Friends of Sebago Lake
P.O. Box 561, Fryeburg, ME 04037
www.friendsofsebago.org




Ms. Magalie Salas, Secretary
Federal Energy Regulatory Commission
888 First Street, NE
Washington, D.C. 20426

July 26, 2004


RE: Motion to Intevene and Comments by Friends of Sebago Lake on American Eel Passage at S.D. Warren's Presumpscot River Projects. FERC Project Nos. 2942-005; 2931-002; 2941-002; 2932-003; and 2897-003.



Dear Secretary Salas,


Below are the Motion to Intervene and Comments by Friends of Sebago Lake (FOSL) on S.D. Warren's proposed compliance measures for License Articles concerning the passage of adult American eel (Anguilla rostrata) at Warren's Dundee, Gambo, Mallison, Little Falls and Saccarappa Falls hydro-electric projects.


I. MOTION TO INTERVENE


Pursuant to Rule 214 of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission ("Commission"), 18 C.F.R. §385.214, Friends of Sebago Lake ("FOSL") hereby moves to intervene in the above-captioned proceeding. Friends of Sebago Lake is a volunteer group based in Casco, Maine, and is incorporated as a non-profit organization under Maine law. FOSL has been an Intervenor and active participant in the recently concluded re-licensing proceedings for all of the above projects. FOSL is also an Intervenor and active participant in the Commission's ongoing re-licensing of S.D. Warren's Eel Weir Project (FERC No. 2984) at the outlet of Sebago Lake and the head of the Presumpscot River. As an Intervenor in the recent relicensing of S.D. Warren's Presumpscot River projects, Friends of Sebago Lake and its members have a compelling interest in Commission actions ensuring that S.D. Warren fully complies with various License Articles for these projects, including those protecting adult American eels. Many of the adult American eel migrating past S.D. Warren's Presumpscot River projects originate from Sebago Lake. Friends of Sebago Lake has a compelling interest in ensuring these American eels are provided safe and timely passage at all of S.D. Warren's projects during their spawning migration from Sebago Lake to the Atlantic Ocean.


II. OVERVIEW.

American eel populations across the entire Atlantic seaboard of North America are now in steep decline. On March 10, 2004 the American Eel Management Board of the Atlantic States Marine Fisheries Commission (ASMFC) issued a statement recommending the protection of American eel under the United States Endangered Species Act. The statement reads in part:

"Canadian and US data show 2003 commercial landings are the lowest on record since 1945 and there are indications of localized recruitment failure in the Lake Ontario/St. Lawrence River system. The International Eel Symposium at the 2003 American Fisheries Society Annual Meeting reported a worldwide decline of eel populations, including the Atlantic coast stock of American eel ... The Commission also recommended that the US Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) consider American eel in the Lake Ontario/St. Lawrence River/Lake Champlain/Richelieu River system as a candidate for listing as a Distinct Population Segment under the Endangered Species Act. The Board also recommended that the USFWS and NMFS consider designating the entire coastwide stock as a candidate for listing under the ESA."

Warren's proposed downstream passage measures for adult American eel will not safely pass American eels at its projects from 2 a.m. to 6 a.m. each evening. This is because Warren proposes to operate its project turbines from 2 a.m. to 6 a.m. each evening from Sept. 1 to Oct. 31. The close proximity of Warren's five Presumpscot River dams to each other creates a significant probability that American eels safely passed at an upper dam early in the evening may be maimed and killed at a lower dam later in the evening. Warren refuses to conduct any monitoring of its five turbine outfalls to determine if migrating American eel are entrained and killed during those periods in the evening when its turbines are in operation. The lack of turbine outfall monitoring will prevent the Commission and other parties from knowing if Warren is complying with Commission License Articles which require safe and timely passage for American eels at Warren's Presumpscot River projects.


III. WARREN'S PROPOSED PROJECT SHUTDOWNS DO NOT COMPLY WITH LICENSE ARTICLES REQUIRING PROTECTION FOR AMERICAN EEL.


License articles for these five hydropower projects state:

"Beginning September 1, 2004, and annually thereafter, the licensee shall cease generation at sunset for at least eight hours per night from September 1 through October 31, as required by Prescription 3 of Appendix B. The licensee shall determine the timing of the generation shutdown each year in consultation with the Maine Department of Marine Resources (MDMR) and the U.S. Fish & Wildlife Service (USFWS). The purpose of the shutdown period is to provide out-migrating American eel safe and timely passage downstream past the project via flows over the project dam."

In crafting the above license article for S.D. Warren's Dundee, Gambo, Mallison, Little Falls and Saccarappa projects, the Commission clearly states the purpose of its prescribed evening turbine shutdowns:

"The purpose of the shutdown period is to provide out-migrating American eel safe and timely passage downstream past the project via flows over the project dam."

The Commission describes the evening shutdowns as beginning at sunset and having a duration of at least eight hours. This language clearly implies that shutdowns of longer than eight hours may be necessary in order to provide out-migrating American eel safe and timely passage downstream past the project dams, as required by the License Articles.

During a significant portion of the prescribed Sept. 1 to Oct. 31 project shutdown period, the evening lasts considerably longer than the eight hour shutdowns proposed by Warren. After the autumnal equinox on Sept. 21, evening lasts a minimum of twelve hours and lengthens with each additional day. This means that from Sept. 21 to Oct. 31, adult American eels may attempt to migrate past the S.D. Warren hydropower projects for 12 hours or longer.

The eight hour shutdown proposed by S.D. Warren will cover less than two thirds of the evening hours after the autumnal equinox on Sept. 21. This means that for 40 days of the 60 day turbine shutdown period, migrating American eels will be vulnerable to entrainment and death in S.D. Warren's turbines for at least four hours per evening.

S.D. Warren provides no factual evidence showing its eight hour per evening shutdown will be sufficient to protect migrating adult American eels during the period from Sept. 21 to Oct. 31, when the duration of evening (and darkness) is much greater than eight hours. The inadequacy of S.D. Warren's proposed compliance measures is exacerbated by the number of Warren's hydro projects (five) and their close proximity to one another on the Presumpscot River. Less than three miles of river separates the Gambo, Mallison Falls and Little Falls projects. The Mallison Falls and Little Falls projects are located less than one mile from each other. An American eel safely passing the Mallison Falls project at 1:30 a.m. would most likely be killed attempting to pass the Little Falls project one hour later -- after Warren has re-activated the Little Falls turbines at 2 a.m. Such an event would defeat the entire purpose of the Commission's license article protecting American eels because the eels passed safely at an upper dam would be subsequently killed at a lower dam during the same evening.

Until S.D. Warren has presented to the Commission site specific data showing that American eels in the Presumpscot cease their migration prior to 2 a.m. each evening, Friends of Sebago Lake believes Warren's proposal does not comply with the License Articles to provide safe and timely passage for adult American eel.


IV. WARREN'S PROPOSED DOWNSTREAM EEL MIGRATION STUDY IS INCOMPLETE AND WILL PROVIDE FALSE DATA.


The purpose of the Commission-required studies of the timing of downstream eel migration is to determine the duration and timing of project shutdowns necessary to provide American eel safe and timely passage at Warren's five Presumpscot River projects. The benchmark for this study is whether American eels are being entrained and killed at Warren's projects despite the initiation of project shutdowns for part, but not all, of the evening hours. If American eels are being entrained and killed at Warren's projects even with project shutdowns, then the timing of project shutdowns must be adjusted or increased. This is because the Commission's License Articles state:

"The purpose of the shutdown period is to provide out-migrating American eel safe and timely passage downstream past the project via flows over the project dam."

In its July 2004 filing, Warren has proposed to conduct a study which consists of collecting American eels at the Gambo project spillway -- well upstream of the Gambo project turbine outfall. Warren has proposed no collection of eels at the Gambo project turbine outfall or at its other four project turbine outfalls.

By definition, the eels collected directly below the Gambo spillway will have avoided the Gambo power canal and project turbines. Any eels which select the Gambo power canal as a migration route will not be collected or observed below the Gambo spillway. Warren's proposed study will only show how many American eel are not killed at the Gambo Dam when the Gambo turbines are not in operation. The pertinent question to Warren's compliance with its License Articles is how many American eel are killed when all of all of five Warren's projects are in operation from 2 a.m. to dawn each day.

Because Warren does not propose any monitoring of the Gambo project turbine outfall, the proposed study will provide no data on the number of eels which select the power canal as a migration route after the Gambo turbines are brought back on-line at 2 a.m. This is the critical question since it will determine if Warren's proposed measures are providing safe and timely passage for American eels -- or if they are not.

As proposed, the study will produce incomplete and false data on the migration timing of American eel during the evening. Observers at the Gambo dam spillway will only document those American eels passing over Gambo spillway prior to 2 a.m. Once the Gambo headgates are opened at 2 a.m., migrating eels will begin selecting the power canal and turbine intakes as their migration route. After 2 a.m., the eels will begin migrating through the power canal -- not the dam spillway -- and thus will not be documented in the nets deployed immediately below the Gambo spillway. Unless nets are also deployed at the Gambo project turbine outfalls, it will be impossible to observe how many American eel migrate through the project power canal and turbines after the turbines are re-activated at 2 a.m. each evening. The proposed study, if interpreted incorrectly, would seem to show that eel migration in the Presumpscot stops at 2 a.m. each evening. In reality, the study would only show that upon opening of the power canal at 2 a.m., American eels migrated through the power canal and turbines instead of the spillway.

Until S.D. Warren has presented to the Commission site specific data showing that American eels in the Presumpscot cease their migration prior to 2 a.m. each evening and are not being entrained and killed in the project turbines after 2 a.m. each evening, Warren's proposal does not comply with the License Articles. Due to its design, Warren's proposed eel migration study cannot and will not provide this critical information to the Commission.


V. THE PROPOSED STUDY PERIOD OF AUGUST 15 TO SEPT. 1 IS USELESS UNLESS TURBINES ARE SHUT DOWN.


In response to agency requests, Warren has proposed to begin its American eel collection efforts at the Gambo Dam spillway on August 15. However, Warren states it will not commence eight hour turbine shutdowns until Sept. 1st. This means that the nets deployed by Warren at the Gambo Dam spillway will not capture any American eel from August 15 to Sept. 1. This is because any American eels leaving the Gambo impoundment from August 15 to Sept. 1 will migrate through the Gambo project power canal and turbines -- not over the spillway. Moreover, any American eels attempting to leave the Dundee Dam impoundment during this period will likely pass through the Dundee Dam turbines and be killed.


VI. WARREN DOES NOT ASSESS THE SAFETY OF SPILLWAY PASSAGE FOR AMERICAN EEL AT WARREN'S DAMS.


Warren's proposal to pass American eel over its project spillways is based on the premise that eels can pass over the spillways safely. This can only happen if there are plunge pools below each dam spillway of sufficient size and depth to allow American eel to fall over the spillway without striking ledge outcrops, boulders or the dam apron. Given the height of Warren's dams and dam spillways, especially Dundee, an American eel which falls over the dam spillway and strikes boulders, ledge or dam aprons will most likely be killed or severely injured.

Detailed documentation of this phenomenon has been made in recent years by Maine Dept. of Marine Resources staff at the FERC-licensed American Tissue Dam on Cobbosseecontee Stream in Gardiner, Maine (FERC No. 2809). In recent years at this site, migrating juvenile alewives were forced to free-fall over an approx. 25 foot high concrete spillway . Significant numbers of juvenile alewives were observed to be killed or severely injured at this dam from striking the concrete dam apron at the base of the dam. This mortality was only stopped when the dam owner was required to construct a 4 foot deep plunge pool made of iron and plywood at the base of the spillway. This artificial plunge pool provides a sufficient cushion of water at the base of the dam to allow the fish to descend safely over the dam spillway and avoid striking the dam's concrete apron. Given the large body size of adult American eels, a free-fall descent onto a hard surface would cause injuries as severe or more severe than those documented with 3-4 inch long juvenile alewives at the 25 foot high American Tissue Dam spillway at Cobbosseecontee Stream.

Warren's proposal contains no information on whether there are plunge pools of sufficient size and depth below each dam spillway to prevent American eel from being killed during their free-fall over the dam spillways. This information is critical to determining whether American eel can actually pass safely over the dam spillways -- or not.

Without specific information on the safety of spillway passage at Warren's five Presumpscot River dams, the Commission and other parties have no way of determining if Warren's proposed downstream passage measures at these projects will in fact provide safe and timely passage for adult American eel, as required by Commission License Articles.


VII. WARREN'S PROPOSAL OFFERS NO INFORMATION ON WHETHER AMERICAN EEL WILL SELECT PROJECT SPILLWAYS AS A MIGRATION ROUTE.


Migrating American eel are frequently entrained and killed in dam turbines because they migrate along the river bottom, rather than near the surface. This behavior is why American eel tend not to select dam spillways as migration routes even when they are available. This is especially true when dam spillways are 20 feet or higher and water depths immediately above the dam spillways are 20 feet or deeper. In these instances, American eel must overcome their natural tendency to stay close to the river bottom, and must swim straight up through 20 feet of water to the surface in order to pass over a dam spillway. Such behavior runs completely counter to the natural behavior and migration strategy of American eel.

If American eels approaching any of the project dams during the early evening refuse or are reluctant to swim up to the water surface, they may stop and rest on the river bottom immediately above the dam spillways. With re-opening of the project head gates at 2 a.m., eels congregating on the river bottom above the dam will sense an increase in current on the river bottom as deep water is drawn into the project power canal. Attracted to this increase in current, the congregated eels will move toward and proceed down the project power canal to the turbines and be killed en masse. If this scenario occurs, an entire evening's eel migration may be killed at the project turbines in less than one hour.

If eel monitoring is only conducted directly below the Gambo project spillway, as Warren proposes, this entire fish kill will go undetected. Even worse, observers at the dam spillway, seeing few or no eels pass over the spillway, will assume that no migration of eels occurred that evening. Without monitoring of the project turbine outfalls, there will be no evidence that a massive kill of eels had occurred as soon as the project turbines are brought back on-line at 2 a.m.

An additional factor not addressed in Warren's proposed study is whether there is a sufficient depth of water passing over the project spillways to allow American eel to pass over the spillway. Adult American eel are large animals, exceeding 3 feet in length with a body diameter of 4-5 inches or more. If spill over the dam consists of a thin sheet flow less than six inches in depth, American eel may be physically unable to swim over the top of the spillway or may be very reluctant to do so. Flashboards at the top of dam spillways can exacerbate this situation by creating a sharp "edge" that eels must surmount vertically to get over the dam spillway. Debris which collects behind the flashboards can physically obstruct the eels if they attempt to swim up and over the flashboards.

If any of these situations occur at Warren's dams, American eels attempting to migrate over the spillway during the early evening may abandon their effort, return to the river bottom, and re-commence their migration when the project head gates are opened at 2 a.m. each morning and the turbines are brought back on-line. This will result in their death.


VIII. CONCLUSION


To successfully pass an adult American eel over a hydro-power dam, one must have a thorough understanding of their migration behavior. Recent and detailed observations of American eel migration behavior at the American Tissue Dam on Cobbosseecontee Stream in Gardiner, Maine (FERC No. 2809) provides numerous insights to the behavior of American eel when confronting a hydro-electric dam of similar size and configuration as Warren's Presumpscot dams.

The first observation made at the American Tissue Dam has been that each fall, large numbers of American eel are attracted to the project turbine intake and these eels are killed or severely injured in the project turbines.

The second observation is that American eel kills at this dam begin near the autumnal equinox on Sept. 21 and continue throughout the month of October. Few or no eel kills have been observed at this dam in early September and most have been clustered during the last week of September and the first three weeks of October.

The third observation is that American eels at the American Tissue Dam appear to migrate episodically and in groups of 20 to 100 individuals during a single evening. Since 2000, Maine DMR staff and volunteers have conducted daily observations at the American Tissue Dam during the fall to document American eel kills at the dam. This daily observation has confirmed that large numbers of American eels attempt to pass the dam in a single evening, followed by evenings with few or no eels attempting passage. Documentation for this has been made by Maine DMR staff and volunteers "cleaning up" the dead eels on the stream bottom after one evening's kill and then observing large numbers of freshly killed eels on the stream bottom the next morning.

The fourth observation is that dusk to dawn project shutdowns at the American Tissue Dam have been the only method proven to stop the entrainment and death of American eel at this dam. This was demonstrated in 2002 and 2003 when the American eel kills ceased completely upon the initiation of dusk to dawn turbine shutdowns from Sept. 15 to Nov. 15. It is important to note that all of the above information has been obtained because Maine DMR staff and volunteers have conducted daily observations of the turbine outfall at the American Tissue Dam each fall to determine the presence of dead and chopped up American eel. Daily inspections of the American Tissue Dam turbine outfall has proven to be the only reliable method to gain insight on the migration timing of American eel at the dam, the duration of the migration, and the success or failure of the various passage methods tested by the dam owner.

The Commission's License Articles for Warren's dams clearly state that American eel must be provided safe and timely passage over Warren's dams during their fall migration. The presence or absence of American eels entrained and killed at Warren's projects is the only reliable method to judge whether Warren's proposed passage measures are in compliance with the License Articles. This is why Warren's refusal to look for dead and maimed eels renders its study meaningless. To find dead eels you must look for them. And to find dead eels you must look where the eels are being killed.

Warren's study proposes to only look for eels where they are not being killed. Warren's study design guarantees that no dead eels will be found, even if they are being killed in Warren's turbines by the dozens or hundreds during the course of their study.

S.D. Warren, the Commission, and state and federal fisheries agencies could have easily avoided this entire mess by instituting dusk to dawn turbine shutdowns at all five of Warren's dams during the period Sept. 15 to Nov. 15. This is exactly what the owner of the American Tissue Dam has done since 2002 and it has proven almost totally successful at preventing the entrainment and death of American eel at this dam.

A dusk to dawn turbine shutdown is successful because it covers the entire period of the evening when American eels migrate. Because this shutdown period is triggered by sunrise and sunset, rather than an arbitrary number of hours, the shutdown period automatically matches the increasing length of night as the days get shorter during September and October. As the nights get longer, the shutdowns get longer.

A dusk to dawn shutdown also eliminates the need for elaborate and expensive studies to determine whether American eel in the Presumpscot River migrate for only part of the evening, or throughout the entire evening. Unless Warren commits to elaborate and costly studies to determine what portion of the evening American eel migrate past its dams, and the extent to which American eels are entrained and killed when project turbines are brought back on line at 2 a.m., it will be impossible for Warren, the Commission, state and federal fisheries agencies, or intervenors to know whether American eels are still being entrained and killed at Warren's dams. Without this information, the Commission will have no way to determine if Warren is in compliance with the License Articles.


IX. RECOMMENDATIONS


Friends of Sebago Lake requests the Commission order S.D. Warren to provide dusk to dawn turbine shutdowns at its projects from Sept. 1 to Oct. 31. If the Commission declines to order this, we request the Commission require Warren to erect suitable nets and other devices at all of its turbine outfalls to collect all dead and maimed American eels discharged from its turbines and to inspect these nets each morning at dawn from Sept. 1 to Oct. 31. Friends of Sebago Lake requests the Commission require Warren to immediately notify the Maine Department of Marine Resources and U.S. Fish & Wildlife Service if any dead or maimed American eels are observed at its turbine outfalls. Friends of Sebago Lake requests the Commission require Warren to immediately commence dusk to dawn turbine shutdowns if any dead or maimed American eels are observed at its turbine outfalls during the period Sept. 1 to Oct. 31.

Friends of Sebago Lake takes the death of American eels at S.D. Warren's Presumpscot River dams very seriously. We sincerely thank the Commission and its staff for sharing our concern for the safety and welfare of these unique and endangered animals.


Sincerely,


Roger Wheeler, President
Friends of Sebago Lake