Saturday, March 16, 2013

LD 931 -- Bad for Sebago Lake

Representative Michael Shaw of Standish has presented another bill before the Legislature which attempts to legally mandate unnaturally high water levels at Sebago Lake. This is one is titled LD 931. No public hearing has been scheduled but it will be certainly up for public hearing within the next several weeks. The bill states in full:


Legislative Document  No. 931
House of Representatives, March 7, 2013

An Act To Prevent Fish Kills and To Allow for Recreational Use of Sebago Lake

Presented by Representative SHAW of Standish. Cosponsored by Senator PLUMMER of Cumberland and Representatives: KINNEY of Limington, MAREAN of Hollis, McCLELLAN of Raymond, POWERS of Naples, TYLER of Windham, VOLK of Scarborough, Senators: HAMPER of Oxford, KATZ of Kennebec.

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 12 MRSA §12760, sub-§10 is enacted to read:

10. Certain lakes, rivers and streams; flow prescribed. Notwithstanding any other provision of law to the contrary, the owners, lessors, operators or other persons in control of a dam on an outlet of Sebago Lake that controls the level of Sebago Lake and the flows entering the Presumpscot River shall maintain an instantaneous minimum water flow of 250 cubic feet per second through the passageway whenever the water levels of Sebago Lake fall to or below 265 feet mean sea level on or between May 15th and  August 1st annually, or 264 feet mean sea level on or between August 2nd and November 1st annually, in order to prevent fish kills and allow for recreational use of public access to Sebago Lake. When the 250 cubic feet per second instantaneous minimum water flow rate is implemented under this section, the owners, lessors, operators or other persons in control of a dam on the outlet of Sebago Lake shall divert an instantaneous minimum water flow of 100 cubic feet per second into any existing bypass to allow the upstream passage of salmon and other resident species from the Presumpscot River.

A. A person who violates this subsection commits a civil violation for which a fine of not less than $500 or more than $1,000 may be adjudged.
B. A person who violates this subsection after having been adjudicated as having committed 3 or more civil violations under this Part within the previous 5-year periodcommits a Class E crime.


This bill establishes water flow requirements for a dam and bypass area that controls the water level of Sebago Lake and the flows entering the Presumpscot River to prevent fish kills and to allow for recreational use of public access to Sebago Lake.


What is wrong with this bill? Let's start with the law the bill would amend -- 12 MRS §12760 -- which is the state's fishway law. Since the bill is all about water levels and has nothing to do with fishways, it's not even in the correct section of statute. There's a reason for this.

The Eel Weir Dam is a federally licensed dam, regulated by the Federal Energy Regulatory Commission. The Federal Power Act prohibits States from directly regulating the operations of federally licensed hydropower dams. The State must intervene, just like citizens, in the federal dam re-licensing process and submit comments and evidence, etc. 

The one legal avenue by which the State of Maine can directly regulate the operation of Eel Weir Dam is through state water quality certification (WQC) under the U.S. Clean Water Act. Maine issued its water quality certification for the dam on August 30, 2011. Even if the Legislature enacted LD 931 and the Governor signed it, the law would be void ab initio, which means 'invalid from the outset.' This is due to the way the U.S. Congress has since the 1920s limited the states' authority to regulate federally licensed dams under the Federal Power Act. 

I believe Rep. Shaw knows this -- and his actual intention in presenting LD 931 is to try and send a message to FERC showing that the majority of Sebago Lake users want a new license at the Eel Weir Dam which keeps water levels at 265 msl or higher all summer. I think he already knows the bill has a scant chance of enactment, but sees it as a useful political tool to convince FERC to issue a license keeping the lake has high as possible. 

Having LD 931 voted unanimously Ought Not To Pass by the Legislature's Fish & Wildlife Committee would send a clear message to FERC opposite that which Rep. Shaw intends. For that reason alone it is important for Sebago Lake supporters to contact your legislators on this bill and tell them you oppose it, especially if one of your legislators is on the list of sponsors and co-sponsors above.

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