Secretary Gale Norton
United States Department of the Interior
1849 C Street, NW
Washington, D.C. 20240
Secretary Donald Evans
United States Department of Commerce
1401 Constitution Avenue, NW
Washington, D.C. 20230
Mr. Steven A. Williams, Director
United States Fish and Wildlife Service
Dr. William T. Hogarth, Director
NOAA Fisheries
November 12, 2004
Dear Secretaries Norton and Evans
and Directors Williams and Hogarth,
Pursuant to the United States Endangered Species Act, 16 U.S.C. §§ 1531-1544,
petitioners Timothy Allan Watts of South Middleborough, Massachusetts and
Douglas Harold Watts of Augusta, Maine submit the following Petition and
Appendices to the Departments of Interior and Commerce to list the American eel
(Anguilla rostrata) as endangered under the U.S. Endangered Species Act.
This petition is filed under 5 U.S.C. § 553(3) and 50 C.F.R. part 424.14.
Sincerely,
Timothy Allan Watts
633 Wareham Street
South Middleborough, Massachusetts 02346
Douglas Harold Watts
Post Office Box 2473
Augusta, Maine 04338
PETITIONERS:
Timothy Allan Watts
633 Wareham Street
South Middleborough, MA 02346
Douglas Harold Watts
P.O. Box 2473
Augusta, ME 04338
Petitioners request the United States Fish and Wildlife Service (USFWS) and the
National Marine Fisheries Service (NMFS) list the American eel (Anguilla
rostrata) as endangered under the United States Endangered Species Act, 16
U.S.C. §§ 1531 - 1544. This petition is filed under 5 U.S.C. § 553(e) and 50
C.F.R. part 424.14.
I. STATUS OF THE AMERICAN EEL
The American eel is in steep decline across its range in the
A. Life History of the American Eel
Morgan (1930) states:
"American eel are snake-like fishes which live in fresh water from their
early youth to breeding time and then migrate into salt water, never to return
again. The eels which come up the streams are the young ones of another
generation which have traveled the long and unknown way from the sea.
"Full grown eels are about three feet long, plain colored, greenish brown
above and pale greenish gray beneath. Every inch of their bodies is sinuous and
flexible, well earning the phrase 'squirms like an eel.'
"During their freshwater sojourn eels usually live on the muddy bottoms of
streams or in stream fed ponds. Although they generally seek deep streams they
often work their way up brooks along the coast. It is a surprising but not a
unique experience to catch an eel on the hook which is meant for a brook trout.
Sometimes eels come out of the water and hide under muddy stones in swampy
ground a few feet from the shores and they have been seen foraging on the sand
along the stream sides. Eels eat almost any animals dead or alive -- insect,
fishes, frogs and water-rats -- as well as aquatic plants.
"The life history of eels was not completely known until 1925 when Schmidt
published his studies of both American and European species. The breeding place
of American eels appears to be north of the
American eel are among the longest-living animals in North America and one of
longest-living fishes of
The executive summary of the Atlantic States Marine Fisheries Commission's
Interstate Fishery Management Plan for American Eel (2000) states:
"The American eel occupies and is exploited in fresh, brackish and coastal
waters along the Atlantic from the southern tip of Greenland to northeastern
The full text of the Atlantic States Marine Fisheries Commission's Interstate
Fishery Management Plan for American Eel (2000) provides a detailed description
of what is currently known of the life history, habits and habitat requirements
of the American eel. This Plan is included with this petition as Appendix A and
its contents are incorporated into this petition by reference.
B. Use of American Eel by Humans
Humans have watched, caught and eaten American eel living in the waters of
In 1991, a prehistoric wooden-stake fish weir was discovered at the mouth of
Alder Stream on
The location of the
The downstream "V" orientation of a prehistoric stone fish weir on
the
Dohne (2004) states of the
"Long before the rivers were dammed and polluted by the white man, the
American Indians were well-acquainted with the autumn migration of the eel.
Swatara, as in Swatara Twp. and Swatara Creek, is the anglicized word for a
Susquehannock Indian term meaning "where we eat eels." With a caloric
value six times that of any other freshwater fish, the
eel was a prized catch, tasting somewhat like chicken, though quite bony. It
was
smoked for winter and "travel" rations. Weirs, or V-shaped rock
formations pointing downriver, were fashioned to funnel migrating adult eels
into basketlike traps. In some stretches of the lower Susquehanna, remnants of
weirs can be spotted during low-water
conditions."
Eckstorm (1938) states that Kenduskeag Stream, a tributary of the Penobscot
River entering tidal waters at Bangor, Maine receives its name as an "eel
spearing place" in the Penobscot Indian language. Eckstorm states the name
of tidal stream on the
ASMFC (2000) states: "Since the early 17th century, Native Americans have
harvested eel for food and cultural sustenance. Today, commercial and
recreational fisheries for American eel are seasonal, but remain economically
important by providing both direct and indirect employment ... Since the
fishery's peak in the mid 1970s at 3.5 million pounds,
commercial landings have declined significantly to a near record low of 868,215
pounds in 2001. Recreational data concerning eel harvest appears to indicate a
decline in abundance. According to the NMFS Marine Recreational Fisheries
Statistics Survey, recreational harvest in 2001 was 10,805 eel, a significant
decrease from the peak of 106,968 eel in 1982."
ASMFC (2000) further states: "Harvest pressure and habitat loss are listed
as the primary causes of any possible historic and recent decline in abundance
of American eel (Castonguay et al. 1994a and 1994b). Several factors contribute
to the risk that heavy harvest may adversely affect eel populations: (1) American
eel mature slowly, requiring 7 to 30+ years to attain sexual maturity; (2)
glass eel aggregate seasonally to migrate; (3) yellow eel harvest is cumulative
stress, over multiple years, on the same year class; and (4) all eel mortality
is pre-spawning mortality."
C. Population Status of
American Eel
The American eel is in steep decline across its range in the
Dohne (2004) states: "
The number of juvenile eels counted annually at the Conowingo Dam on the
ASMFC (2000) states:
"Harvest pressure and habitat loss are listed as the primary causes of any
possible historic and recent decline in abundance of American eel (Castonguay
et al. 1994a and 1994b). Several factors contribute to the risk that heavy
harvest may adversely affect eel populations: (1) American eel mature slowly,
requiring 7 to 30+ years to attain sexual maturity; (2) glass eel aggregate
seasonally to migrate; (3) yellow eel harvest is cumulative stress, over
multiple years, on the same year class; and (4) all eel mortality is pre-spawning
mortality. Habitat losses have been a chronic problem since the arrival of the
Europeans. Blockage of stream access, pollution and nearshore habitat
destruction limit habitat availability for eel. Castonguay et al. (1994b)
indicated that oceanic changes may now also contribute to decline in eel
abundance. Busch et al. (1998) estimated that diadromous fish, dependent on
access to Atlantic coastal watersheds, may be hindered from reaching up to 84
percent of upstream habitats."
On August 14, 2003, eel biologists from 18 countries meeting in
This declaration was written at the 2003 International Eel Symposium, held in
conjunction with the 2003 American Fisheries Society Annual Meeting,
"The steep decline in populations of eels endangers the future of these
legendary fish. With less than 1 percent of major juvenile resources remaining,
precautionary efforts must be taken immediately to sustain these stocks. In
recent decades, juvenile abundance has declined dramatically; by 99 percent for
the European eel (Anguilla anguilla) and by 80 percent
for the Japanese eel (
"Eels, which depend on freshwater and estuarine habitats for their
juvenile growth phase, anthropogenic impacts (e.g. pollution, habitat loss and
migration barriers, fisheries) are considerable and may well have been
instrumental in prompting these declines. Loss of eel resources will represent
a loss of biodiversity but will also have considerable impact on socioeconomics
of rural areas, where eel fishing still constitutes a cultural tradition.
Research is underway to develop a comprehensive and effective restoration plan.
This, however, will require time. The urgent concern is that the rate of
decline necessitates swifter protective measures. As scientists in eel biology
from 18 countries assembled at the International Eel Symposium 2003 organized
in conjunction with the 2003 American Fisheries Society Annual Meeting in
According to official minutes of the March 29, 2004 meeting of the American Eel
Management Board of the Atlantic States Marine Fisheries Commission in
Alexandria, Virginia, Mr. Patrick Geer, Technical Committee chairman of the
American Eel Management Board, stated:
"You can see, basically, they've had very little or no recruitment for the
last nearly ten years at this point [in the St. Lawrence River system].
Typically, when the eels get to this area on the
"Dr. Casselman [Dr. John Casselman of the Canada Department of Fisheries
and Ocean] also performed a trend analysis on the
"The
"One of the tech members actually commented, 'It's pretty bad when someone
who doesn't live in your country has to analyze your data and tell you what's
wrong.' I think this kind of points that out."
"Bob Lang [member, Great Lakes Fisheries Commission] also went on to
encourage the Great Lakes basin states and provinces that have jurisdiction
over activities that kill eels, either by direct fishing mortality or through
hydroelectric dams -- they're passing through the turbines -- to restrict such
activities to the maximum extent practicable."
"
At the same March 29, 2004 meeting of the American Eel Management Board of the
Atlantic States Marine Fisheries Commission, Mr. Gordon Colvin, the New York
representative to the ASMFC, stated:
"I believe it would be appropriate for the board, and frankly, for the
Commission to express support to the U.S. Fish & Wildlife Service and to
the NMFS to undertake a review to consider and evaluate the appropriateness of
listing at least the Distinct Population Segment in the Great Lakes/St.
Lawrence/Lake Champlain/Richelieu River drainages for listing under the US ESA,
just as Canada is undertaking with respect to SARA.
"I would even go so far as to suggest that in the process of that review,
that the services consider a broader look at eel resources in the United
States, particularly in light of the fact that if the hypothesis suggested by
Dr. John Casselman and others, that a very substantial proportion of large
female eels that constitute perhaps as much as the majority or the bulk of the
female spawners for this panmictic population are vulnerable to recruitment
failure in the St. Lawrence system, that all of our resources may be at risk as
a result of that, and it's only a matter of time, if we're not already there.
"As has been indicated, that [St. Lawrence] population segment of eels is
absolutely in recruitment failure. There has essentially been no recruitment
for a decade, but there are still eels in the system. There are many year
classes of adult eels in the system.
"They are subject to mortality, particularly as they out-migrate thought
the hydroelectric dams on the St. Lawrence River and through commercial
intercept fisheries further down the river, mainly in
"Therefore there is some necessity, I think, perceived by the Canadian
fisheries authorities to address these sources of mortality in that those
out-migrating females may be all that they have left, given that there's ten missing year classes or so in the system now,
and they want to maintain what they can get. Those eels are important to us,
because they may well be, to put it simply, the mothers of most of our eels,
too."
At the same March 29, 2004 meeting of the American Eel Management Board of the
Atlantic States Marine Fisheries Commission, Mr. Lewis Flagg, the Maine
representative of the Atlantic States Marine Fisheries Commission, stated:
"It seems to me that from the Technical Committee's presentation, that
there is a pretty serious resource problem out there, not just for Canada but
for the states also, so since the commission does have an American Eel Management
Plan, I think it does demand our attention."
At the same March 29, 2004 meeting of the American Eel Management Board of the
Atlantic States Marine Fisheries Commission, Mr. Eric Smith, the Connecticut
representative of the Atlantic States Marine Fisheries Commission, stated:
"I just want to see that the issue doesn't languish until such time as
five years from now, we say, okay, now we've got some landings [data] and can
deal with it. This thing has been troubling for some time now that you look at
the slides."
On March 10, 2004 the American Eel Management Board of the Atlantic States
Marine Fisheries Commission (ASMFC) issued a press release recommending the
protection of American eel under the United States Endangered Species Act. The
statement reads in part:
"Canadian and
Despite this declaration in March 2004, the Atlantic States Marine Fisheries
Commission has failed to reduce or prohibit the ongoing harvest of American eel
from the waters of the Atlantic seaboard of the
D. Anthropogenic Impacts on American Eel
1. Upstream Passage at Dams
Female American eels spend most of their lives in freshwater habitat along the
Atlantic seaboard prior to returning to the
ASMFC (2000) states: "By region, the potential habitat loss [for American
eel] is greatest (91 percent) in the North Atlantic region (
The Maryland Department of Natural Resources, MBSS Newsletter March 1999,
Volume 6, Number 1 states:
"The most dramatic example of the decline of American eel abundance is dam
construction on the
"The magnitude of this loss is corroborated by the decline in the eel weir
fishery in the
2. Downstream Passage at Dams
Female American eels spend 20 to 50 years in freshwater habitat along the
Atlantic seaboard before returning to the Sargasso Sea to give birth. Safe and
efficient access for pregnant female American eels from their freshwater
habitat to the Atlantic Ocean is essential for female American eel to give
birth in the
Records of severe kills of female American eels by the turbines of
hydro-mechanical and hydroelectric dams exist since as early as the 1880s. A
corporate history of the S.D. Warren Paper Company describes severe kills of
female American eels at the company's dam at
"Water power had its peculiar troubles: every cold winter morning
anchor ice would clog in the intakes, and the mill would be down. Then when
warm weather came, the water would be full of eels and eels are fish with tough
hides. The blades of the water wheels would not chew them up and there are
frequent entries in the record stating the water supply had failed and the mill
was down, because the eels had stopped the wheels."
One hundred years later, a similar report was made in 1996 by the operator of
the Damariscotta Mills hydro-electric dam on the
"Subject: Eels
Telephone Record.
Lew Flagg told me in a telephone conversation on Saturday night that eels had
stopped the project at Damariscotta Mills from operating and set off the alarm.
He was told this by the plant operator. The event happened in October. He said
the eels clogged the project as they were migrating downstream.
Alex Hoar."
Hydro-electric dams located on the coastal watersheds of the Atlantic seaboard
are a major source of mortality for female American eel as they attempt to
migrate from freshwater to the
Radio tagging studies of migrating female American by the Maine Department of
Marine Resources at two hydro-electric dams in Maine indicate nearly 100
percent of adult female eels entering project turbines are killed or severely
injured and, therefore, unable to complete their spawning migration (MDMR
2002).
ASMFC (2000) states: "Downstream passage to the American eel's historic
habitat is just as important as successful upstream access. Therefore, turbine
induced mortality during downstream passage needs to be resolved since it
impacts prespawning adult silver eel."
A summary of two meetings held with
"Many eel harvesters commented on the loss of large numbers of
migrating eels at power generating turbines on rivers. Apparently eels are
attracted to the current drawn by the turbines while migrating at night. One
eel weir operator has, as result of legal action, an agreement with a dam
operator to cease generating after dark from mid-August to mid-October, the
prime time for migrating eels."
Petitioners have direct experience with the magnitude of mortality to female
American eel caused by hydro-electric dam turbines.
In recent years, severe kills of migrating adult American eel have been repeatedly
documented by the Petitioners and the Maine Department of Marine Resources at
the American Tissue hydro-electric dam on Cobbosseecontee Stream in
Reconstruction of the Pumpkin Hill hydro-electric dam on the
Radio-tracking of adult American eels by the Maine Department of Marine
Resources just above the Lockwood hydro-electric project on the Kennebec River
during fall 2002 indicates that 40 percent or more of the adult American eel
attempting to migrate past the Lockwood Project each fall are entrained and
killed in the Lockwood Dam turbines, despite the availability of the project
spillway for passage (MDMR 2003).
Radio-tracking of adult female American eels by the Maine Department of Marine
Resources (Maine DMR) at the Benton Falls Project in 2000 and 2001 indicate
more than 50 percent of the migrating eels attempting to pass the
"DMR personnel attempted to recover these eels on five occasions (10/22,
10/26, 10/31, 11/2, 12/7). An underwater camera revealed a deep hole below the
tailrace that contained many portions of eel carcasses in various states of
decay. It was apparent these eels had been killed by turbine blades
.... Based on two years data, the surface bypass at
In October 2004, Petitioners documented a large and severe kill of migrating
female American eel at the
The kill was first observed and documented by Douglas Watts of Friends of the
Kennebec Salmon at 6:45 a.m. on October 14, 2004. Mr. Watts observed and
photographed 25-30 large female American eels in various states of
decomposition on the river bottom immediately below the Benton Falls Project
turbine outfall. All of the eels bore wounds and injuries indicative of turbine
blade strike (ie. decapitation, severed and partially severed torsos). Most of
the eels observed were 3-4 feet in length. Four bald eagles were observed
directly below the dam actively feeding on decapitated eels. Mr. Watts
collected two large freshly killed eels to display for officials of the Maine
Department of Environmental Protection and the Maine Department of Marine
Resources. During these collection efforts, two employees of Benton Falls
Associates working at the dam were shown the eels by Mr. Watts. Mr. Watts
informed the employees the decapitated eels had been killed by the dam turbines
and were just a small fraction of those he had just observed lying dead on the
river bottom below the dam. One Benton Falls Associates employee told Mr. Watts
the eels were killed by seagulls, not the dam turbines. One employee informed
Mr. Watts that he was trespassing. Project turbines were running at the time of
Mr. Watts' visit to the site and there was no spill at the dam. All river flow
was exiting through the project turbines and the surface bypass for juvenile
alewives and shad. Despite that the surface bypass was
in operation at the time of his visit, Mr. Watts observed and photographed
numerous freshly decapitated juvenile alewives below the dam as well.
All photographs taken can be viewed at www.kennebecriver.org.
On Friday, October 15, 2004 Mr. Nathan Gray of the Maine Department of Marine
Resources accompanied Mr. Watts to the
Mr. Gray's October 15, 2004 report to his superiors reads as follows:
"-----Original Message-----
From: Gray, Nate
Sent: Friday, October 15, 2004 4:09 PM
To: Squiers, Tom; Wippelhauser, Gail; Glowa, John M
Subject: Benton Eel kill
Returned to the tailrace of Benton Fall Hydroelectric facility this PM with
Doug Watts after he reported a significant eel kill having happened sometime
prior to 10/14/04. Using chest waders we inspected the tailrace outfall and
found there were at least a few hundred eels killed over the past few weeks.
Eels ranged from highly decomposed to cripples unable to
swim. A bald eagle was noted taking off with eel remains. Nearly all sections
of the tailrace that were wadeable contained the remains of adult eels that
appeared to have been killed by turbine blade strike. Calvin Neal, the station
operator had reduced flows to the turbine in order to more efficiently utilize
water resources in generating electricity. This may account for the eels that
were found that appeared whole but were nevertheless dead. On 10/14/04 I
performed a routine downstream inspection of the site and was informed by Mr.
Neal that a certain person in the form of Douglas Watts had come to the site
and was very upset that there were dead eels below the project. I asked Mr. Neal
to accompany me on an inspection walk down in the tail waters to see if there
were any eels or alewives that had been entrained and killed by the turbine.
Viewing conditions were less than ideal but I did note that there appeared to
be a few dead eels in the tailrace. One in particular was quite visible. Having
no chest waders with me I told Mr. Neal that I would return on 10/15/04 to
confirm the presence of the eel(s) in the project tailwaters. Mr. Watts visited
the office on the morning of 10/15/04 and told what he had seen below the
Immediately after this October 15, 2004 inspection, Mr. Gray
informed Mr. Calvin Neal, the dam operator, that the river bottom below the dam
contained several hundred dead eels which had been recently killed by the
project turbines. Despite being provided with this information, Mr. Neal
did not offer to shut down the project turbines.
On August 20, 2004 Petitioners filed a motion before the Federal Energy
Regulatory Commission requesting the Commission require the Benton Falls Dam
owner to provide safe passage for female American eels at the dam during the
fall 2004 eel migration season. The Commission refused.
On October 16, 2004 Petitioners and Friends of Merrymeeting Bay filed
complaints before the Federal Energy Regulatory Commission of an ongoing severe
kill of female American eels at the dam and requested the Commission require
the
On October 18, 2004 the State of
On October 19, 2004 the State of
The website of the
"We are committed to developing renewable hydroelectric power and green
power while responsibly guarding and maintaining precious natural
resources."
The turbines of the
Petitioners have been informed by staff of the U.S. Fish & Wildlife Service
that large kills of migrating female American eel have been documented in
recent years by USFWS staff at the Holyoke Dam, the lowermost hydro-electric
dam on the Connecticut River (Alex Haro, USFWS, personal communication to
Timothy A. Watts, October 2004). The Connecticut River is the largest watershed
in
3. Toxic Contaminants
ASMFC (2000) states:
"American eel are benthic, long-lived and lipid rich. Therefore, American
eel can accumulate high concentrations of contaminants, potentially causing an
increased incidence of disease and reproductive impairment as is found in other
fish species (Couillard et al. 1997). An analysis of the contaminants in
migrating silver eel in the
4. Human Harvest
Throughout their range in North America and the United States of America,
American eel are intensively harvested at all life stages (glass eel, elver
eel, yellow eel and silver eel) upon their entering coastal and freshwater
habitats in the United States of America.
ASMFC (2000) states:
"Since the early 17th century, Native Americans have harvested eel for
food and cultural sustenance. Today, commercial and recreational fisheries for
American eel are seasonal, but remain economically important by providing both
direct and indirect employment ... Since the fishery's peak in the mid 1970s at
3.5 million pounds, commercial landings have declined
significantly to a near record low of 868,215 pounds in 2001. Recreational data
concerning eel harvest appears to indicate a decline in abundance. According to
the NMFS Marine Recreational Fisheries Statistics Survey, recreational harvest
in 2001 was 10,805 eel, a significant decrease from the peak of 106,968 eel in
1982."
Geer (2004) stated: "
II. CRITERIA FOR ENDANGERED SPECIES ACT LISTING.
USFWS and NMFS are required to determine, based solely on the basis of the best
scientific and commercial data available, whether a species is endangered or
threatened because of any of the following factors: (1) the present or
threatened destruction, modification, or curtailment of its habitat or range;
(2) overutilization for commercial, recreational, scientific or educational
purposes; (3) disease or predation; (4) the inadequacy of existing regulatory
mechanisms; or (5) other natural or manmade factors affecting its continued
existence. 16 U.S.C. §1533(a)(1) and 1533(b).
Petitioners provide evidence below showing that all of these factors are acting
in concert to cause the precipitous decline of American eel in the United
States of America, thus warranting the species' protection under 16 U.S.C. §§
1531 - 1544.
1. THE PRESENT OR THREATENED DESTRUCTION, MODIFICATION OR CURTAILMENT OF THE
SPECIES' HABITAT AND RANGE.
At least 84 percent of the freshwater habitat of the American eel in the
Female American eels spend most of their lives in freshwater habitat along the
Atlantic seaboard prior to returning to the
ASMFC (2000) states: "By region, the potential habitat loss [for American
eel] is greatest (91 percent) in the North Atlantic region (
Of 15,570 dams blocking American eel habitat in the
The Maryland Department of Natural Resources, MBSS Newsletter March 1999,
Volume 6, Number 1 states:
"The most dramatic example of the decline of American eel abundance is dam
construction on the
"The magnitude of this loss is corroborated by the decline in the eel weir
fishery in the
The number of juvenile eels counted annually at the Conowingo Dam on the
Dohne (2004) states: "As for elvers, the local evidence is equally thin
but just as bleak. At York Haven's dam -- whose fish ladder is the only one on
the lower Susquehanna to specifically monitor eel traffic -- no elvers appeared
during this spring's shad run (April through mid-June)."
2. OVERUTILIZATION FOR COMMERCIAL, RECREATIONAL, SCIENTIFIC OR
EDUCATIONAL PURPOSES
It is undisputed that overutilization of American eel
is now occurring across the species' range in the
ASMFC (2000) further states: "Since the fishery's peak in the mid 1970s at
3.5 million pounds, commercial landings have declined significantly to a near
record low of 868,215 pounds in 2001. Recreational data concerning eel harvest
appears to indicate a decline in abundance. According to the NMFS Marine
Recreational Fisheries Statistics Survey, recreational harvest in 2001 was
10,805 eel, a significant decrease from the peak of 106,968 eel in 1982."
Geer (2004) states: "
Colvin (2004) states that the Province of Ontario intends to ban all harvest of
American eel in that portion of the St. Lawrence River system under its
jurisdiction due to juvenile recruitment failure to the St. Lawrence system
during the past decade.
Records of the Atlantic States Marine Fisheries Commission (ASMFC) show the Commission has failed to undertake similar
protective measures for the remaining American eels living along the Atlantic
seaboard of the
3. INADEQUACY OF EXISTING REGULATORY MECHANISMS
There are no regulatory mechanisms in the
a. The United States Fish and Wildlife Service (USFWS)
Pursuant to Section 18 of the Federal Power Act, the United States Fish and
Wildlife Service has the legal authority to require the licensees of private
hydro-electric dams to provide safe and efficient upstream and downstream
passage for American eel at hydro-electric dams in the historic range of
American eel in the United States of America.
To date, the USFWS has declined to exercise this legal authority in order to
conserve the remaining American eels of the Atlantic seaboard of the
b. The National Marine Fisheries Service (NMFS)
Pursuant to Section 18 of the Federal Power Act, the National Marine Fisheries
Service has the legal authority to require the licensees of private
hydro-electric dams to provide safe and efficient upstream and downstream
passage for American eel at hydro-electric dams in the historic range of
American eel in the United States of America.
To date, the NMFS has declined to exercise this legal authority in order to
conserve the remaining American eels of the Atlantic seaboard of the
c. The Federal Energy Regulatory Commission (FERC)
Pursuant to the Federal Power Act, the Federal Energy Regulatory Commission has
the legal authority to require licensees of private hydro-electric dams to
provide safe and efficient upstream and downstream passage for American eel at
hydro-electric dams in the historic range of American eel in the United States
of America.
To date, the Federal Energy Regulatory Commission has declined to exercise this
legal authority in order to conserve the remaining American eel stocks of the
Atlantic seaboard of the
d. The United States Environmental Protection Agency (US EPA)
Pursuant to the federal Clean Water Act, the U.S. Environmental Protection
Agency has the legal authority to require the licensees of private
hydro-electric dams to provide safe and efficient upstream and downstream
passage for American eel at hydro-electric dams to allow these waters to meet
their designated uses for fishing and habitat for aquatic species as required
under the federal Clean Water Act.
To date, the U.S. EPA has declined to exercise this legal authority in order to
conserve the remaining American eels of the Atlantic seaboard of the
e. Atlantic States Marine Fisheries
Commission (ASMFC)
Pursuant to the federal Magnuson-Stevens Fisheries Conservation Act, the
Atlantic States Marine Fisheries Commission has the legal authority to limit or
prohibit the harvest of American eel along the Atlantic seaboard of the
To date, the ASMFC has declined to exercise this legal authority to conserve
the remaining American eels of the Atlantic seaboard of the
On March 10, 2004 the American Eel Management Board of the Atlantic States
Marine Fisheries Commission (ASMFC) issued a press release recommending the
protection of American eel under the United States Endangered Species Act. The
statement reads in part:
"Canadian and
Despite this statement in March 2004, the Atlantic States Marine Fisheries
Commission has not reduced or prohibited the ongoing harvest of all life stages
of American eel from the waters of the Atlantic seaboard of the
f. The States of the Atlantic Seaboard
Petitioners reside in the
In the State of Maine, the petitioners have in recent years repeatedly
documented and alerted State of Maine officials to severe kills of
out-migrating pregnant, female American eel at several hydro-electric dams in
the State. The cause of death of these eels is entrainment in hydro-electric
dam turbines. This entrainment and death is caused by the lack of safe passage
for adult American eels at these hydroelectric dams. Petitioners were informed
by the State of
This determination is stated in an October 18, 2004 e-mail by Mr. Dana P. Murch
of the Maine Department of Environmental Protection:
-----Original Message-----
From: Murch, Dana P
Sent: Monday, October 18, 2004 2:42 PM
To: Fisk, Andrew C; Kavanah, Brian W
Cc: Merrill, Dennis L
Subject: Benton Falls eel kill
I met today at DMR to discuss the Benton Falls eel kill situation with
Commissioner George Lapointe, Deputy Commissioner David Etnier, DMR staff
(Tom Squiers & Gail Wippelhauser), and Mark Randlett of the AG's Office.
It was acknowledged that the dam owner (Benton Falls Associates) is not
currently in violation of either its FERC license or its DEP water quality
certification for the project, both of which have eel passage provisions
based on the 1998 KHDG Agreement. Under the terms of the Agreement, DMR
is still studying "the appropriate permanent downstream eel passage
measures to apply" to the project.
Commissioner Lapointe will take the lead in requesting that the dam owner
voluntarily cease project generation at night during the eel migration
season. It will be acknowledged to the dam owner that this request goes
beyond the current requirements of the KHDG Agreement. If consensus is
not reached with the dam owner, DMR retains the option, under the KHDG
Agreement, of petitioning FERC to amend the project license to insert
appropriate conditions for eel passage.
Commissioner Lapointe will also take the lead in setting up a meeting with
the entire
participate in this discussion.
Dana
------------
In June 2003, Petitioners successfully moved by hand and plastic shopping bag
more than 5,000 elver American eels over the impassable Fort Halifax Dam on the
Subsequent to this event, Petitioners were informed by the State of Maine in
the fall of 2003 and 2004 that severe kills of adult female eels at several
hydroelectric dams in Maine, documented and reported by the Petitioners, are
legal and allowable under Maine law.
During the past five years, Petitioners have directly observed and documented
the inability of hundreds of thousands of glass eels to pass the abandoned
Horseshoe Pond dam located in the tidal waters of the
Over the past five years, Petitioners have repeatedly requested that officials
of the
Petitioners are not aware of any instance in
Petitioners are not aware of any instance in
Petitioners are not aware of any Atlantic states other than
4. OTHER NATURAL OR MANMADE FACTORS AFFECTING ITS CONTINUED EXISTENCE.
ASMFC (2000) states:
"American eel are benthic, long-lived and lipid rich. Therefore, American
eel can accumulate high concentrations of contaminants, potentially causing an
increased incidence of disease and reproductive impairment as is found in other
fish species (Couillard et al. 1997). An analysis of the contaminants in
migrating silver eel in the
III. CONCLUSION
American eel are virtually unique from other animals in that they give birth
only once in their lives, in the
The government of the
Under the authority of the Federal Power Act, the Federal Energy Regulatory
Commission can immediately stop the killing for adult female American eel in
the turbines of the 1,100 hydro-electric dams blocking the migration of American
eel in the
Under the authority of the Magnuson-Stevens Fisheries Conservation Act, the
Atlantic States Marine Fisheries Commission can immediately prohibit the
harvest of American eel in the waters of the
Neither federal entity has done so -- despite clear evidence these actions are
warranted by the precipitous decline of the American eel in
The United States Congress and President Richard M. Nixon created the
Endangered Species Act as the last resort for animals and plants nearing
extinction -- and as the last resort for citizens of the United States trying
to save their fellow creatures from extinction.
The American eel is now in danger of extinction throughout its range in the
United States of America and, therefore, is endangered within the meaning of
the United States Endangered Species Act, 16 U.S.C. § 1532(6).
12 November 2004
Timothy Allan
633
South
Douglas Harold Watts
IV. REFERENCES CITED
Atlantic States Marine Fisheries Commission. 2000. Interstate Fishery
Management Plan for American Eel (
Busch, W.D.N., S.J. Lary, C.M. Castilione and R.P. MacDonald.
1998. Distribution and Availability of Atlantic Coast Freshwater Habitat for
American Eel (
Colvin, Gerald. Minutes of March 29, 2004 Atlantic State Marine
Fisheries Commission meeting.
Dohne, Douglas. 2004. "Are We Seeing the End of the American Eel?" Patriot-News,
Eckstorm, F.H. 1938.
Geer, Patrick. Minutes of March 29, 2004 Atlantic State
Marine Fisheries Commission meeting.
Maine Department of Marine Resources. 2001, 2002, 2003.
Maryland Department of Natural Resources, MBSS Newsletter
March 1999, Volume 6, Number 1.
Morgan, Ann Haven. 1930. Field Book of Ponds and Streams: An Introduction to
the Life of Fresh Water. G.P. Putnam's Sons.
V. APPENDICES (on CD-ROM)
a.
b. The
c. Photographs taken by Petitioners of pregnant, female American eels killed at
hydro-electric dams in