Friends of Sebago Lake
P.O. Box 445, Casco, ME 04015
www.friendsofsebago.org
June 27, 2003
Mr. Richard Wardwell, Chair
Maine Board of Environmental Protection
State House Station 17
Augusta, ME 04333
RE: Appeal by S.D. Warren of State of Maine Water Quality Certification
Order for S.D. Warren's Presumpscot River Hydro-Electric Dams
#L-19713-33-E-N (Dundee Falls)
#L-19714-33-E-N (Gambo Falls)
#L-19715-33-E-N (Little Falls)
#L-19716-33-E-N (Mallison Falls)
#L-19717-33-E-N (Saccarappa Falls)
Dear Mr. Wardwell,
Friends of Sebago Lake (FOSL) is a member supported non-profit organization
dedicated to protecting the health of Sebago Lake and its watershed. In
June 1999, FOSL became a formal intervenor in the federal re-licensing proceeding
for the above Presumpscot River dams. Since June 1999, FOSL has submitted
extensive written comments to federal and state agencies as part of this
re-licensing process.
In 2002, FOSL funded and conducted the most extensive research project
to date on the early history of the Presumpscot River. This research project
resulted in a September 2002 report titled, Supplemental Historic Records
Related to the Anadromous Fisheries of the Presumpscot River and Sebago
Lake, Maine. The final version of this report was produced and jointly
funded by American Rivers, Friends of the Presumpscot River and Friends
of Sebago Lake.
This report was filed with the Maine Department of Environmental Protection
as part of the comments of American Rivers and Friends of the Presumpscot
River on the application by S.D. Warren for state water quality certificates
for the Presumpscot Dams. FOSL did not file independent comments on the
State's draft water quality certificate for two reasons. First, because
our concerns were fully addressed in the comments of American Rivers and
Friends of the Presumpscot River. Second, because we concurred with the
key conditions regarding fish passage at the Presumpscot River dams contained
in the State of Maine's draft water quality certificate order.
S.D. Warren's decision to appeal the water quality certificate order compels
our organization to provide the following information to the Board in order
to protect our four-year effort to improve conditions for the native fish
and wildlife of the Presumpscot River. Our comments on S.D. Warren's appeal
("Appeal") of the State of Maine's Water Quality Certification
Order ("Order") for these dams are as follows:
I. Several indigenous fish species are now extinct from the Presumpscot
River above S.D. Warren's dams. Conditions in the Order are the minimum
necessary to allow for attainment of Maine water quality standards for these
indigenous fish species in the Presumpscot River.
Maine's water quality statutes (38 M.R.S.A. §465 et seq.) require
waterways to be "of sufficient quality to support all aquatic species
indigenous to the receiving water."
The State's Water Quality Certificate Order found Atlantic salmon, American
shad, and river herring are species of fish indigenous to the Presumpscot
River throughout the project areas (Order at 10). The Order found these
species have been extirpated from the Presumpscot River above S.D. Warren's
dams due to a lack of fish passage at these dams (Order at 11). S.D. Warren
does not dispute these findings.
The Order correctly establishes that indigenous fish species such as Atlantic
salmon, American shad and river herring require safe and convenient access
to and from their ocean and riverine habitat to maintain populations in
the Presumpscot River (Order at 11 and 18).
The Order correctly recognizes that narrative water quality standards for
the Presumpscot River as set forth in 38 M.R.S.A. §465 et seq. cannot
be achieved unless these indigenous fish species are provided safe passage
to their freshwater habitat in the Presumpscot River at each of S.D. Warren's
dams and safe egress back to their oceanic habitat.
II. The Water Quality Certificate Order is not premised on fisheries
management plans established for the Presumpscot River.
S.D. Warren claims sections of the Water Quality Certificate Order regarding
Atlantic salmon, American shad and river herring are illegally premised
upon various fisheries management plans for these species in the Presumpscot
River. (Appeal at 5)
Regarding these indigenous fish species, the legal authority for the State's
Water Quality Certificate Order is 38 M.R.S.A. §465 et seq.
For Class B sections of the Presumpscot River, the applicable statute
is 38 M.R.S.A. §465 ¶3-C, which states: "Discharges to Class
B waters shall not cause an adverse impact to aquatic life in that the receiving
waters shall be of sufficient quality to support all aquatic species indigenous
to the receiving water without detrimental changes in the resident biological
community."
For Class C sections of the Presumpscot River, the applicable statute is
38 M.R.S.A. §465, ¶4-C, which states: "Discharges to Class
C waters may cause some changes to aquatic life provided that the receiving
waters shall be of sufficient quality to support all species of fish indigenous
to the receiving waters and maintain the structure and function of the resident
biological community."
The above statutes do not mention fisheries management plans, nor are they
conditioned or dependent upon the existence of any fisheries management
plans.
The State's Water Quality Certificate Order found Atlantic salmon, American
shad, and river herring are species of fish indigenous to the Presumpscot
River throughout the project areas (Order at 10). These indigenous fish
species are now extirpated from the project areas due to blockage by dams
(Order at 11). S.D. Warren does not dispute these findings.
The fish passage requirements in the Order are an essential precondition
for these indigenous fish species to regain access to their native habitat
in and above the project areas. Passage for these indigenous fish species
at S.D. Warren's dams is essential for attainment of the narrative water
quality standards for these portions of the Presumpscot River as set forth
in 38 M.R.S.A. §465 et seq.
III. S.D. Warren's claim the Water Quality Certificate Order mandates
non-attainment of a designated use of the Presumpscot River, ie. hydropower,
is not true.
Citing 38 M.R.S.A. §464 (4)(F)(1), S.D. Warren claims the Water Quality
Certificate Order illegally prevents existing uses of the river from being
maintained, ie. hydro-power, because: "... the Order as written threatens
to make some of the projects uneconomic by reducing the amount of power
that can be generated and drastically increasing the required capital investment."
(Appeal at 4).
The Order provides S.D. Warren the opportunity to generate 34.5 million
kWh of electricity each year at its Presumpscot River dams (Order at 27)
while providing native migratory fish species such as Atlantic salmon and
American shad access to their historic habitat in the Presumpscot River
for the first time in 269 years. By providing for hydro-power production
and access to the river for native fish species, the Water Quality Certificate
Order accommodates both of these designated uses of the Presumpscot River.
IV. Minimum flows established in the Order for the bypass reaches of
S.D. Warren's dams are legal and justified.
S.D. Warren claims minimum flow requirements in the Order are illegal because
they are not necessary to allow the Presumpscot River to meet its water
quality standards; and because the Order describes these bypass flows as
an attempt to illegally "enhance" the Presumpscot River as habitat
for various native fish (Appeal at 11-13).
S.D. Warren correctly recognizes "the applicable water quality standard
is whether the waters are of such quality that they are suitable for the
designated use of habitat for aquatic life," as set forth in 38 M.R.S.A.
§465 et seq. For Class B sections of the Presumpscot River
(ie. the river above the Saccarappa Dam in Westbrook), the narrative water
quality standards require that: "Discharges to Class B waters shall
not cause an adverse impact to aquatic life in that the receiving waters
shall be of sufficient quality to support all aquatic species indigenous
to the receiving water without detrimental changes in the resident biological
community."
S.D. Warren provides no evidence its Presumpscot River dam impoundments
and bypass reaches are now of "sufficient quality" to support
the river's indigenous Atlantic salmon, as required by 38 M.R.S.A. §465
¶3-C.
An objective reading of 38 M.R.S.A. §465 ¶3-C would find all
of S.D. Warren's dams in violation of this water quality standard, since
the impoundments of these dams have flooded and destroyed virtually all
of the free-flowing Atlantic salmon spawning and rearing habitat in the
Presumpscot River above Westbrook. Neither S.D. Warren or the State of Maine
assert that the 15 miles of hydro-electric dam impoundments on the Presumpscot
River are of "sufficient quality" to support the river's indigenous
Atlantic salmon, as required by 38 M.R.S.A. §465 ¶3-C.
The Water Quality Certificate Order shows extreme deference to S.D. Warren's
interests by approving S.D. Warren's continued destruction of most of the
natural Atlantic salmon habitat in the Presumpscot River. The Order attempts
to provide some mitigation for this damage by requiring the very short bypass
reaches of each dam to have sufficient flows to support some natural reproduction
and growth of indigenous Atlantic salmon and other native fish which require
free-flowing riverine habitat to survive.
The Order states this purpose at 14:
"The bypass reaches at the project dams are of particular significance
because they represent the only free-flowing waters in the Presumpscot River
in the 15.4 mile long stretch between the Eel Weir Powerhouse in Standish,
located at the upstream limit of the North Gorham Project impoundment, and
the Cumberland Mills Dam in Westbrook, located downstream of the Saccarappa
Project."
Friends of Sebago Lake believes the Water Quality Certificate Order violates
38 M.R.S.A. §465 ¶3-C as it regards the indigenous Atlantic salmon
of the Presumpscot River. Notwithstanding, we believe the consideration
offered to Atlantic salmon in the Water Quality Certificate Order will allow
some of these animals to begin restoring themselves to what is left of their
native home in the Presumpscot River.
Friends of Sebago Lake thanks the members of the Maine Board of Environmental
Protection for the opportunity to provide these comments.
Sincerely,
Roger Wheeler, President
Friends of Sebago Lake
P.O. Box 445
Casco, Maine 04015