Thursday, October 4, 2007

Revisit the Presumpscot Agreement-letter to DMR @ DEP

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

Commissioner George Lapointe
Maine Dept. of Marine Resources
State House Station 21
Augusta, ME 04333

Commissioner David Littell

Maine Dept. of Environmental Protection
State House Station 17
Augusta, ME 04333
October 1, 2007

RE: Proposed Presumpscot River Settlement Agreement (PSA)

Dear Commissioners:

Since 1999, Friends of Sebago Lake (FOSL) has participated in the federal re-licensing of SAPPI’s five Presumpscot River hydro-electric dams.
FOSL has submitted extensive comments to federal and state agencies during this relicensing period, including key historic research in 2002 which destroyed SAPPI’s claim that anadromous fish never swam upriver past their Presumpscot River dams. This research was cited in the U.S. Supreme Court case, S.D. Warren v. Maine BEP, in which the Supreme Court unanimously rejected SAPPI’s claim that their Presumpscot River dams are not subject to fish passage and other legal requirements under the U.S. Clean Water Act and Maine water quality statutes.
Since 1999, FOSL members have spent many thousands of dollars and hours participating in the FERC relicensing process of the Presumpscot River dams and its related state certification and post-licensing activities, including a lengthy settlement negotiation process with SAPPI and state agencies in 2004. During this period, FOSL has worked closely with Friends of the Presumpscot River (FOPR) and American Rivers on historic research for the Maine IF&W proceeding to compel SAPPI to provide fish passage at its Cumberland Mills Dam. FOSL researched and located every single version and amendment of Maine’s fish passage laws from 1700 to the present and pertinent sections of every single State of Maine Fisheries report from 1867 to the present in the Maine State Archives and Maine Legislative Law Library. Documents from all of this research are part of the evidentiary record in the Cumberland Mills fishway proceeding now before the Commissioner of Maine IF&W. Given the above, FOSL members were surprised when we read in the Portland Press-Herald that the State of Maine, Friends of the Presumpscot River and SAPPI had emerged from secret negotiations with a Proposed Settlement Agreement (PSA) which makes significant concessions and alterations to the federal licenses and Maine water quality certifications issued four years ago. When the Maine IF&W Cumberland Mills fishway proceeding was begun by FOPR in Nov. 2006, we told FOPR that we were ready to provide any assistance necessary. The only reason FOSL did not display an “interest” in the development of the PSA this spring is because we were never told of it. Since 2003, the State of Maine, FOSL and FOPR have defended the Presumpscot River dam licenses and certifications against an unprecedented legal assault by SAPPI which extended to the Maine Supreme Court, the United States Court of Appeals and the United States Supreme Court.

Our review of the PSA language shows that the State of Maine wishes to trade removal of the Cumberland Mills dam in exchange for massive alterations of the same FERC licenses and Maine water quality certifications we all have fought for four years to defend. FOSL has spent much its organizational resources and funds since 1999 developing, supporting and defending the same license and certification conditions that the PSA would abolish. As such, FOSL has a substantial fiduciary and organizational stake in the PSA. Because FOSL has been deprived of the opportunity to participate in the development of the PSA, we offer here our views on the version made available to us by FOPR in late July.

I. Why does the PSA exist? FOSL has been told that the PSA arose this spring out of discussions between SAPPI and State of Maine officials aimed at settling the Maine IF&W fishway proceeding initiated by FOPR at the Cumberland Mills Dam. The PSA proposes extensive alterations in FERC licenses and water quality certifications at the five SAPPI Presumpscot hydro dams as a quid pro quo for SAPPI removing the Cumberland Mills Dam. Removal of Cumberland Mills Dam would render moot the pending IF&W fishway proceeding. Fish passage at Cumberland Mills Dam can be achieved through the existing Maine IF&W fishway proceeding, thereby eliminating the need for any quid pro quo concessions such as those in the PSA. Under Maine’s fishway law, the Commissioner of IF&W may order SAPPI to immediately construct and operate effective fish passage at its Cumberland Mills Dam. The Commissioner can issue this order today. If SAPPI wishes to appeal a Fishway Order from the Commissioner to Maine’s courts, it may do so. If the IF&W Commissioner had issued the Fishway Order this spring, even a full appeal by SAPPI to the Maine Law Court would be concluded in about 24 months, ie. Spring 2009. The 2009 dam removal schedule in the PSA is nearly identical to what would occur with a completely litigated Fishway Order issued today.

A. Fishway Order for Cumberland Mills Dam is fully defensible in Maine’s courts and would provide fish passage at Cumberland Mills on the same schedule envisioned in the PSA. As such, the need and benefit of the PSA is not apparent to us. Why should Maine and its citizens have to pay SAPPI to comply with a lawful Fishway Order?

II. Cumberland Mills Dam vs. Edwards Dam.The PSA uses as its blueprint the 1998 Edwards Dam Settlement Agreement on the Kennebec River, ie. in exchange for funds to allow the Edwards Dam to be removed by date certain, substantial concessions were made on binding legal requirements at upstream dams owned by the financial contributors. The logic of the Edwards Dam Agreement was that the restoration benefits of removing the Edwards Dam were so immense that they more than compensated for license concessions and fish passage delays made at upriver dams. This logic does not apply to the Presumpscot River for several reasons. Removal of the Edwards Dam restored and made fully accessible 20 miles of ideal, near-tidal habitat on the third largest river system in New England, the Kennebec. In contrast, the entire
Presumpscot River from Casco Bay to Sebago Lake is 21 miles long -- about the distance from the Edwards Dam to the next upstream dam. The distance from the Cumberland Mills Dam to the Saccarappa Dam is about one mile. Removing the Cumberland Mills Dam will restore very little natural riverine habitat on the
Presumpscot River because (a) the Saccarappa Dam is located less than 1 mile above Cumberland Mills and (b) the Cumberland Mills “impoundment” is already quite riverine and natural in character. This is because Cumberland Mills Dam is built on a natural falls, Ammoncongin, and the dam only raises the water level of the Presumpscot by a few feet over its natural level. The physical and ecological ingredients that made the Edwards Dam Settlement appropriate for the Kennebec are absent on Presumpscot. Unlike the Edwards Dam Settlement, the Presumpscot PSA makes very large, long-term concessions at upstream dams in exchange for a dam removal that provides virtually no restoration benefits beyond what would be obtained through timely provision of mechanical fish passage. As noted above, prompt completion of the MDIFW
fishway proceeding would produce an identical restoration benefit at Cumberland Mills as the PSA -- fish passage at Cumberland Mills Dam in 2009 -- without the need for an extraregulatory quid pro quo.

III. Legality of the PSA.
Enactment of the PSA would require substantial modifications to the existing §401 water quality certifications issued by the Maine BEP in April 2003 for five of SAPPI’s Presumpscot River hydro dams.

§401 certifications can be modified by the Maine BEP only if certain statutory criteria are met.
38 MRSA §341-D et. seq. These criteria are:
1. The licensee has violated any condition of the license;
2. The licensee has obtained a license by misrepresenting or failing to disclose fully all relevant facts;
3. The licensed discharge or activity poses a threat to human health or the environment;
4. The license fails to include any standard or limitation legally required on the date of issuance;
5. There has been a change in any condition or circumstance that requires revocation,
suspension or a temporary or permanent modification of the terms of the license;
6. The licensee has violated any law administered by the Department; or
7. The licensee fails to include any standard or limitation required pursuant to the Federal Clean Air Act Amendments of 1990.
Unless at least one of these criteria is satisfied, the Maine BEP cannot modify the §401
certifications. The purpose and scope of the §401 certification modifications described in the PSA do not meet any of the criteria in §341-D. The only possible criteria that fits the PSA would be Criteria 5 (change in condition circumstance requiring modification). The PSA hinges theMaine BEP approving of a long list of §401 modifications offered to SAPPI in exchange for removal of the Cumberland Mills dam. However, absent the terms of the PSA itself, removal of Cumberland Mills Dam does not depend in any way upon modifications of §401s at other dams. As such, the purported ‘change in circumstance’ justifying modifications of the §401s is
circular. A request for modification cannot also be its own justification as a ‘change in circumstances,’ as it would have to be here.
Complicating this issue is the position recently espoused by the Maine Dept. of Attorney General and Maine DEP that §401 water quality certifications cannot be modified except through
specific re-opener clauses placed in the certifications at issuance. This position has been repeatedly stated by the staff of the Dept. of Attorney General in three citizen petitions filed with the Maine BEP in 2005 and 2006 requesting modifications of water quality certifications at
dams on the Kennebec and Androscoggin Rivers to protect American eel. If the legal arguments offered by the Maine Dept. of Attorney General in these cases is held true, the Maine BEP cannot modify the Presumpscot §401 certification in the manner required by the Presumpscot PSA because none of the conditions which need to be modified have re-openers.1

IV. Lack of A Restoration Vision
FOSL is very concerned that the proposed license and certification changes in the PSA are not built around a coherent, biologically-based restoration vision for the Presumpscot River. In fact, with particular regard to the 50 year licenses being offered to SAPPI, the PSA could be construed as preventing the restoration of the Presumpscot River rather than ensuring it; or as a writing off of the Presumpscot rather than ensuring its renewal within our lifetimes.

A. 50 year licenses.
FOSL can find no reason for this proffer in the PSA. It is the equivalent of two to two and a half license terms (eg. the license term for the Eel Weir Dam is 20 years). FOSL believes that 30 year license terms for dams as small as SAPPI’s Presumpscot dams are an affront to the intent of the Clean Water Act and Maine’s water quality laws.

1 In Sept. 2005, Maine BEP rejected a request by Conservation Law Foundation for a re-opener clause in the Gulf Island Dam §401 certification for future American eel passage, stating that a re-opener was not necessary because §341-D allowed anyone to request such a modification from the BEP at any time. In Nov. 2005, Maine DEP staff informed the BEP that Friends of the Kennebec Salmon was also free to petition the BEP to modify §401 conditions to address its concerns about a dam on Messalonskee Stream in Waterville, Maine. In 2006, after several §341-D Petitions to modify certifications were filed with the Board, Maine DEP staff and the Assistant Atty. General for the BEP suddenly changed their mind and stated it was “unclear” and “untested” whether the BEP had the legal authority to modify §401 certifications without a specific re-opener clause. The existence of the Presumpscot PSA suggests Maine DEP and the Maine AG have now apparently flip-flopped back to their original position that specific re-opener clauses are not required for Maine BEP to modify §401 certifications.

These dams are nearly 100 years old and have long ago been fully paid for. The only “new” costs are those necessary to bring the dams into long overdue compliance with federal and state water quality laws on the books for more than 30 years. Because of the FERC relicensing process, 50 year licenses will legally prevent any environmental review of these dams for half a century. The middle school and junior high school students of 2007 will be past or approaching 65 years of age before they will have a single chance to influence the management of the Presumpscot River. This proposal will prevent the next two generations of Maine citizens from having any say in the management of their own backyard river, the Presumpscot, for most of their natural lives. This is wrong.

B. Permanent Trap and Truck.
The PSA mandates “trap and truck” as the only fish passage method at the Mallison, Little Falls and Gambo Dams for most of, and potentially all of, the next 30 years. The State of Maine has never supported “permanent” trap and truck for the length of a standard FERC license and has long maintained a policy position firmly against it.
2 “Trap and truck” is not native fisheries restoration. It is fish stocking. Fish stocking is not native fisheries restoration, even if the fish being stocked are native to the watershed. Native fisheries restoration is the restoration of a wild, self-sustaining population of native fish to their native waters with little or no dependence upon or manipulation by humans. “Trap and Truck” is the opposite of this definition. Fish that are “trapped and trucked” are wholly dependent on humans and are intensively manipulated by humans. “Trap and Truck” directly thwarts and prevents the development of tributary and reach specific wild stocks because fisheries biologists at the trap site are forced to arbitrarily select the incoming fish for stocking at arbitrary upriver and tributary sites. The biological reasons against long-term trap and truck are innumerable. We are aware of no biological reasons which favor it. The only purpose for this concession appears to be as a financial enticement to SAPPI to comply with Maine law. The State of Maine and FOPR were

2 The State of Maine has rejected trap and truck over the term of 30-40 year FERC license in virtually every Maine dam licensing that we are aware of, including the Kennebec, Penobscot, Saco, Sebasticook and Androscoggin River drainages for the biological reasons outlined above.
completely opposed to long term trap and truck at the Presumpscot dams during the relicensing
proceedings for the exact same reasons as outlined above. Biological reasons do not change 180
degrees in just two years.

C. Atlantic Salmon

Permanent trap and truck (for the periods described in the PSA) prevents adult Atlantic salmon
passage when ambient water temperatures are 70 F or higher due to the risk of death of salmon
from the stress of handling at these temperatures. Even at temperatures lower than 70 F the
physical risk of injury to Atlantic salmon is acute. To avoid being captured they will swim at full speed head first into stainless steel walls and suffer severe injuries as a result.
This means that Atlantic salmon will not have any safe upstream passage to any of the
Presumpscot River drainage above the Saccarappa Dam impoundment for many decades; and to
the free-flowing Pleasant River and Dundee Bypass Reach (above the Gambo Dam) until 2036 at
the earliest, due to the complete prohibition of any fish passage at Gambo until after 2036. This
is critical because the only free-flowing usable portions of the Presumpscot left to Atlantic
salmon above Cumberland Mills Dam are in the Pleasant River, Dundee Bypass Reach and the
Little River. The impoundments of the Saccarappa, Mallison, Little Falls and Gambo Falls dams
flood an destroy nearly all of the main-stem Atlantic salmon spawning and rearing habitat in the
Presumpscot itself. The PSA makes no accommodation for restoration of Atlantic salmon to the Presumpscot River and portions of the PSA appear to preclude it. Recent statements by the Maine Atlantic Salmon Commission in the press that it has no plans to try and restore Atlantic salmon to the Presumpscot, even with the PSA, lends credence to our concern that the State of Maine has no plans of restoring Atlantic salmon to the Presumpscot or even helping those Atlantic salmon that make the attempt on their own. These are among the numerous concerns that FOSL has with the PSA. Since this is a “Preliminary” Settlement Agreement, it is our understanding that it remains open to discussion and the input of new and additional information. FOSL wishes to be a part of a wider discussion of the future of the PSA as it pertains to the future of the Presumpscot River and Sebago Lake.

Roger Wheeler, President
Friends of Sebago Lake
PO Box 561
Fryeburg, ME 04037