Gambo Falls Dam, Presumpscot River, Gorham, Maine.

PRESUMPSCOT RIVER WINS BIG
BEFORE MAINE BEP

SAPPI's appeal of fish passage unanimously denied.

Friends of Sebago Lake and and its conservation partners achieved a second major legal victory in October when the Maine Board of Environmental Protection voted unanimously to deny the appeal of SAPPI, Inc. of the State of Maine's water quality certification for its Presumpscot River dams.

Under Section 401 of the United States Clean Water Act, the State of Maine is allowed to place conditions on hydro-electric dam licenses to ensure the dams do not cause violations of Maine's water quality laws. In April 2003, the Maine Department of Environmental Protection issued water quality certifications for SAPPI's five Presumpscot River dams. These certifications require SAPPI to construct fishways at all five dams, increase minimum flows below the dams to meet dissolved oxygen standards, and protect migrating American eel from being chopped to pieces in SAPPI's hydro-electric dam turbines.

In June 2003, SAPPI filed a formal appeal of the State's water quality certifications before the Maine Board of Environmental Protection. The Board is made up of citizens appointed by the Governor to rule on appeals of actions by the Maine Department of Environmental Protection. Friends of the Presumpscot River, American Rivers and Friends of Sebago Lake all filed detailed written comments to the State in opposition to SAPPI's appeal.

On October 3, 2003 the Maine Board of Environmental Protection met in Augusta to hear SAPPI's appeal from its attorney, Matthew Manahan of the Portland law firm Pierce Atwood. Mr. Manahan argued the State of Maine has no legal right to place any conditions on the operation of SAPPI's dams and specifically questioned the State's legal authority to require fish passage, minimum flows and protections for adult American eel.

The Board then heard presentations by American Rivers, Friends of the Presumpscot River, Friends of Sebago Lake and the Maine Attorney General's office. The presenters pointed out that SAPPI, Inc. was being required to do no more than what every other dam owner in the State of Maine is required to do; and that SAPPI was asking the Board to treat the Presumpscot River differently than any other river in the State of Maine.

After discussion, Board of Environmental Protection member Matthew Scott of Belgrade moved to deny SAPPI's appeal and his motion received the unanimous support of the board members. SAPPI must now accept the Board's decision or appeal it to the Maine Superior Court.

In a strongly worded Findings of Fact for the decision, the Maine Board of Environmental Protection asserted the rights of the people of Maine to healthy rivers. Excerpts from the Board's Findings of Fact include:

Impact of the Presumpscot River dams:

"The record in this case demonstrates that Warren's dams have caused long stretches of natural river bed to be essentially dry and thus unavailable as habitat for indigenous populations of fish and other aquatic organisms; that the dams have blocked the passage of eels and sea-run fish to their natural spawning and nursery waters; that the dams have eliminated the opportunity for fishing in long stretches of river, and that the dams have prevented recreational access to and use of the river. Appellant's contention that water quality standards are being attained as long as the designated uses of fish, fishing and aquatic habitat are present to any degree in any portion of the river is thus contrary to the language of the statute and to the Legislature's stated objective 'to restore and maintain the chemical, physical and biological integrity of the State's waters.' 38 MRSA Section 464(1).

Dissolved Oxygen:

"With respect to dissolved oxygen, Warren's argument is that the Department has no authority to condition its Section 401 certification for the Dundee and Gambo Projects to impose reaeration requirements. Warren's position is that the dams pre-date water quality standards and that the operation of the projects does not result in a violation of dissolved oxygen standards.

"However, this argument ignores the fact that, based on the evidence in the record, the Dundee and Gambo Dams clearly cause or contribute to the current violation of dissolved oxygen standards in several parts of the Presumpscot River. Were these dams not in place and operating in such a way to reduce natural reaeration, to increase time of travel, to increase water temperature, and to create settling basins for sediments and nutrients, dissolved oxygen standards would be met in the Gambo, Little Falls and Saccarappa impoundments, particularly during dry weather conditions when the effect of non-point source pollution on dissolved oxygen levels is minimal. Under these circumstances, it is necessary and appropriate to condition the operation of the Dundee and Gambo Dams to require such changes as will eliminate the dams' contribution to the violation of dissolved oxygen standards. To do otherwise would be to condemn the river to its current condition, with the survival, growth and reproduction of fish and other aquatic animals being compromised by these dams, and with dissolved oxygen standards continuing to be violated, due in part to these dams and their current operation.

Dams not Exempt from the Law:

"Warren's argument also ignores the fact that water quality standards apply to all activities, including those that pre-date the enactment of the standards. Water quality standards have been applied since their adoption to many pre-existing activities, including the discharge of waste water from Warren's own Westbrook paper mill. It is largely through the application of water quality standards to existing waste water discharges and to the operation of existing dams that the water quality of Maine's rivers and streams has been improved over the last 30-plus years. To argue that Warren's dams are not subject to water quality standards is to argue the Presumpscot River is somehow exempt from meeting the standards that apply to all other rivers in the State, or that the Presumpscot River dams are somehow exempt from the kind of regulation that has been applied for over 20 years to all other dams in the State. There is no basis in law or regulation for such an exemption."

The Need for Fish Passage:

"In its April 30, 2003 Order, the Department determined that the Presumpscot River historically supported self-sustaining populations of various anadromous fish species, and that, over time, these fish were extirpated from the river by the construction of dams that blocked passage and pollution. The Department also determined that the State's fisheries agencies had developed a draft plan for the restoration of various anadromous fish to the river basin, and that the plan included the following order-of-magniture estimates of annual anadromous fish production potential in the river basin: 73,900 American shad; 450,200 blueback herring; 147,700 alewife; and 386 Atlantic salmon. Finally, the Department determined that the phased installation of upstream and downstream anadromous fish passage facilities at each of the project dams is necessary to ensure that the project waters will be suitable for the designated uses for fishing and habitat for fish, and that the project waters will be of sufficient quality to support all species of fish indigenous to these waters, subject to the other provisions of this order.

"The appellant has not presented any persuasive arguments or supplemental evidence calling into question the Department's determination regarding the need for anadromous fish passage at the project dams.

"Warren argues that the Department cannot and should not include substantial new conditions requiring fish passage based only on a draft fishery management plan that has not undergone public review and is not final.

"The draft plan, however, was not, as Warren contends, the "basis" on which the fish passage conditions were imposed. The plan was one piece of information, among others, that the Department considered in making its determination that certain fish passage conditions were necessary to meet water quality standards. Moreover, to the extent that Warren implies that a final fishery management plan is necessary before the Department may impose fish passage conditions in a certification, it is not correct as a matter of law. There is nothing in the statute or regulation that limits the Department's authority to require fish passage in order to meet water quality standards to those instances where a final fisheries management plan has been adopted by the relevant state agency(s) through a public process. Indeed, over the years, many fishways have been required by the Department and constructed and operated by hydropower project owners on rivers where no formal fishery management plan has been adopted.

"Taking Warren's argument to its logical extension, no fishways could be required anywhere by DEP (or, by the state's own fisheries agencies) unless a final fishery management plan had been adopted, even though (1) the state's fisheries agencies are already charged under law with restoring sea-run fish to their historic habitat, and (2) the DEP is already charged under law with restoring the chemical, physical and biological integrity of the State's waters. Such an argument has no legal basis and could limit the restoration of sea-run fish to Maine's waters and the attainment of water quality standards in Maine's waters."