRETARY OF ENERGY AND ENVIRONMENTAL AFFAIRS ON THE ENVIRONMENTAL NOTIFICATION FORM

PROJECT NAME : Lawrence Hydroelectric Project Eel Lift PROJECT MUNICIPALITY : Lawrence PROJECT WATERSHED : Merrimack EEA NUMBER : 16265 PROJECT PROPONENT : Essex Company, LLC. DATE NOTICED IN MONITOR : September 09, 2020

Pursuant to the Massachusetts Environmental Policy Act (MEPA; M.G. L. c. 30, ss. 61-62I) and Section 11.06 of the MEPA regulations (301 CMR 11.00), I hereby determine that this project does not require an Environmental Impact Report (EIR).

Project Description

As described in the Environmental Notification Form (ENF), the project consists of the construction of an eel lift at the north end of the Essex Dam in the City of Lawrence. The purpose of the project is to improve the passage of American eel upstream of the dam. Project construction will consist of installation of a concrete pad on existing bedrock at the base of the north dam abutment; installation of a metal hopper; construction of a metal rail system attached to the side of the north abutment; and the installation of a holding tank on the top of the abutment, as well as safety fencing. The project will not result in any changes to the operation of the dam or impoundment levels. As the concrete pad will be installed on exposed bedrock, no dredging is proposed for project construction.

EEA# 16265 ENF Certificate October 9, 2020

Project Site

The 0.03-acre project site consists of the portion of the channel where the concrete pad will be installed (at the base of the north abutment of the dam), and a small portion of the adjacent land parcel, to be used for temporary construction access and staging. According to the ENF, this parcel consists of a mowed open area with a historic gatekeeper’s residence. The Essex dam is a component of the Lawrence Hydroelectric Project (Federal Energy Regulatory Commission No. 2800- MA), located on the Merrimack River. Existing fish passage facilities at the 900-foot long, 33-foot high dam include a fish elevator, downstream fish bypass, and an eel ladder installed at the south end of the dam in 2012. According to the ENF, eel passage studies and improvements at the project site have been ongoing since eels were first observed seeking passage in 2001-2002. In 2018 and 2019, the US Fish and Wildlife Service (USFWS) installed temporary eel ramps at the north abutment of the dam. These temporary ramps were successful in collecting eels, resulting in the recommendation to install a permanent eel passage facility at the north abutment of the dam.

Immediately downstream of the project site is the Massachusetts State Route 28 bridge; an abandoned railroad bridge crosses the river further downstream. The project site contains several wetland resource areas, including: Riverfront Area (RFA), Land Under Water (LUW), Inland Bank (Bank), and Fish Runs. The base of the dam (Merrimack River) is located within a mapped Federal Emergency Management Agency (FEMA) floodplain, FEMA Zone AE (an area inundated by a 100-year storm). This area is also classified as a FEMA regulatory floodway. Two segments of the Merrimack River within a half-mile of the project site are classified as Category 5 Impaired Water Bodies due to the presence of Escherichia coli (E. coli), Mercury and PCBs in fish tissue, and total Phosphorous content of the water.

The Essex Dam, also referred to as the Great Stone Dam, is listed in the Massachusetts Historical Commission’s (MHC) Inventory of Historic and Archaeological Assets of the Commonwealth (Inventory). The dam is also listed in the National Register of Historic Places as the “Great Stone Dam.”

Environmental Impacts and Mitigation

Impacts associated with the project include the alteration of 641 square feet (sf) of land in order to construct the eel lift. Impacts to wetland resource areas include the permanent alteration of 16 sf of LUW to construct the base of the eel lift, and temporary impacts to 1,240 sf of RFA and 80 linear feet (lf) of Bank associated with construction and staging. The project will also permanently impact 80 lf of Fish Runs associated with improvement activities. The Proponent’s consultant provided updated information during MEPA review that indicates these impacts are conservative estimates that will likely decrease as project design is refined1.

Measures to avoid, minimize, and mitigate Damage to the Environment include limiting construction to periods of low-flow; use of electric drills instead of hydraulic equipment; and temporary erosion, sedimentation, and pollution controls during construction.

Jurisdiction and Permitting

1 Email from Jill Griffiths (Gomez and Sullivan) to Eva Murray (MEPA Office) sent on October 7, 2020. 2

EEA# 16265 ENF Certificate October 9, 2020

This project is subject to MEPA review and preparation of an ENF pursuant to 301 CMR 11.03(3)(b)(1)(e) of the MEPA regulations because it requires a State Agency Action and will result in new fill or structure or expansion of existing fill or structure in a velocity zone or regulatory floodway. The project will require a Fishway Construction Permit from the Massachusetts Department of Marine Fisheries (DMF) and review by MHC pursuant to Section 106 of the National Historic Preservation Act of 1966, as amended (36 CFR 800).

The project requires an Order of Conditions (OOC) from the Lawrence Conservation Commission (or in the case of an appeal, a Superseding Order of Conditions from MassDEP).

The project also requires submittal of a Pre-Construction Notification to the U.S. Army Corps of Engineers (ACOE) seeking authorization under the General Permits for Massachusetts in accordance with Section 404 of the federal Clean Water Act.

The project is not receiving Financial Assistance from the Commonwealth. Therefore, MEPA jurisdiction is limited to those aspects of the project that are within the subject matter of any required or potentially required Agency Actions and that may cause Damage to the Environment, as defined in the MEPA regulations.

Review of the ENF

The ENF provided a description of existing and proposed conditions, preliminary project plans, and measures to avoid, minimize and mitigate environmental impacts. To aid in MEPA review, the Proponent also provided an expanded alternatives analysis; correspondence with DMF, the Massachusetts Division of Fisheries and Wildlife (MassWildlife), and MHC; information on an Operation and Maintenance (O&M) Plan for the project; and additional site plans. In response to feedback regrading impacts to historical resources during the site visit, the Proponent provided supplemental information on historical resource areas that may potentially be affected by the project, and additional design plans with revised anchor details.2 For purposes of clarity, all supplemental materials provided by the Proponent are referred to herein as the “ENF” unless otherwise referenced. Comments from State Agencies do not identify any significant impacts that were not reviewed in the ENF.

Alternatives Analysis

As described in the ENF, alternatives were evaluated on their ability to best meet project goals while minimizing environmental impacts. Project goals were identified as improving the passage effectiveness of catadromous American eel upstream of the Essex Dam and enhancing the overall fishery resources of the Merrimack River and watershed. The ENF evaluated the following alternatives: No-Build Alternative; Eel Ramp Alternative, Suspended Hose Alternative, Submerged Bucket Alternative, and the Preferred Alternative.

The No-Build Alternative would not result in any environmental impacts; however, this Alternative was dismissed because the long-term impact of reduced eel passage would continue to harm environmental resources. The Eel Ramp Alternative would involve either a temporary or permanent eel

2 Supplemental Information distributed on October 1, 2020 by the Proponent’s consultant. 3

EEA# 16265 ENF Certificate October 9, 2020

passage structure, similar to the temporary eel ramp that was previously installed by USFWS in this location. The eel ramp structure is an approximately 12-foot-long ramp terminating in an eel trap (bucket) to collect eels, which are then manually transported into the upstream impoundment. According to the ENF, this temporary eel ramp was successful in collecting eels in both 2018 and 2019. According to the ENF, the continued annual installation of a temporary eel ramp would result in reduced impacts to environmental and historic resources compared to the Preferred Alternative; however this alternative was dismissed as the temporary eel ramp requires near-daily maintenance activities, which involve personnel crossing through an unsafe area beneath the Route 28 bridge. A permanent eel ramp was also dismissed because, if built to the full dam-height, this would result in greater impacts than the preferred alternative; and if built to a shorter height with a trap near the base of the dam, it would still present the same safety concerns as the temporary ramp.

The Suspended Hose Alternative would involve a suspended hose apparatus to provide eel passage and was tested at the project site in 2019. According to the ENF, this Alternative would result in reduced impacts to environmental and historic resources as compared to the Preferred Alternative, but the 2019 trial did not perform well and as such, this Alternative was deemed ineffective and dismissed. The Submerged Bucket Alternative would involve an approximately 2-foot-diameter hole drilled into the bedrock ledge near the north dam abutment, with a bucket submerged into the hole to collect eels. The bucket would be connected via a cable to a winch mounted on the top of the dam abutment, and personnel would raise the bucket each day to release collected eels. According to the ENF, this Alternative would have reduced impacts to environmental and historic resources as compared to the Preferred ENF, but was not supported by the Technical Committee for the Restoration of Anadromous Fish to the Merrimack River (Technical Committee); it was therefore dismissed.

The Preferred Alternative (described herein), was selected as it minimizes damage to the environment while providing the maximum benefits for eel passage. Additionally, the ENF states the eel lift design was requested the Technical Committee, which is comprised of the USFWS, US Forest Service (USFS), National Marine Fisheries Service (NMFS), DMF, MassWildlife, and Fish and Game Department (NH FGD).

Wetland and Water Resources

The Lawrence Conservation Commission will review the project for its consistency with the Wetlands Protections Act (WPA), the Wetland Regulations (310 CMR 10.00), and associated performance standards. The ENF states the project will be filed as an Ecological Restoration Project seeking a Restoration Order of Conditions from the Lawrence Conservation Commission under 310 CMR 10.13(7) for “restoring fish passageways.” Per 314 CMR 10.24(9), the Notice of Intent (NOI) for an Ecological Restoration Project involving the construction or replacement of public infrastructure shall include an operation and maintenance (O&M) plan to ensure that the infrastructure will continue to function as designed. Implementation of the O&M plan will be a continuing condition in the Restoration Order of Conditions and the Certificate of Compliance.

The project will result in the permanent alteration of 16 sf of LUW, where the 4-foot by 4-foot concrete base of eel lift will be constructed at the base of the dam, on the existing exposed bedrock of the Merrimack River. According to the ENF, this will require the placement of approximately one (1) cubic yard (cy) of concrete fill. Temporary impacts include 1,240 sf of RFA and 80 linear feet (lf) of

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EEA# 16265 ENF Certificate October 9, 2020

Bank associated with construction and staging, and will be restored to pre-construction conditions as necessary. Permanent impacts to Fish Runs are associated with installation of the eel lift. The ENF states the proposed project will not involve dredging or the discharge of dredged material and that the project will not result in any change to impoundment levels, spillway flow dissipation, flood elevation, or hydraulics of the site.

According to the ENF, a Section 401 Water Quality Certificate (WQC) is assumed to not be required from DEP in accordance with 314 CMR 9.03(1), as it will not result in the loss of 5,000 or more cumulative square feet of bordering or isolated vegetated wetlands or land under water, and will not involve dredging or discharge of dredged material. Additionally, while the project will result in the construction of the base of the eel lift within a waterway, the ENF states a DEP Chapter 91 Waterways Permit/License is assumed to not be required in accordance with 310 CMR 9.05(3)(g)(2), which states a Chapter 91 License or Permit is not required for the construction or instillation of device which will allow or assist fish to pass by a dam or other obstruction in the waterway and will not reduce the space available for navigation.

Marine Fisheries

The project will require a Fishway Construction Permit from DMF pursuant to M.G.L. c. 130, §§ 1 and 19, and 322 CMR 7.00; which requires an O&M plan for the eel lift. According to the ENF, the O&M plan will need to be updated and more fully detailed in collaboration with the Technical Committee following construction and testing of the eel lift. The plan will be incorporated into the overall Fishways Operation and Maintenance Plan (FOMP) for the Lawrence Project, which also includes O&M plans for the fish lift, downstream bypass, and south eel ladder facilities. The ENF included a determination letter from DMF dated August 19, 2020 that states the proposed will not require a Time of Year (TOY) restriction as project work will be accomplished during a low-flow period, when the project site will not require any dewatering. Comments from DMF state are supportive of the proposed project and eel lift design, and affirm erosion control best management practices should be utilized during construction to minimize turbidity impacts in the adjacent Merrimack River.

Historical and Archaeological Resources

The ENF states the Essex Dam is listed as the “Great Stone Dam” in the National Register of Historic Places (NRHP) (Structure #77000184) and as such the project will be reviewed by MHC for impacts to historic and archaeological properties. No demolition of the dam or appurtenant structures is proposed. According to the ENF, the proposed eel lift will be attached to the north abutment, and the dam spillway will not be impacted in any way, and that the installation of the proposed structures is reversible if necessary. During the site visit MHC expressed the need for further information regarding how the eel lift would be attached to the dam, and supplemental information was subsequently provided on these details by the Proponent’s consultant. I encourage the Proponent to continue working with MHC as the project progresses to permitting to minimize impacts to historic resources.

Climate Change Adaptation and Resiliency

Governor Baker’s Executive Order 569: Establishing an Integrated Climate Change Strategy for the Commonwealth (EO 569; the Order) was issued on September 16, 2016. The Order recognizes the

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serious threat presented by climate change and direct Executive Branch agencies to develop and implement an integrated strategy that leverages state resources to combat climate change and prepare for its impacts. The Order seeks to ensure that Massachusetts will meet GHG emissions reduction limits established under the Global Warming Solution Act of 2008 (GWSA) and will work to prepare state government and cities and towns for the impacts of climate change. I note that the MEPA statute directs all State Agencies to consider reasonably foreseeable climate change impacts, including additional greenhouse gas emissions, and effects, such as predicted sea level rise, when issuing permits, licenses and other administrative approvals and decisions. M.G.L. c. 30, § 61.

The Northeast Climate Science Center at the University of Massachusetts at Amherst has developed projections of changes in temperature, precipitation, and sea level rise for Massachusetts. This data is available through the Climate Change Clearinghouse for the Commonwealth at www.resilientma.org. By the end of the century, the average annual temperature in the Merrimack Drainage Basin is projected to rise by 5.12 to 9.39 degrees Fahrenheit (°F), including an increase in the number of days with temperatures over 90 °F from a minimum of 24.34 days and a maximum up to 61.19 days compared to the 1971-2000 baseline period. During the same time span, the average annual precipitation is projected to increase by a minimum of 3.98 to a maximum of 4.37 inches, which may be associated with more frequent and intense storm events. The Massachusetts State Hazard Mitigation & Climate Adaptation Plan (2018) may provide additional data and resources applicable to the project site. I encourage the Proponent to consider future climate change conditions as the design of the project is finalized and proceeds to permitting, including potential changes to the water level and flow velocities within the river channel.

Construction Period

According to the ENF, project construction is intended to occur during the fall of 2020 over the course of week, during a period of low flow in order to eliminate the need for dewatering. However, should water accumulate in the work area, the ENF states this will be removed by pumping, as necessary. Should high flows be predicted, all loose equipment and materials will be removed from the work zone, the work site will be secured, and work will be suspended until flows subside. The ENF states construction sequence will generally proceed in five (5) phases: staking of the proposed limit of disturbance and limit of erosion controls; installation erosion controls and containment measures as needed; establishment of a temporary staging/access area; construction of the concrete pad; installation and testing of the eel lift structure; removal of any erosion control measures and restoration of access/staging area to its former condition.

The construction site is proposed to be accessed by the property adjacent to the north abutment of the dam, which is comprised of an open mowed area. A crane, parked at this location, will lift materials down into the channel. To construct the concrete pad, the concrete will be pumped through a tube from the abutment down to the work area if possible; however, if the distance is too far, a drum mixer and pallet of concrete bags will be lifted down into the channel using the crane. To gain access to the bedrock ledges at the base of the abutment, personnel will enter the channel from the Lawrence State Park boat launch downstream of the project site.

All construction activities should be managed in accordance with applicable MassDEP’s regulations regarding Air Pollution Control (310 CMR 7.01, 7.09-7.10), and Solid Waste Facilities (310

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CMR 16.00 and 310 CMR 19.00, including the waste ban provision at 310 CMR 19.017). The project should include measures to reduce construction period impacts (e.g., noise, dust, odor, solid waste management) and emissions of air pollutants from equipment, including anti-idling measures in accordance with the Air Quality regulations (310 CMR 7.11). I encourage the Proponent to require that its contractors use construction equipment with engines manufactured to Tier 4 federal emission standards, or select project contractors that have installed retrofit emissions control devices or vehicles that use alternative fuels to reduce emissions of volatile organic compounds (VOCs), carbon monoxide (CO) and particulate matter (PM) from diesel-powered equipment. Off-road vehicles are required to use ultra-low sulfur diesel fuel (ULSD). If oil and/or hazardous materials are found during construction, DCR should notify MassDEP in accordance with the Massachusetts Contingency Plan (310 CMR 40.00). All construction activities should be undertaken in compliance with the conditions of all State and local permits.

Conclusion

The ENF has adequately described and analyzed the project and its alternatives, and assessed its potential environmental impacts and mitigation measures. Based on review of the ENF and comments received on it, and in consultation with State Agencies, I have determined that an EIR is not required.

October 9, 2020 ______Date Kathleen A. Theoharides

Comments received:

09/29/2020 Massachusetts Department of Fish and Game (DFG), Division of Marine Fisheries (DMF)

KAT/ELM/elm

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The Commonwealth of Massachusetts Division of Marine Fisheries 251 Causeway Street, Suite 400, Boston, MA 02114 p: (617) 626-1520 | f: (617) 626-1509 www.mass.gov/marinefisheries

CHARLES D. BAKER KARYN E. POLITO KATHLEEN A. THEOHARIDES RONALD S. AMIDON DANIEL J. MCKIERNAN Governor Lt. Governor Secretary Commissioner Director

September 29, 2020

Kathleen A. Theoharides, Secretary Executive Office of Energy and Environmental Affairs ATTN: MEPA Office, Eva Murray 100 Cambridge Street, Suite 900 Boston, MA 02114

RE: EEA#16265 Environmental Notification Form

Dear Secretary Theoharides:

Massachusetts Division of Marine Fisheries (MA DMF) staff have reviewed the Environmental Notification Form (ENF) submitted by the Essex Company, LLC, for the Lawrence Hydroelectric Project Proposed Eel Lift regarding the project’s impacts to marine fisheries resources and habitats. The eel lift will require the installation of a 16sf concrete pad at the base of the Essex Dam to provide surface for the eels approaching the lift. The project is designed to improve fish passage and is expected to enhance migratory and spawning habitat for American eel (Anguilla rostrata). MA DMF and MA Division of Fisheries and Wildlife (MA DFW) are collaborators on this fish passage project and have been working on fish passage plans for the north end of the Essex Dam for several years.

The proposed eel lift would result in permanent impact to the Merrimack River due to the concrete pad proposed at the base of the lift. The Merrimack River provides essential habitat for the passage, spawning, and early development of diadromous fish species including American eel, American shad (Alosa sapidissima), alewife (Alosa pseudoharengus), blueback herring (Alosa aestivalis), rainbow smelt (Osmerus mordax), and white perch (Morone americana). The maximum possible TOY restrictions for the Merrimack River extend from March 1st thru July 15th and September 1st thru November 15th. Increased sedimentation or turbidity resulting from shoreline projects, as well as in-water work, can negatively impact diadromous fish passage, spawning, and early development in adjacent habitat [1].

MA DMF provides the following comments for your consideration.

• MA DMF does not recommend a TOY restriction for the proposed work. DMF concurs with the proponent’s intention to accomplish all work during a low flow period when the project site will not require dewatering. MA DMF also concurs with the proponent’s intention to utilize erosion control best management practices, such as silt socks, to minimize turbidity impacts in the adjacent Merrimack River during construction. • As noted in the ENF, the applicant is expected continue to coordinate with MA DMF in order to receive the required MA DMF Fishway Construction Permit and MA DMF approval of the Operation and Maintenance plan pursuant to M.G.L. c. 130 §§ 1 and 19, and 322 CMR 7.01(4)(d) and (14)(m). • MA DMF supports the preferred alternative for the eel lift design outlined in the ENF.

Thank you for considering our comments. Questions about this review may be directed to Forest Schenck in our Gloucester office at [email protected].

Sincerely,

Daniel J. McKiernan Director

DM/FS/sd Cc. J. Griffiths, PE, Gomez and Sullivan Engineers, DPC R. Boeri, CZM B. Newman, ACOE B. Gahagan, MA DMF B. Chase, MA DMF K. Frew, MA DMF

References: [1] Evans, NT, KH Ford, BC Chase and JJ Sheppard (2011). Recommended Time of Year Restrictions (TOYs) for Coastal Alteration Projects to Protect Marine Fisheries Resources in Massachusetts. Technical Report DMF TR-47.