South African Pulp
and Paper Industries (SAPPI)


Presumpscot River, Maine --
Saccarappa Falls Dam (FERC No. 2897);
Mallison Falls Dam (FERC No. 2932);
Little Falls Dam (FERC No. 2941);
Gambo Falls Dam (FERC No. 2931);
Dundee Falls Dam (FERC No. 2942).

Two intervenors to the above captioned proceeding, Friends of Sebago Lake and the Maine Council of the Atlantic Salmon Federation, provide herein their joint initial comments, recommendations and terms and conditions for these dams. This joint filing is being made because these two citizen organizations, though differing in geographical location and membership, share the same concerns regarding the impact of these dams on the Presumpscot River and Sebago Lake and Crooked River watershed, in particular their impact on our efforts to restore naturally reproducing populations of a wildlife species native to the Presumpscot-Sebago-Crooked River watershed, the Atlantic salmon (Salmo salar).

We are commenting because the Commission's final actions on these applications will either enhance or nullify our organizations' long-term efforts to return healthy populations of Atlantic salmon and other migratory and resident fish species to their native home in the Presumpscot-Sebago-Crooked River watershed.

The comments below do not constitute our final comments in this proceeding; as recognized by 18 C.F.R. §4.34(b)(4), since it is likely these comments will be updated and expanded upon issuance of a draft Environmental Impact Statement by the Commission. We reserve the right to modify and supplement our comments as necessary upon release of the draft environmental impact statement.

I. About our organizations

Friends of Sebago Lake (FOSL) is a 501(c)(3) non-profit, citizens organization incorporated under the laws of the State of Maine and headquartered in Casco, Maine. Its membership consists of more than 100 individual citizens and families, most of whom live year-round or seasonally near Sebago Lake. The organization is dedicated to protecting the ecological health of Sebago Lake and its watershed. Our activities include education, outreach, research and direct advocacy. A key organization goal for FOSL is to restore the natural connection between Casco Bay and Sebago Lake in order to restore the watershed's populations of native, migratory and resident fish and wildlife species.

The Maine Council of the Atlantic Salmon Federation (MCASF) is a 501(c)(3) non-profit, citizens organization incorporated under the laws of the State of Maine and based in Hermon, Maine. MCASF is a regional affiliate of the Atlantic Salmon Federation (ASF), an international non-profit citizens conservation organization headquartered in New York, New York, Brunswick, Maine and St. Andrews, New Brunswick, Canada. ASF is dedicated to the protection, restoration and wise management of the Atlantic salmon throughout its global range which includes the United States, Canada and Europe. Maine Council ASF is comprised of more than 20 affiliate membership organizations located across the State of Maine, all dedicated to the restoration, protection and wise management of Atlantic salmon and their habitat in the State of Maine. MCASF, its affiliates and volunteer members are active participants and leaders in efforts to protect and restore Atlantic salmon and to educate the public and policy makers about the importance of Atlantic salmon as a valuable natural resource and asset for the people of Maine and the United States.

II. Purpose and Scope of Comments

Our objective in this proceeding is to secure sufficient habitat and safe access to that habitat to allow for the swift and successful restoration of naturally reproducing populations of all migratory fish species native to the Presumpscot River above the Cumberland Mills dam, including sea-run Atlantic salmon, American shad, alewife, blueback herring, anadromous brook trout, American eel and sea lamprey.

We believe the decommissioning and removal of several dams in this proceeding (Saccarappa Falls, Little Falls, Mallison Falls) is necessary to achieve this goal within the proposed license term. We believe licenses for the two other dams (Gambo Falls, Dundee Falls) can be crafted to comport with applicable federal and state laws and plans as well as our own organizational goals. While our organizations' interest and fisheries restoration goals include the entire Presumpscot River up to and including Sebago Lake and its tributaries, our comments and recommendations herein will focus specifically on those dams subject to this licensing action.

We note that in its representations to date, licensee has asserted:

a) it is entitled to full, private monopoly use of the Presumpscot River.
b) it should bear no responsibility to provide for uses of the river which require any modifications to its existing operating practices.
c) it should bear no responsibility for providing conditions sufficient for the restoration and healthy existence of the native, migratory fish species of the Presumpscot River.

Initially, licensee attempted to justify these extreme positions by stating that no parties had come forward to express an interest in uses of the river beyond which licensee's existing and proposed operations permit. And when local, citizen intervenors did just that, instead of recognizing and attempting to reasonably accommodate these interests, licensee has instead gone to absurd lengths to ridicule and trivialize them. Examples include licensee asserting the Presumpscot was never an "Atlantic salmon river" or that Atlantic salmon never existed in the Presumpscot River above licensee's Cumberland Mills dam. (Licensee response to August, 1999 MCASF motion for EIS; July, 2000 licensee response to March 16, 2000 FERC AIR, respectively).

The extremely hostile and inflexible stance of licensee throughout this proceeding and its disdain for the legitimate concerns and interests of citizen intervenors who, unlike licensee, own the Presumpscot River, has made this proceeding a very frustrating and time consuming enterprise for our organizations.

So to allow the record to be crystal clear in this respect, the citizen members of Friends of Sebago Lake and the Maine Council of the Atlantic Salmon Federation, intervenors to this proceeding, desire one principal outcome from this proceeding:

To see functioning, naturally reproducing populations of sea-run Atlantic salmon and other native migratory fish species restored to their historic home in that portion of the Presumpscot River between the spillway of the Cumberland Mills dam and the base of the Dundee Falls Dam as quickly as possible.


II. Historical Context for This Proceeding


"Causes of Decay

The causes that have led to the present state of things are --

First -- Impassable dams.
Second -- Overfishing.
Third -- Pollution of the water.

The first and second are the principal causes with us, the third having operated only in a few localities to a limited extent. It is hard to say what share of the blame each must bear, but it is very certain that the erection of impassable dams is alone sufficient to account for the entire extinction of the migratory fishes in all waters above the obstructions; and if they were erected below all the breeding grounds, the race is extinguished from the whole river. It needs no argument to show that if a species is prevented from reaching those places in which alone it can reproduce its kind, it must soon become extinct."

-- Charles G. Atkins, Maine Fisheries Commissioner, First Report, 1867, pp. 139-140. Italics included in original text.


"Prior to dam construction and pollution, the Presumpscot River supported an abundance of both sea-run and landlocked Atlantic salmon."

-- Director's Order For Minimum Flows in Eel Weir Reach of Presumpscot River; 58 FERC ¶ 62,006; Feb. 6, 1992.


These two statements, made 125 years apart, neatly summarize the key licensing issues before the Commission in this proceeding.

Today, nearly all of the Presumpscot River is bereft of its native, indigenous migratory fish species. This fact is immediately due to the absence of any functioning fish passageways at licensee's dams, which fundamentally prevents these migratory species from establishing and maintaining population in river above Cumberland Mills and Saccarappa. Baseline fisheries studies conducted by the licensee and entered into the record of this proceeding found no members of the following native, migratory species of the Presumpscot River in the project areas of licensee's dams: anadromous Atlantic salmon, alewife, American shad, blueback herring, sea lamprey, anadromous brook trout.

This documented absence is not surprising because all of these native migratory species of the Presumpscot River require safe and efficient access between their freshwater and marine habitats in order to survive. For nearly 100 years, licensee's dams have directly prevented this access; and as evidenced in their pending applications, licensee proposes to continue obstructing all access for these species to their native, historic habitat in the Presumpscot River for the entire term of license for which it has applied.

A review of the history of the Presumpscot River shows a long and sharp conflict between citizens and individual dam owners who simply refused to provide fish passage at their dams in violation of existing laws. This conflict began very soon after the first European settlement of the river valley in the 17th century (DeRoche, 1967). Records indicate the shutting off of the river to native, migratory fish runs by early dam owners was a key spark point for tensions between the native people of the Presumpscot River and the first European settlers; and that protests by various local residents were made in response to numerous several early acts by dam owners to deny safe passage to native fish ascending the river (DeRoche, 1967).

Records show that in the mid 18th century, local settlers took legal action against several dam owners, through town meetings and the general court, to compel them to provide for the safe passage of native fish at dams erected on the Presumpscot River. In addition, records show local residents in the mid 18th century appointed their fellow citizens to town committees and charged with ensuring that dam owners on the river provide the rivers' fish with safe passage around or through these structures. If nothing else these legal actions and incidents clearly indicate that migratory fish runs on the river were large and valuable enough to motivate citizens to make extended legal efforts to protect them. Had the Presumpscot River been naturally inaccessible to most migratory species beyond Congin Falls or Saccarappa Falls, as licensee has purported, it is very doubtful the historic record would be so replete with local efforts and legal actions to ensure passage for salmon, shad and herring at these very sites.

Records show that in the mid to late 19th century, the State of Maine took an active and aggressive role in reestablishing the natural passageway for native migratory fish along the entire length of the Presumpscot River from its mouth in Casco Bay to its headwater, Sebago Lake. Records show the Presumpscot River was selected by the State of Maine as one of several sites to test the efficacy of introducing ("planting" ) juvenile Atlantic salmon in suitable historic habitat to restore populations of the species to rivers with diminished or extirpated populations of the species. Again, it is doubtful the State of Maine and dam owners would have gone through a nearly decade-long effort to build fishways and reconnect the river to Sebago if there was no record of migratory fish living in these waters or if its potential for supporting significant numbers of these fish was slim.

Records show that during this period, all of the dam owners on the Presumpscot River willingly cooperated with State fisheries commissioners and financed the construction, maintenance and repair of fish passageways at their Presumpscot River dams, including the S.D. Warren Company, the direct corporate predecessor of the licensee in this proceeding.

Records show that soon after the completion of eight fishways on the Presumpscot River in the late 1870s, sea-run Atlantic salmon were observed in the upper portions of the Presumpscot River as well as in tributaries of Sebago Lake. The numbers of sea-run Atlantic salmon observed during this period suggest both that a natural run was still in the river and that Atkins' experimental stocking program was successful in producing returning adult Atlantic salmon to the Presumpscot River watershed. Records show the number of large salmon observed in the river and its headwaters during the period immediately after the provision of full fish passage to the river were sufficient to attract poachers who speared or otherwise harassed the salmon, leading to numerous arrests and legal actions.

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Summary Time Line of Fish Passage Issues on the Presumpscot River:

1646 -- First mill built on river (DeRoche, 1967)

1739 -- Dam built at Saccarappa Falls without fish passage. Chief Polin of Aucocisco tribe walks to Boston to complain to Gov. Shirley about dam's impact on migratory fish runs. People of Westbrook request that fishway be built at Saccarappa Falls dam, owned by John Wait. (DeRoche, 1967)

1739/1741 -- "At an early day the inhabitants had regard for the preservation of the fish. In 1739 it was voted in town meeting 'that John Wait go to make answer to the presentment against the dam across the Presumpscot, because of the absence of fishways. In 1741 the general court passed an act requiring that all dams which the fish could not conveniently cross should be provided with a passage through or around which the fish might pass. The records of the court of session show that this matter required constant attention." (Maine Historical Society, The Story of Presumpscot, pp. 379-380)

1785/1793 -- "On July 13, 1785, William Gorham, Samuel Freeman and Edmund Phinney were appointed to open sluice ways on the mill dam on the Presumpscot River. In the year following Edmund Phinney, John Deane and Jonah Perley were appointed a committee for the same purpose. In October 1793 the proprietors of the dam at Great falls were found guilty of not keeping open a good and sufficient sluice way for the passage of salmon, shad and alewives as required by law and were subjected to a fine of six pounds per day for e4very day the way was closed." (Maine Historical Society, The Story of the Presumpscot, p. 380)

1802 -- Dam without passage constructed at head of tide (Presumpscot Falls); large numbers of Atlantic salmon caught below dam while unsuccessfully trying to move upriver (Maine Commissioner of Fisheries, First Report, 1867, p. 105)

1867 -- Maine Fisheries Commissioner reports on survey of river and eight dams between estuary and Sebago Lake, describing potential fish passage locations. Report notes dam at Presumpscot Falls (head of tide) washed out 15 years prior (c. 1852); notes that "alewives and shad pass this point every year." Little Falls dam was also non-existent at this time. (Maine Commissioner of Fisheries, First Report, 1867, p. 35)

1869 -- Maine Fisheries Commissioner's report notes, "On the Presumpscot -- My attention was called to the construction of fishways on the Presumpscot river by some of the owners of the dams themselves. The river was several times visited and finally plans were drawn and submitted to the proprietors for fishways over the dam at Cumberland Mills, the two dams at Saccarappa, and the dam at Gambo Falls, and Lindsley's or upper falls ....
"Since it was proposed to open this river to the migratory fishes by the voluntary action of those liable to build fishways, no legal steps were taken. I have not learned that any of the fishways have been completed, but it is hoped that they will be during the next year. The character of the river, subject to no heavy freshets, renders the building of fishways easier and safer than on most of the rivers in the State. The most expensive will perhaps be that at the lower falls in Saccarappa, and I think this need not cost over six hundred dollars.
"Alewives still come as far as Cumberland Mills each year, and in common with other fishes approach closest to the raceway where the poisonous matters are discharged from the paper mill without apparent harm. Sebago salmon are frequently caught here, and in the little bay below the mill is an excellent places to take pickerel." (Fish Commissioners Report, 1869, pp. 9-10)

1875 -- Maine Fisheries Commissioners report, "The first fishway on the Presumpscot was built by the Cumberland Mills, and finished this spring. The plan of the fishway was by Mr. Charles G. Atkins, after a design by Robert G. Pike, Esq. of Middletown, Conn. Of its success, one may judge from the following extract from a letter of our genial friend, Mr. Hammon: 'I had supposed your fishways were intended for fishes in the upper walks of life, such as salmon, trout, &c., &c.; but I find our new fishway is used by the mudsills, the suckers, the chubs, the pouts, even the lampreys. What is to be done about it?' Our reply was, that the 15th Amendment admitted all!
"Our esteemed friend, Hon. George Warren ... has given us an admirably built fishway at Saccarappa. Two have been constructed at that village; and excellent one by the 'Westbrook Manufacturing Co.' A fishway after design and plan by Mr. Atkins has been promptly built over the dam at their works, by the Oriental Powder Mills at Windham. Four others on the Presumpscot will be completed by the month of May, by Mr. Lindsey and Messrs. Holland & Law." (Fisheries Commissioners' Report, 1875, p. 18)

1876 -- Maine Fisheries Commissioner reports, "The Presumpscot River may now be pronounced accessible to salmon and alewives, as far as Mallison Falls. Everybody ostensibly connected with that property is bankrupt. To the County Attorney is referred the decision as to what course to pursue. Of the fishways already built on the river, there was more or less departure in all from accurate obedience to the plans furnished, and some alterations will be required before we shall accept them in the name of the State. As a general rule, kindly feeling and a desire to fulfill the wishes of the Commissioners prevails. Allow me to state, that in no one instance have we ever, from our own personal desire, enforced a fishway upon any mill owner. In every single instance have we been impelled either by newspaper attacks, or by the petition of the inhabitants of the locality, to take the legal steps that were necessary to produce the result." (Fisheries Commissioners' Report, 1876, pp. 12-13)

1879 -- Maine Fisheries Commissioners report, "On the Presumpscot River, within the present year the chain of fishways has at last been completed. The old fishway at Mallison Falls, that was not built according to the original design and was utterly inadequate to its purpose, has been torn down and replaced by a new and efficient fishway. Other fishways on the river have been repaired and improved, and a fishway has been constructed over the new dam at Wescott's Falls, at the head of the river." (Fish Commissioners' Report, 1879, pp. 20-21)

1880 -- Maine Fisheries Commissioners report, "Presumpscot River. There are now eight fishways upon this river, a new having been completed at Wescott's Falls, to allow the fish to pass the dam at the head of the river, the outlet of Sebago Lake. So that every dam upon the Presumpscot is provided with a fishway. Some much needed improvements have been made at Cumberland Mills, and some improvements are required at the upper dam at the head of the river." (Fisheries and Game Commissioners' Report, 1880, pp. 22-23)

1882 -- Maine Fisheries Commissioners report, "On the Presumpscot, at its source on Crooked River, a very great number of unusually large fish have been taken by the poachers for the last two or three years. The exceptional size and number of the fish has given increased incitement to the nefarious practice of spearing on the spawning bed. The very remarkable size of the fish and their unwonted number, warrant the conclusion that they are sea salmon planted by us in the head waters of the river at Norway and other tributaries of Sebago in the past years. The first salmon fry were planted in the Presumpscot in 1875. A large fish of 13 pounds was taken below the dam at the outlet of Sebago last June with hook and line. A man named Paul is now under arrest for spearing a fish weighing 24 pounds on Crooked River the middle of October. Several others have been arrested for spearing fish and there are also many other casees which will be prosecuted in due course. We feel warranted in the conclusion that most of these fish are results of our planting sea salmon, not only from the reasons we have assigned above, but from the added fact that we have now a series of eight good fishways on the Presumpscot river from Cumberland Mills to Sebago. .... There has been distributed this season Penobscot salmon fry in different rivers, as follows, viz: Presumpscot River, 140,000." (Fisheries and Game Commissioners' Report, 1882, pp. 10-11)

1893 -- Diary entry of John Warren, agent for Samuel Warren, for year 1893. Copied from original at Warren Memorial Library in Westbrook.

May 27, 1893: "Gage at White's Bridge is incorrect. Fishways in bad repair, need to be fixed."

June 17, 1893: "Met with Fish Commissioner. He said, 'present fishway totally without merit.' Other fishway lower falls inadequate."

July 3, 1893 -- Warren states flow of 1,000 cfm needed for fishway. Note by Roger Wheeler states that, "JW in journal goes into some detail about directions for new fishway."

August 14, 1893: Warren reports new fishway is completed (presumably at dam at outlet of Sebago).

1967 -- Comments and observations made in a lengthy report on the Presumpscot River by DeRoche (1967), later summarized in an article for the State of Maine's official fish & game magazine, comprise the most complete overview of the Presumpscot River's condition and future potential since the 1867-1880s era state fisheries commissioner reports. DeRoche's report indicates both a continued interest in the restoration of the river for its native fish species as well as a sobering assessment of the river's sharp decline in water quality, the disappearance of all previously constructed fishways at the rivers' dams and the continued presence of native salmonids in most of the river's tributaries.


Historic issues specific to Atlantic salmon:

Because licensee on numerous occasions has questioned the historic abundance, extent and even existence of sea-run Atlantic salmon in the Presumpscot River, we alert the Commission to several recent occasions on which it has affirmed the former existence and abundance of sea-run Atlantic salmon in the Presumpscot River and attributed their disappearance, in part, to licensee's dams:

"The Presumpscot River has eight dams on the main stem 21.6 mile long section between head-of-tide and Sebago Lake. Cumulative impacts on the anadromous fishery extend throughout this reach. Historically (pre-1900), the river supported anadromous runs of Atlantic salmon and shad." (Order Issuing License at North Gorham Dam; 65 FERC ¶ 64,348; Nov. 22, 1993)

and;

"Prior to dam construction and pollution, the Presumpscot River supported an abundance of both sea-run and landlocked Atlantic salmon." (Director's Order For Minimum Flows in Eel Weir Reach; 58 FERC ¶ 62,006; Feb. 6, 1992)


Atkins (1867) reported, "The Presumpscot was originally peopled with salmon, shad, alewives and several other species. We have the testimony of Mr. James Lord, aged eighty-five, who lives near Presumpscot Falls, to their abundance. The salmon were practically destroyed by the erection of the dam at the head of tide in 1802. That year they accumulated in unusual numbers below the dam in their attempts to pass it, and a great many were caught. At the present time there is no doubt that a few salmon run into the river each year; for they are occasionally taken. In 1866 four were taken with a dip-net at Presumpscot falls .... It would seem that the bright pure waters of this river are better fitted for salmon than the other species and we think that efforts to restock it should have them first in mind."

Kendall (1935) reported, "Presumpscot River -- This was one of the finest salmon rivers for its size in the state, but was early obstructed by dams and only a few salmon have since been taken. Salmon were reported at Cumberland Mills and Saccarappa, in 1873."

The Maine Fisheries Commissioners (1882) reported that the first planting of juvenile Atlantic salmon in the Presumpscot occured in 1875 followed by further plantings in 1876 and (at least) in 1882. As such, reports by Atkins and Kendall of adult salmon in the river in 1866 and 1873 indicate the presence of Atlantic salmon immediately prior to any stockings and prior to the date any adult returns from the first stockings would return to spawn.

Comments below by the Maine Fisheries Commissioners (1882) indicate the existence of large, adult Atlantic salmon in both the Presumpscot River and the Crooked River in the period 1880-1882. The coincident construction of fishways on the river and the stocking of the basin with juvenile Atlantic salmon suggests the large, adult salmon observed throughout the drainage during this period originated from both natural reproduction and the stocking program initiated in 1875:

"On the Presumpscot, at its source on Crooked River, a very great number of unusually large fish have been taken by the poachers for the last two or three years. The exceptional size and number of the fish has given increased incitement to the nefarious practice of spearing on the spawning bed. The very remarkable size of the fish and their unwonted number, warrant the conclusion that they are sea salmon planted by us in the head waters of the river at Norway and other tributaries of Sebago in the past years. The first salmon fry were planted in the Presumpscot in 1875. A large fish of 13 pounds was taken below the dam at the outlet of Sebago last June with hook and line. A man named Paul is now under arrest for spearing a fish weighing 24 pounds on Crooked River the middle of October. Several others have been arrested for spearing fish and there are also many other casees which will be prosecuted in due course. We feel warranted in the conclusion that most of these fish are results of our planting sea salmon, not only from the reasons we have assigned above, but from the added fact that we have now a series of eight good fishways on the Presumpscot river from Cumberland Mills to Sebago. .... There has been distributed this season Penobscot salmon fry in different rivers, as follows, viz: Presumpscot River, 140,000."

III. Rationale for License Denial, Decommissioning and Removal

A. Licensee's and others dams have destroyed virtually all historic spawning and nursery habitat for Atlantic salmon in the Presumpscot River between Cumberland Mills and the upstream limit of the North Gorham dam impoundment. Restoring "balance" to the river and providing for equal consideration of non-power uses (FPA Sect. 10(a)(1) and 4(e)) requires the Commission to craft licenses which restore a "balance" between the competing, legitimate uses of the river. To renew all five licenses in this proceeding provides neither "balance" or "equal consideration" since such an action irretrievably commits all of the Presumpscot River from Cumberland Mills to the Eel Weir Reach to a use that fundamentally precludes its use and viability as habitat for the river's native Atlantic salmon.

In its desire to extract the maximum amount of hydro-electric capacity from its dams on the Presumpscot River, licensee during the past century has raised the spillway height of each of its dams to a point as close as possible to the turbine outfall of its next dam.

By constructing power canals and situating its power houses to capture the additonal "head" of the small remnants of the natural falls below its dam spillways, licensee has diverted most of the natural flow from these very short, remnant free-flowing "tailwater reaches of the Presumpscot River.

By doing so, licensee has directly and deliberately eliminated nearly all of the free-flowing riverine habitat of the Presumpscot River from the spillway of the Cumberland Mills dams to the upstream impoundment limit of the Dundee Falls Dam. By doing so, licensee has converted this entire segment of the Presumpscot River into a continuous chain of artificial, hydrologically altered impoundment environments.

Davies et al. (1999) describe the specific impacts of this impounding on primary and secondary productivity:

"Dams on rivers reduce water velocities, increase depth, reduce re-aeration potential resulting in reduced dissolved oxygen, reduced light penetration, and promote retention of settleable particles in the upstream impoundment. The settled solids alter benthic habitat and contribute to oxygen demand. Temperature regimes are also dramatically altered, with the degree of the alteration determined by the specifics of the shape of the impoundment and the operating regime of the hydroelectric project. In effect, the ponded area assumes some of the characteristics of a lake, but typically the ponded water volume has a much shorter retention time as compared to a natural lake. Thus the riverine biological community is subjected to quasi-lake conditions for which they are not adapted. Lake-dweling organisms generally also find run-of-river impoundments unfavorable. The short retention time precludes the possibility of the development of a planktonic community, the typical food base of lakes. High flow volumes in spring and fall experienced by the river are also reflected in riverine impoundments, frequently causing scouring of accumulated organic matter on the substrate and partially restoring the riverine, mineral-based substrate. This constitutes a periodic disturbance of benthic habitat for typical lake-dwelling organisms, resulting in lower production. Biological assessments of impounded benthic communities reveal that the detrimental effects of these unnatural conditions usually results in the severe loss of both community structure and function. This is detected in biological metrics as reduced sample abundance and richness, increased Hilsenhoff Biotic Index values (due to loss of sensitive taxa), increased relative Diptera abundance, increased numbers of non-insects and reductions in filter feeding groups. These findings are indicative of the intolerance of lotic-adapted communities to the effects of reduced water velocities and indicate a shift in community function toward a food base of settled organic matter."

From Davies, S. P., et al. 1999. "Biological Effects of Hydropower Impoundment," in Biomonitoring Retrospective: Fifteen Year Summary for Maine Rivers and Streams, Maine Department of Environmental Protection (DEPLW1996-26), p. 17.

In 1997, the Commission concluded that hydro-electric dam impoundments offer no suitable habitat for juvenile and spawing Atlantic salmon and the presence of dam impoundents reduces salmon smolt production in these impounded areas to zero. Staff writing in the Lower Penobscot Basin FEIS (FERC FEIS-0082) concluded n reference to the proposed Basin Mills Dam: "Nursery habitat for juvenile salmon is characterized by depths of 2 inches to several feet (depending on fish size and age), relatively high velocities (about 2 fps) typical of riffle and run areas, and rubble substrate. Although creating the impoundment would not alter substrate, changes in water depth and velocity would alter the suitability and function of existing salmon habitat in the affected river reach ... We conclude that constructing the development would eliminate all smolt production units in the area." (FERC FEIS-0082 at F-31)

We note that licensee has never disputed the Commission's finding that Atlantic salmon smolt production in dam impoundments is zero; nor does licensee offer any potential mitigation or enhancement for lost Atlantic salmon smolt production in the project areas caused by the presence of its nearly continuous dam impoundments. Licensee has only attempted to assert that Atlantic salmon never existed in the project areas and that there is no interest by parties to this proceeding in restoring Atlantic salmon to the project areas. Historical data provided herein and the repeated request for Atlantic salmon restoration by the intervenors in this filing refute both of licensee's claims.

B. Commission staff should ignore licensee's attempts to use the "orphan's alibi" to absolve itself from responsibility to provide necessary conditions for Atlantic salmon populations to exist in the project areas.

"The 'orphan's alibi' is one where a child who murdered both his parents asks for leniency on the grounds that he is an orphan." -- old lawyer's joke.

Throughout this proceeding, licensee has attempted to use a variant of the "orphan's alibi" to dismiss citizen requests for operational changes at licensee's dams which would allow for the restoration of native, migratory species by stating that the river, in its current configuration, offers little or no suitable habitat for these species, thus rendering such citizen requests fantastical and unworthy of consideration.

Licensee has cited past statements by resource agencies about fisheries restoration potential of the Presumpscot River based on its existing condition and configuration, and purported that these statements represent the agencies' view of the river's potential even if the existing limiting factors on the river today (no fish passage, fully impounded) were substantially mitigated by this or other proceedings.

Licensee has also attempted to dismiss or diminish recent, active interest in Atlantic salmon restoration on the Presumpscot on the rather bizarre basis that by purporting that until very recently, there was little interest expressed by agencies or citizens in salmon restoration on the river. The historic material provided in this filing provides ample evidence of an active interest in Atlantic salmon restoration on this river by local citizens for the past three hundred years with the key obstacle to such restoration the existence of dam owners, like the present licensee, who refuse to provide fish passage and habitat for salmon by virtue of the condition and profusion of their dams.

In each case, licensee has curiously failed to note that the singular reason for a "lack of interest" in salmon restoration on the Presumpscot River in the recent past is due solely to the following reasons:

a) Licensee's massive waste discharges in the lower river that made the reach barely habitable by Atlantic salmon.
b) Licensee's daisy-chain of impoundments that have eliminated nearly all of the nursery habitat for salmon in the main-stem of the river between Cumberland Mills and Dundee Dam.
c) Licensee's refusal to construct fishways at its dams to allow Atlantic salmon to reach clean, free-flowing habitat in tributaries above Cumberland Mills.
d) That the proper statutory vehicle for citizens and agencies to seek changes to most of these conditions preventing the restoration of Atlantic salmon to the Presumpscot is the present re-licensing proceeding in which we and others are actively engaged.

If licensee truly wants to know why there has been little interest in the recent past in salmon restoration in the Presumpscot, it need only look in the mirror.

This subject deserves greater discussion as it regards licensee's past characterizations of agency interest in the restoration of Atlantic salmon on the Presumpscot River.

After its response to our August, 1999 motion for EIS which asserted that the Presumpscot is not considered "an Atlantic salmon river" by the Maine Atlantic Salmon Commission (MASC) or any other entity, licensee was forced to retract this statement after the Maine Atlantic Salmon Commission informed the Commission by letter in Sept. 1999 that the Presumpscot is considered an "Atlantic salmon river" by the commission (Sept. 22, 1999 Scoping Comments on SD-1 from Frederick Kircheis, executive director, MASC.)

Since this letter was made part of the record, licensee and its consultant have attempted to construe comments made by MASC staff during consultation on the Eel Weir Dam (FERC No. 2984) imply that restoration of Atlantic salmon to the Presumpscot is not that important to the MASC, and not worthy of serious consideration by the FERC.

For example, licensee's consultants' meeting summary on an Eel Weir Reach flow study meeting and a separate site visit in the fall of 2000 purport that an MASC biologist declared the Presumpscot a 'low priority' for the MASC. We dispute licensee's characterizaton of MASC's level of interest in the river since it is unlikely the MASC staff biologist, Norm Dube, would have participated in a Sept. 2000 consultation meeting, and Oct. 2000 site visit and flow study scoping meeting; and requested that juvenile Atlantic salmon be included as a target species in the flow studies for the Eel Weir reach of the Presumpscot River, as he did, if the MASC had little or no interest in restoring salmon to the river. ( "Eel Weir Bypass Instream Flow Study -- Draft Study Plan," S.D. Warren, Nov. 2000).

We leave it for the Commission and its staff to assess whether an MASC staff biologist's decision to drive 150 miles from his office in Bangor, Maine on two separate occasions to participate in consultation meetings regarding the Eel Weir reach of the Presumpscot River represents an "interest" or a "lack of interest" by the agency in the Presumpscot River; and whether the same MASC biologist's request to include juvenile Atlantic salmon as a target species for flow studies in the Eel Weir reach represents an "interest" or "lack of interest" by the agency in restoring Atlantic salmon to that or other portions of the Presumpscot River in the future.

We hope the Commission and its staff see the licensee's "tail wagging the dog" argument for what it is -- a transparent ploy to use a public agency's previous caution in commiting resources to a severely degraded river system (caused directly by the licensee's dams) as the sole excuse for the licensee to avoid any responsibility to reduce the severe harm its own actions to the same species the MASC is legislatively mandated to restore on the Presumpscot River.


C. Removal of the Saccarappa, Mallison and Little Falls Dams is warranted under Sections 10(a) and 4(e) of the Federal Power Act:

"Sections 4(e) and 10(a)(1) of the FPA require the Commission to give equal consideration to all uses of the waterway on which a project is located. When the Commission reviews a project, the recreational, fish and wildlife resources, and other non-developmental values of the involved waterway are considered equally with power and other developmental values. In determining whether, and under what conditions, a hydropower license should be issued, the Commission must weigh the various economic and environmental trade-offs involved in the decision."

-- From Order Issuing New License (Major Project), Project No. 2519-003-Maine, Fred E. Springer, Director, FERC Office of Hydropower Licensing, Nov. 22, 1993; 65 FERC ¶ 64,348, emphasis added.

In comparison to licensee's, our recommended action is by far the "best adapted to a comprehensive scheme for improving and developing a waterway or waterways ..." as required under the following language of Section 10(a):

""That the project adopted ... shall be such as in the judgment of the Commission will be best adapted to a comprehensive scheme for improving and developing a waterway or waterways for the use and benefit of interstate commerce, for the improvement and utilization of water power development, for the adequate protection, mitigation, and enhancement of fish and wildlife (including related spawning grounds and habitat), and for other beneficial public uses, including irrigation, flood control, water supply, and recreational and other purposes referred to in section 4 (e) ..."

As part of our comprehensive and integrated plan or "scheme" for the waterway, we propose license denial and decommissioning of the Saccarappa Falls, Mallison Falls and Little Falls projects as well as re-licensing and continued operation of the Dundee and Gambo Falls projects with appropriate terms and conditions. Equipped with our recommended action and licensee's recommended action (per its application for re-license), the Commission can conduct the requisite analysis to determine which of the recommended actions is "best adapted to a comprehensive scheme for improving and developing a waterway ..." in accordance with the standards of Section 10(a).

In comparison with licensee's recommended action, our recommended action for the Presumpscot River and project areas is embedded in a comprehensive and integrated plan for the waterway which allows for a much wider variety of public uses and benefits than licensee's recommended action. Our plan and recommended action provides for the continuation of substantial and valuable power benefits to the licensee and new and valuable recreational benefits accruing from the restoration of one third of the total length of the Presumpscot River.

Under our comprehensive plan and recommended action, two of licensee's five projects in the proceeding would be relicensed under appropriate license conditions as determined by the Commission and continue to provide electricity to help meet licensee's mill's energy requirements and assist licensee's "competitiveness." Licensee would also continue receiving power benefits from its Eel Weir project on the river to supplement its energy needs. Under our proposal, licensee would still retain 66 percent of its existing power generation benefits from the Presumpscot River. Under our proposal, the existing public uses of two of licensee's projects, Gambo and Dundee, for swimming, boating, stillwater angling and other recreation would be preserved, in particular the town of Windham's public beach and swimming area on the Dundee impoundment.

· Under our proposal, the existing public uses and benefits of the river would be greatly expanded and improved through the restoration of the river's free-flowing habitat from the base of the Saccarappa Falls to the base of the Gambo Falls. Our proposal restores approx. 7 miles of free-flowing riverine habitat to the river; licensee's restores none.

· Our proposal provides an additional 7 miles of free-flowing riverine habitat preferred by Atlantic salmon and other riverine salmonids to the river; licensee's proposal provides none.

· Our proposal restores the habitat and access necessary to re-establish self-sustaining salmon and salmonid populations to a significant portion of the project area; licensee's proposal will continue to preclude any such populations from becoming re-established.

· Our proposal provides approx. 7 miles of free-flowing river for canoeing, kayaking and innertubing; licensee's proposal provides none. Our proposal will offer the public the rare and spectacular sight of wild resident and sea-run Atlantic salmon leaping Saccarappa, Mallison and Little Falls; licensee's proposal will not.

· With the provision of a small fish passage device at Cumberland Mills, our proposal will provide free access and historic habitat conditions for all of the river's native migratory fish species from Casco Bay to Gambo Falls (more than 15 river miles); licensee's proposal will not.

· Our proposal represents a credible, achievable and cost-effective plan to accommodate a wide variety of legitimate and beneficial power and non-power uses of the Presumpscot River for citizens and industry, including provisions for the protection, mitigation and enhancement of the river's indigenous fish and wildlife species. Licensee's proposal does not.

· Our proposal recognizes and accommodates licensee's legitimate desire to receive hydropower benefits from the Presumpscot River and incorporates this desire into a comprehensive plan for the river which also accommodates legitimate non-power uses requiring free-flowing, riverine habitat. Licensee's proposal does not.

· Our proposal is part of an integrated, comprehensive multiple-use plan for the Presumpscot River which seeks and achieves an appropriate balance between a diverse array of contemporary societal benefits and needs, including the licensee's. Licensee's proposal is not.

D. OUR RECOMMENDED ACTION DOES A FAR BETTER JOB OF SATISFYING SECTION 10(A) AND SECTION 4(E) OF THE FEDERAL POWER ACT THAN LICENSEE'S RECOMMENDED ACTION AND AS SUCH MUST BE SELECTED OVER LICENSEE'S.

The contrast in vision, scope and diversity of benefits provided by our proposal as compared to licensee's is particularly pertinent to the Commission's statutory obligation to issue licenses only when they are in accordance with the Federal Power Act, including Section 10(a) as revised and amended by the U.S. Congress:

"That the project adopted ... shall be such as in the judgment of the Commission will be best adapted to a comprehensive scheme for improving and developing a waterway or waterways for the use and benefit of interstate commerce, for the improvement and utilization of water power development, for the adequate protection, mitigation, and enhancement of fish and wildlife (including related spawning grounds and habitat), and for other beneficial public uses, including irrigation, flood control, water supply, and recreational and other purposes referred to in section 4 (e) ..."

In comparison to licensee's, our recommended action is far better adapted to satisfying the many uses and benefits Section 10(a) specifically details as components which should comprise "a comprehensive scheme for improving and developing a waterway ..." As such, our recommended action easily merits the Commission's preference when compared to licensee's. For example:

· Our proposal provides for the utilization of water power development on the waterway by recommending re-licensing, with appropriate conditions, licensee's Dundee and Gambo Falls projects and recognizing the existing output of licensee's Eel Weir Project and the North Gorham project, owned by FPL Group. Our proposal will provide significant and new non-power benefits to the public while preserving 73 percent of the river's existing installed capacity (11.5 megawatts) and 66 percent of licensee's exising installed capacity (9.25 megawatts). Licensee's proposal provides for an additional 3.15 megawatts of capacity compared with our proposal; but does so only at the expense of all of the historic, free-flowing habitat in the project areas and the valuable non-power benefits restoration of this habitat would provide.

· Our proposal provides for significant enhancement of the Presumpscot's native fisheries in the project areas, including spawning grounds and habitat, by restoring approx. 7 miles of free-flowing spawning and rearing habitat for the river's native Atlantic salmon, brook trout and other species and creating the necessary conditions for the re-establishment of these valuable and highly desirable species to a significant segment of the Presumpscot River. In contrast, licensee's proposal provides no enhancement of native salmon or salmonid habitat anywhere in the river and will preclude and prohibit succesful re-establishment of self-sustaining populations of these species to the project waters by continuing to deny these species their required and historic free-flowing spawning and rearing habitat.

· Our proposal provides commensurate mitigation for the significant amount of free-flowing habitat inundated and destroyed by the Dundee and Gambo projects by restoring all of the free-flowing habitat in the Saccarappa, Little Falls and Mallison Falls project areas. In contrast, licensee's proposal provides absolutely no mitigation to replace or even partially replace the approx. 12 miles of historic free-flowing salmonid habitat impounded and destroyed by its five projects. Nor does licensee provide any mitigation to replace the valuable historic native fisheries which were destroyed by the construction of licensee's projects. In fact, nearly all of the project mitigation contemplated by licensee (potential eel passage, minimum bypass flows) would undoubtedly be part of mandatory license conditions under Sect. 401 of the Clean Water Act and Sect. 18 of the Federal Power Act anyways. We note that licensee and agencies disagree over appropriate bypass flows and American eel protection (Saccarappa Application at E2-26). In contrast to licensee's proposal, our proposal will provide full flows (as opposed to minimum) for bypass reaches on the Saccarappa, Little Falls and Mallison projects since the river will be restored to its natural condition.

· Our proposal provides protection for the river's native fish species by restoring a substantial area of free-flowing habitat to the project area, thus ensuring these species will have sufficient spawning and rearing habitat to maintain self-sustaining populations. In contrast, licensee's proposal provides no protection for fish species native to the project area (salmon and salmonids) since its proposal calls for maintaining project impoundments in a way that inundates virtually all of the free-flowing spawning and rearing habitat these species require.

· Our proposal will provide significant enhancements and protection for adult and juvenile American eel, a priority species for the State of Maine in these waters. Removal of the Mallison, Little Falls and Saccarappa Dams will eliminate up and downstream passage inefficiencies for the species at these projects, eliminate turbine and related mortality for downmigrating adult silver eels at these projects, reduce cumulative mortality on the entire river, and relieve licensee of the potentially substantial, long-term costs associated with providing safe passage for American eel at these projects. In this regard, our proposal offers superior enhancement and protection to American eel than licensee's proposal. While licensee's proposal (passage devices, turbine shutdowns) may reduce passage inefficiency and mortality at three projects, our proposal will eliminate them. We also note that licensee has expressed reluctance to provide any protection or enhancements for the Presumpscot's eel resource, as evidenced by the Oct. 28, 1998 Substantive Disagreement Meeting regarding this issue and fisheries agencies rejections as inadequate licensee's downstream protection proposal (Saccarappa Application at E2-33) and by its statement that, "it is unclear whether upstream and downstream passage improvements at the Project would appreciably benefit the American eel population or the number of eels returning to U.S. rivers." (Ibid.) Contrary to licensee, we are quite confident the Presumpscot's native eel population will greatly benefit from not being ground up and lacerated in licensee's turbines or barred by licensee's dams from reaching preferred habitat. Our proposal will fully accomplish these common-sense objectives; licensee's will not.

· Our proposal will preserve existing recreational uses and benefits in the project areas and the river as a whole while creating new uses and benefits that are highly valued and desired by local and visiting recreationists. Under our proposal, ample opportunities for stillwater boating, angling, swimming and other recreation will still exist on the Dundee and Gambo project impoundments, where most of this activity currently occurs. But significantly, our proposal will create substantial new recreational benefits, particularly riverine angling for wild salmonids and other species, canoeing, kayaking, innertubing and wildlife viewing in free-flowing water. Our proposal will provide public viewing opportunities for riverine and sea-run Atlantic salmon leaping Saccarappa, Mallison and Little Falls. Unless expressly forbidden by abuttors, our proposal will also provide new and extensive angling opportunities for wading or shore anglers in the shallow, free-flowing habitat of the river from Gambo Falls to the base of Saccarappa Falls. This type of opportunity is largely absent in the project areas because of impoundment depths. In contrast, Licensee's proposal offers none of these new recreational benefits and uses and in fact definitively precludes most or all of them.

· Our proposal creates the opportunity for increased economic benefits for communities and their citizens near the Presumpscot River. The restoration of a 7-mile long high-quality, scenic riverine fishery for salmon and other salmonids will attract visiting anglers who will rely on local merchants for equipment, food, lodging, services, canoe rentals, guides and other products. Canoeists will be attracted to a 15 mile-long canoe trip from Gambo Falls to Casco Bay with the provision of portage facilities at Cumberland Mills. Anglers from across Maine and New England regularly drive dozens or hundreds of miles to seek landlocked, sea-run salmon and trout in scenic, free-flowing settings. Nobody travels any distance to fish in a small hydro impoundment. Licensee's proposal provides no opportunity for increased economic benefits to communities and citizens near the Presumpscot RIver. Since licensee proposes its projects to remain essentially as they are today, any economic benefits its impoundments provide are already being provided.

· Our proposal looks at the Presumpscot River in a comprehensive, multiple-use fashion and allows for a wide diversity of valuable power and non-power benefits. Licensee's proposal looks at the Presumpscot River in a narrow, single-use fashion which restricts the diversity of non-power uses to only those which can be conducted on a 10-mile-long chain of slackwater dam impoundments.

· Our proposal represents a careful, comprehensive effort to provide a balance of legitimate power and non-power uses on the Presumpscot River and a balanced mix of riverine and stillwater recreation and riverine and stillwater fish and wildlife habitat. Licensee's proposal makes no effort to balance legitimate power and non-power uses of the Presumpscot Riiver. Instead, licensee's proposal gives unquestioned primacy to its own private use of the river for power production and precludes any use or benefit requiring something other than a 10 mile dam impoundment.

· Our proposal mitigates for and significantly reduces the cumulative impacts of these projects on native, migratory fish species -- an impact specifically identified by the Commission in its Nov. 1993 license issuance for the North Gorham Dam: "The Presumpscot River has eight dams on the main stem 21.6 mile long section between head-of-tide and Sebago Lake. Cumulative impacts on the anadromous fishery extend throughout this reach. Historically (pre-1900), the river supported anadromous runs of Atlantic salmon and shad." Licensee's proposal provides no relief for the cumulative impacts of these projects, impacts which have resulted in the extirpation and prevent the restoration of Atlantic salmon and shad in the river above Cumberland Mills.

· Our proposal looks to the future by adopting an enlightened, integrated approach to satisfying multiple needs and uses of the Presumpscot River in the coming century . Licensee's proposal looks to the past by saying half of the Presumpscot River should remain impounded for the next 40 years because that's the way it's been for the last 80 years.

· In keeping with Section 10(a), our proposal improves the waterway and project areas by greatly increasing the river's free-flowing habitat with only a minor decrease in power production, allowing a wide variety of improvements in the recreational benefits and fisheries habitat over existing conditions. In stark contrast, licensee's proposal offers no improvements to the waterway since its proposal essentially calls for the project areas to remain completely impounded, as they for most of this century. As argued above, the value of our enhancements greatly exceed the value of those of licensee's intended for the same purpose (eel passage, recreation, bypass flows). Others, such as boat access points, can easily be accomplished through other means whether the projects continue to exist or not.

· While licensee's application does not make a single mention of the restoration of the lower Presumpscot River through the removal of the Smelt Hill Dam, our proposal recognizes and integrates this action as part of a comprehensive plan for the waterway which seeks to achieve a high degree of ecosystem restoration with a small reduction in power production. The fact that the dams we have proposed for license denial are the lowest power producers on the river; are the lowermost dams in this proceeding and are consecutive on the river; and that they are directly above the soon-to-be restored reach and will create a 15 mile (nearly) free-flowing river reconnected to the sea is not a coincidence. It is a direct result of the careful analysis we have invested in creating a truly "comprehensive" plan for the Presumpscot River. Licensee's proposal, fixated solely on its own perceived and unsubstantiated "needs", fails to seek or achieve this level of analysis and integration which Congress clearly desired when amending Section 10(a) and 4(e) in 1986.

E. OUR RECOMMENDED ACTION FULLY SATISFIES THE "EQUAL CONSIDERATION" STANDARD OF SECTION 4(E) OF THE FEDERAL POWER ACT; LICENSEE'S DOES NOT EVEN ATTEMPT TO DO SO.

Section 4(e) of the Federal Power Act requires that, "In deciding whether to issue any license under this Part for any project, the Commission, in addition to the power and development purposes for which license are issued, shall give equal consideration to the purposes of energy conservation, the protection, mitigation, and enhancement of, fish and wildlife (including related spawning grounds and habitat), the protection of recreational opportunities, and the preservation of other aspects of environmental quality."

As the Commission states in its 1994 Policy Statement (Docket RM:93-23), changes by Congress to the Federal Power Act, including Section 10(a) and 4(e) had the following intent: "The 1986 legislation directed the Commission, when establishing license conditions, to reach an appropriate balance between power and other developmental interests and the protection of nondevelopmental resources, such as fish and wildlife."

As outlined in detail above, our recommended action fully satisfies the "equal consideration" requirement of Section 4(e) for nondevelopment resources as well as satisfying the "power and development purposes" for which licenses are granted. By accomplishing both of these objectives, our is the only recommended action before the Commission which comes even close to reaching the type "appropriate balance" which Congress directed the Commission to seek. More important, our recommended action is far superior to licensee's simply because ours actively and deliberately seeks and achieves the degree of harmonious balance between power and non-power uses Congress intended. In contrast, licensee's proposal fails to seek or achieve such an "appropriate balance" by steadfastly refusing to restore any free-flowing riverine habitat (except for existing bypass reaches) in the 12 miles of the project areas. As such, its proposal falls woefully short of both the "equal consideration" standard and other standards set forth in Section 4(e) and the Congressional intent behind them. For example:

· Licensee proposes to keep all 12 miles of the Presumpscot River in the project boundaries in fully impounded, leaving none of river in a condition suitable for non-power uses requiring free-flowing habitat, including protection and enhancement of the river's native, riverine fish species and riverine angling and recreation. If licensee's proposal represents an attempt to "strike" a balance, the strike is so faint as to be indiscernible.

· Licensee's proposal makes no commitment to explore and implement energy conservation measures at its mill or elsewhere to reduce its need for power from the Presumpscot River and to reduce the environmental damage (destruction of free-flowing habitat) its dams now exact on the Presumpscot River.

· Licensee's proposal offers no mitigation commensurate to the value of the 12-miles of free-flowing river its dams have destroyed; the historic spawning and rearing habitat for native, riverine fish its dams have destroyed; or the significant and valuable recreational opportunities (riverine angling and boating) its dams have destroyed.

· Licensee's proposal offers no enhancements for the river's pre-eminent native gamefish species, particularly salmon and brook trout, and precludes any future re-establishment of self-sustaining populations of these species in the project areas.

· While licensee contemplates some enhancements and protection for American eel, our recommended action provides far greater and certain protection and enhancement for the species by eliminating (rather than potentially reducing) passage inefficiency and mortality at three of licensee's five projects in this proceeding.

In contrast to licensee's, our recommended action seeks and achieves the "appropriate balance" Congress directed the Commission to seek by:

· Accommodating and providing for legitimate power and non-power uses of the Presumpscot River in an equitable, integrated and comprehensive fashion.
· Maintaining 72 percent of the existing installed hydroelectric capacity on the Presumpscot River and 66 percent of licensee's.
· Decommissioning three small hydropower dams on the river while leaving four much larger projects in operation.
· Providing abundant opportunities for stillwater and riverine recreation.
· Providing abundant and suitable habitat for native and exotic stillwater fish and wildlife species and native riverine and migratory fish and wildlife species.
· Restoring nearly one third of the Presumpscot River (7 miles) to its historic, free-flowing habitat conditions while impacting less than 10 percent of energy requirements at licensee's mill.
· In combination with ongoing restoration of the river below Cumberland Mills, restoring nearly three quarters of the Presumpscot River to a free-flowing condition suitable to its native resident and migratory fish species while reducing the river's power output by onlyone quarter.

Conclusion:

Our proposed license conditions are those which the Commission can claim, backed with substantial factual documentation, fully and harmoniously support the letter and intent of Congress in its passage of the Electric Consumers Protection Act and amendments of Sections 10(a)(1) and Sections 4(e) of the Federal Power Act; and the Magnuson-Stevens Fisheries Conservation Act, which characterizes the Presumpscot River as "essential fish habitat" for Atlantic salmon. By accepting licensee's proposal, not only would the Commission have to ignore and nullify the legislatively mandated mission of the Maine Atlantic Salmon Commission and other state and and federal natural resource agencies, ignore the unrefuted historic and present facts in the record for this proceeding, but would also have to contort, maim and otherwise disfigure the word "balance" to the point that it may as well be deleted from the dictionary.



IV. Proposed License Terms and Conditions

For the reasons and rationale above, we propose the Commission deny new licenses for the Saccarappa Falls, Mallison Falls and Little Falls dams and approve new licenses for the Gambo Falls and Dundee Falls dams subject to terms and conditions expressed below.

In the event the Commission declines to exercise its legal right to deny license at Saccarappa, Mallison and Little Falls, we recommend the following fish passage schedule and conditions for the dams in this proceeding:

I. Up and downstream passage at Saccarappa Falls required to be operational simultaneous with operation of up and downstream passage at the non-jurisdictional Cumberland Mills dam.

II. Upstream fish passage at Mallison, Little and Gambo Falls required to be operational no later than one migration season after BOTH of the following conditions are met:

a) Upstream fish passage is operational at Saccarappa.
b) In-stream monitoring* determines that members of one or more of target species (Atlantic salmon, American shad, alewife, blueback herring) are present at the base of Mallison Falls dam.

III. Downstream passage at Gambo, Little and Mallison Falls to be operational simultaneous with operation of upstream and downstream fish passage at Saccarappa Falls, or upon initiation of stocking of juvenile Atlantic salmon in waters above any of these dams, whichever comes first.

V. We propose the Commission defer construction upstream fish passage at the Dundee Falls dam for native migratory fish species except American eel until requested by the United States Fish & Wildlife Service.

VI. For American eels, whose juvenile life stage favors different fish passage devices than other native migratory species, we propose the Commission require the installation of upstream passage facilities for juvenile American eels to be operational at issuance of license for all dams in this proceeding. For adult American eels returning to the ocean to spawn, we recommend downstream passage facilities to be operational at license issuance at all of the dams in this proceeding.

* In-stream monitoring to be responsibility of licensee, with study and operational design developed in consultation with relevant state and federal agencies and submitted to FERC for review and approval.

RATIONALE:

The proposed fish passage terms & conditions is balanced because it gives ample and reasonable assurance to licensee that upstream fish passage will not be required unless and until field surveys determine that members of one or more of the target species are actually present at the base of the dam in question. Conditions will give agencies, NGOs and public reasonable assurance that upstream fish passage will be operational within one year of date in which monitoring shows target species are present at the base of the dam in question.

Proposed downstream passage schedule is balanced because it allows relevant parties the opportunity to immediately plan for and begin active re-introduction of target species in suitable habitat with reasonable assurance that downstream migrants will be provided with safe egress to marine habitat simultaneous or prior to installation of upstream passage for returning adult migrants.



V. CONCLUSION:

That the Presumpscot River is a native, historic home of Atlantic salmon is without question. That the habitat in the river has been drastically altered by licensee's dams is without question. That licensee's dams bar all passage of Atlantic salmon to the Presumpscot River above Cumberland Mills is without question. That virtually the entire Presumpscot River from the Cumberland Mills Dam to the North Gorham Dam is continuous series of deadwater impoundments is without question. That none of licensee's dams have functioning fish passage is without question. That flatwater dam impoundments are poor or unusable spawning and rearing habitat for Atlantic salmon is without question. That licensee has made no representation that the portion of Presumpscot River impacted by its dams is suitable habitat for adult and juvenile Atlantic salmon is without question. That licensee has made no proposal to provide fish passage for Atlantic salmon at any of its dams or to alter the extent of its dam impoundments is without question.

This scenario is not balanced since it fundamentally precludes one use of the river while gving full use and favor to another. The laws of the colonial Massachusetts Bay Colony, the State of Maine, the enabling legislation of several state and federal natural resource agences, the Federal Power Act, the Clean Water Act and the Magnuson-Stevens Fisheries Conservation Act all strive for an accommodation -- ie. a "balance" -- of river uses such that one worthwhile use does not fundamentally preclude others.

Electrical power can be generated via an overwhelming variety of contrivances in an enormous range of places. Significant amounts can be made available for useful purposes by designing electrical devices so that they use electricity efficiently (See Feb. 2001, Wired magazine article attached to this filing).

Unlike electricity, natural reproduicing populations of the species Salmo salar, the Atlantic salmon, can only occur in a very circumscribed range in the United States of America, historically from the Housatonic River in Connecticut to the Aroostook River in Maine. Within this geographic range, Atlantic salmon can only exist if they are provided with suitable rearing, spawning and growing habitat and safe and efficient access to these habitats. Where these necessary conditions have been denied by human actions, the species has ceased to exist. The population of Atlantic salmon in the United States has been reduced from over 500,000 adults in the 18th century to less than 1,000 adults in 2000. As the direct result of human alterations to its habitat, the species has now been rendered extinct or reduced to tiny remnant stocks in all of its historic range in the United States of America. In November 2000, the U.S. Fish & Wildlife Service and National Marine Fisheries Service determined that the few remaining remnant populations of Atlantic salmon are now in danger of extinction and declared them "endangered" under the United States Endangered Species Act.

The above scenario means that for Atlantic salmon to have any chance to be restored to their native, historic home in the Presumpscot River, several things must happen:

a) Passage must be provided at all dams standing between the Presumpscot's two remaining areas of free-flowing Atlantic salmon habitat, the Pleasant and Little Rivers.

b) Free-flowing spawning and rearing habitat in the river's main-stem must be restored by the removal of one or more of licensee's dams, with effective passage at any remaining dams below that restored habitat.

In his 1876 report to the Maine Legislature, Maine Fisheries Commissioner Charles Grandison Atkins wrote:

"Allow me to state, that in no one instance have we ever, from our own personal desire, enforced a fishway upon any mill owner. In every single instance have we been impelled either by newspaper attacks, or by the petition of the inhabitants of the locality, to take the legal steps that were necessary to produce the result."

This year, 125 years after the above words were written, an identical scenario has developed on the Presumpscot River. Local citizens have led efforts to secure the imminent removal of the head-of-tide Smelt Hill Dam. Local citizens have called for the construction of fish passageways and removal of unnecessary dams on the Presumpscot. Local newspapers have ardently supported these efforts and urged state and federal regulatory agencies to follow the will of the citizens. State and federal natural resource agencies, in direct response to citizen requests, have begun to amend old and outdated management plans for the Presumpscot River and bring them closer in line to the wishes of their constituents and recent and pending improvements in the river.

The history of the Presumpscot River and its watershed is well documented over a nearly 350 period. Central to this history, in the 1600s, the 1700s, the 1800s, the 1900s and this century is the call by local citizens upon local dam owners to provide for the passage and health of its native fish species so that they may be used and enjoyed. With this proceeding we are now entering the fifth consecutive century of citizens being forced to exercise various legal mechanisms to prevent dam owners from depriving access to the Presumpscot river's native fish stocks. It is hard to imagine that any license proceeding before the Commission has ever provided such an immense timeline where one issue, that of fish passage and suitable habitat, has such a dominant and consistent theme for so long.

In each and every century within this historic record, the key issue has been simple:

Whether one river user should have the right to completely deprive the river of its native fish runs and the public benefits these runs provide.

The key contrast to the scenario on the Presumpscot in 1876 and today is that the current owner of most of the dams on the Presumpscot, unlike the dam owners of a century before, steadfastly refuses to even consider providing at its dams the minimum conditions necessary to restore the Presumpscot River's native migratory fish species to their historic homes.

And unlike in 1876, when mill dams on the river were relatively small and left free-flowing river reaches between them and the Dundee and North Gorham dams did not exist, today virtually all the free-flowing habitat of the Presumpscot River has been removed from Cumberland Mills to the upper limit of the North Gorham impoundment, a distance of nearly 14 miles, representing almost one hundred percent of the river between Cumberland Mills and Sebago Lake.

Charles Atkins could use fishways as the sole method of restoring the fisheries of the Presumpscot because, at that time, significant portions of the river above Cumberland Mills remained free-flowing and capable of supporting Atlantic salmon. For Atkins the chief task was getting fish to the habitat via fishways.

Today, the licensee has and other dam owners have literally "consumed" this river in their dam impoundments, leaving little options for "balance" except returning some of the river back to its natural condition -- meaning dam removal.

Today, the Commission has the legal authority and sufficiently detailed record to begin the necessary first steps to redeem Chief Polin's, Charles' Atkins' and many others' vision of a river that works for people, for commerce, and for its native, migratory fish.



Roger Wheeler, President
Friends of Sebago Lake

Douglas Watts, Secretary and Director
Maine Council of the Atlantic Salmon Federation



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