The turbine at Fosstveit power plant in Agder has killed several hundred kilos of fish since the start in 2008. news has shown pictures of piles of chopped eels, and asked why the fish deaths may continue. The answer has been that the State has granted the power plant a license exemption, and thus deprived itself of the authority to intervene by force. But that is not correct, says professor of environmental law Ole Kristian Fauchald at the University of Oslo. – The state broke the law First, the state had a duty to stop the fish death, regardless of the license exemption, Fauchald believes. “Both the energy authority and the environmental authority could have intervened,” says Fauchald. He refers to the provisions of the Biodiversity Act, the Water Regulations and the Dam Safety Regulations. Second, the licensing exemption was in itself illegal, and thus invalid, according to Fauchald. – The power plant is located in a protected watercourse, and was clearly subject to a license under the Water Resources Act, he says. Law professor Ole Kristian Fauchald works a lot with environmental law. Photo: Christine Fagerbakke / news The solution exists There are solutions that can get the fish safely past turbines in power plants. One of these has just been taken into use at the Palmafossen power plant in Voss. Here the fish is led along a grate, to escape openings in the dam. Photo: Voss Energi / NORCE / Mohn Technology The fish-friendly solution is designed in collaboration between engineers and biologists. The goal is 100 percent survival for the fish. The first test run this spring has shown that no fish end up in the turbine. No one is pushed to death against the grate either. Here is the dam at Palmafossen power plant. To the left of the picture are the escape openings for fish. This is the turbine at the power plant. This is the fish to avoid. Photo: Morten Kraabøl / Multiconsult A grate in front of the turbine stops the fish. With 12 mm between the stakes, not the smallest fry pass by. The grate leads the fish to escape openings in the dam. Photo: Ulrich Pulg / NORCE The escape openings take the fish to the safe side of the river. But first, people from NORCE must count the living and the dead. Photo: Christine Fagerbakke / news The measure was not voluntary at Palmafossen either. That was a demand from NVE. Without safe fishing migration, the power plant would not receive a license. The price tag was NOK 19.3 million. At Fosstveit, it is estimated at between 2.9 and 3.5 million. These turbine-killed eels were found by diving in the river below Fosstveit power plant on October 25, 2013. Photo: Frode Kroglund / NIVA Who should pay If the power plant is without a license, coercive measures from the State can lead to a settlement of the bill, says law professor Ole Kristian Fauchald. If the State stops operations to save the fish, they risk lawsuits from the power plant. – The state may be liable to the power plant owner, as a result of the mistake that was made with the license exemption, Fauchald says. The power plant has collaborated on voluntary measures. But that was not enough to stop the fish deaths. Systematic collection and counting of turbine-killed eels no longer takes place. But volunteers still find the eel corpses. This picture is from 18 November 2021. Photo: Christine Fagerbakke / news Fosstveit operates legally According to NVE, Fosstveit is a «legally existing facility». NVE believes that they do not have the authority to intervene as long as the license exemption lasts. Therefore, they called Fosstveit in for a license. And in 2019, the license was granted, with strict requirements: The power plant had to be rebuilt. But then something happened. The supreme energy authority, the MPE, believed that NVE had used the wrong legal authority. Result: The power plant is again without a license. How in the world could that happen? Follow the process step by step – and move back to the beginning: The Storting approved lasting protection against power development in the watercourse. Landowners want to start power production on Fosstveit. He asks if this will be in conflict with the protection decision. NVE says the Storting’s protection of the watercourse means that Fosstveit cannot get a license. NVE will also not recommend a license exemption. “We (..) believe this procedure is questionable legally. (..) Here one turns away from the legal issue by calling for the measure to be implemented in such a way that treatment under the Watercourses Act will not be necessary.” “The Ministry of Petroleum and Energy has (..) come to the conclusion that a resumption of power production at Fosstveit will not conflict with Conservation Plan III. ” The Ministry believes that a license is not necessary, and recommends an exemption. The precondition is that a fishing ladder is built, and that the river receives a minimum water flow. § 34. (power development in protected watercourses) No one must carry out power development in violation of the Storting’s decision on protection of watercourses. All plans for power developments in protected watercourses must be reported to the watercourse authority for assessment before implementation of the measure. “Permission to establish the power plant has already been granted (…) NVE concludes that the preconditions on which the permit for resumption of power plant operations dated 15.12 .1992 is taken care of. “Norway joins the EU Water Framework Directive. The state thus has a duty to work for good ecological status in its rivers. In rivers where this cannot yet be achieved without significantly affecting socially beneficial interventions, the river is given the status of heavily modified (SMVF). It does not exempt countries from improving the situation. Read more about the EU’s water directive here: https://www.vannportalen.no/regelverk-og-foringer/vanndirektivet/The same autumn, large quantities of cut eel are found in the river below. In the spring, juvenile fish of salmon and aura are also found turbine killed. Due to the license exemption, NVE can not impose measures on the power plant to stop the fish death. The owners collaborate with the research and the authorities on voluntary solutions. “Too much fish is still dying in the turbine.” The background (..) is that the authorities do not have the necessary tools to solve the problem of fish migrations for eels and salmonids past the power plant, with the current license-free facilities. ” The power plant must apply for a license to be allowed to continue operations. In the license, NVE imposes strict requirements on the power plant to stop the death of fish in the turbine. Among other things, a new intake grille will be built which will have a light opening no larger than 15 mm. The conversion must be completed by 31.12.2021. The Ministry believes that NVE used the wrong legal authority when they called in Fosstveit for licensing. The result is that the plant is still without a license. The MPE nevertheless assumes that the power plant implements the measures voluntarily. Show more According to the MPE, Fosstveit power plant thus has a license exemption. But law professor Ole Kristian Fauchald says the MPE is wrong, and that NVE’s license from 2019 undoubtedly applies. If this is true, Fosstveit has a duty to rebuild the power plant, and pay the bill himself. news has asked the owner company Bekk og Strøm if they will carry out the conversion voluntarily, and bear the cost themselves. The company has not answered either yes or no to this. See answers from Bekk and Strøm and the ministry at the bottom of the case. More power and more fish! – When the authorities make demands, we find the good solutions, says project and development manager Yngve Tranøy in Voss Energi. For Palmafossen, the coercive measure became a sunshine story. Because of the grate that saves the fish, they had to build a much larger intake. The result is tenfold power production. With record high electricity prices, profitability is good. – We had expected to spend 40 years on repayment, but with these electricity prices we can do it in half the time, says Tranøy. Waiting for an answer In the river below the power plant at Fosstveit stands Werner Grov in Storelva river owner team. For 14 years he has been waiting for a solution. He has not given up hope. Meanwhile, he and other volunteers continue to work to save fish past the turbine, one by one. And count the dead. Photo: Christine Fagerbakke / Christine Fagerbakke The Ministry of Petroleum and Energy (MPE) does not respond to the criticism from law professor Ole Kristian Fauchald. news will also not receive an answer as to what the MPE will do if the owner company Bekk og Strøm does not voluntarily carry out the necessary rebuilding: “Now important work is underway to rebuild the power plant to take care of the fish. The Ministry is aware that NVE has recently received a plan for the conversion of the Fosstveit power plant. It will now be quality assured and NVE will check whether it is in line with the guidelines given by NVE in 2019. » Answer from the Ministry of Petroleum and Energy Question: Why did Fosstveit power plant initially receive a license exemption? Answer: The Fosstveit power plant in Vegårshei was in operation until 1970. The Vegår watercourse was protected in Conservation Plan III in 1986. In 1992, the MPE assumed that power production at Fosstveit could be resumed without a license without conflicting with the conservation values in the watercourse. Prerequisites were set for a fish ladder, minimum water flow and a requirement to repair the intake dam. Question: How did this affect the possibility of intervening when the start-up resulted in extensive fish deaths in the power plant? Answer: The Fosstveit power plant was completely rebuilt in 2008. Based on the above assumptions, it was assumed that no intervention was needed. Question: Why did NVE / OED not stop operations at the power plant, neither then nor later? Answer: NVE, together with the Norwegian Environment Agency, financed surveys in the watercourse in the period 2010 – 2013. The surveys aimed to reduce disadvantages for anadromous fish and eels as a result of power plant operations. The focus was on finding solutions, and not stopping operations. The MPE had no role in the case before the ministry received the appeal in 2019. Question: Why did it take several years before NVE called in the power plant for licensing? Answer: That question is most natural to address to NVE, but the Ministry understands that NVE awaited the investigations. NVE was in dialogue with the company during the years 2008-2015 and followed the research that was done. Question: NVE granted a license, but the MPE has subsequently decided that the license is invalid, so that Fosstveit power plant still has a license exemption. The MPE nevertheless assumes that the power plant voluntarily meets the requirements in the license. The power plant must have consented to this. What possibilities does the MPE have to impose this, if the power plant still does not meet the requirements, or does the owner change? Answer: The MPE has had a dialogue with the company and NVE and has been informed that work is now underway to rebuild the power plant. Bekk and Strøm have confirmed that the work will be completed by August 2023. Until further notice, the ministry assumes that they will follow up the measures they have. What happens if the conditions are not met, we will then get back to. Bekk and Strøm will not answer news’s questions specifically, but write that they have already made voluntary improvements, and are planning more: “When it comes to dialogue with the authorities, it is an ongoing process.” news’s unanswered questions to Bekk and Strøm – Will Fosstveit power plant voluntarily implement all the measures imposed by NVE, in the now invalid licensing decision? -What will the rebuilding of the power plant cost, including power loss during the construction period? -Will Fosstveit power plant itself bear the full cost of this? -When will the conversion of the power plant be completed? Model practice for safe two-way fish migration The authorities set strict requirements for the Palmafossen power plant for safe fish migration. It was to follow pattern practice for two-way fish passage. The descent passage consists of an inclined fine-mesh (12 mm) beta goods gate with a 74 m2 surface. The goods gate directs migrating fish to a surface hatch and a bottom hatch. The surface hatch is intended for salmon and trout, the bottom hatch for eel. For migration, a “double staircase” has been built for the first time in Norway. The stairs can withstand very varying water levels and water flows, says Dr. Ulrich Pulg at NORCE. It is adapted to both eel, salmon and trout. Read more here: Fjelstad, Kraabøl, Forseth 2014 Fjeldstad, Pulg, Forseth 2018
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– The state granted an illegal license exemption. Has a duty to stop the fish death – news – Climate
