Watts Offers Settlement on Sebago Lake Lawsuit

Doug Watts enjoying the 'beach' at Songo Beach, Sebago Lake State Park, August 2012. Photo by Roger Wheeler.

To: Friend of Sebago Lake
From: Doug Watts, Augusta, Maine. 

Roger Wheeler of Friends of Sebago Lake has sent out my Maine Superior Court appeal, filed May 8, 2013, for the Maine DEP water quality certification issued in August 2011 for the Eel Weir Dam at Sebago Lake. This U.S. Clean Water Act certification will legally control the health of Sebago Lake for the next 30-40 years. It's an important legal document.

What you might not know is that for many years FOSL and myself have been trying to amicably resolve the few outstanding issues at the dam and the lake with both the State and S.D. Warren. In 2011 a number of issues were resolved amicably, but several remained unsolved. These issues are putting in an inexpensive aluminum fishway at the Eel Weir Dam which can be used by native Sebago salmon; putting a reasonable amount of water back in the Eel Weir 'bypass' below the dam so native Sebago salmon can spawn and live in it; and allowing Sebago Lake to fall low enough in the fall and winter to allow for natural beach re-building and restoration.

Upon filing my court suit in December 2012 I wrote to the State and S.D. Warren's attorneys and asked them to sit down with me and try to resolve the few remaining issues at the dam instead of going to court. Both the State and Warren refused my offer to even have a single face-to-face meeting. This week, with my Superior Court pleading filed and completed, I have again extended to the State and S.D. Warren the same invitation to sit down and try to negotiate a mutually acceptable resolution and avoid a lengthy, expensive court case for all parties.

The actual 'defendant' in my Superior Court lawsuit is the Maine DEP, who issued the Clean Water Act certification. The MDEP is represented by the Maine Dept. of Attorney General. S.D. Warren, as the dam owner, is what is considered a 'party-in-interest' and have their own lawyers. If you are a Maine citizen, the Maine Dept. of Attorney General works for you. You are their employer. The Maine AG's office can decide tomorrow to sit down with me and try to work out a rational and reasonable outcome at Sebago which respects the law and protects the lake's health for the next 30-40 years. Since the AG's office works for you, the citizens of Maine, you can write and call and ask them to sit down and at least talk with me and see if we can at least try to reach a resolution which everyone can live with. The attorney assigned to this case is Assistant Attorney General Jerry Reid. His email address is:

Jerry.Reid@maine.gov

I would invite you to write to Mr. Reid and ask him why the State of Maine and its Dept. of Attorney General  is not even willing to sit down with me for one hour and see if we can settle this case and save the State tens of thousands of dollars in court and lawyer's costs, all of which you will have to pay.

The key issues in the appeal are described in document  which Roger Wheeler distributed to you. I've further summarized the basic themes on FOSL's blog page at:

http://friendsofsebago.blogspot.com/2013/03/sebago-lake-now-in-hands-of-maine.html

I sincerely believe that all of the outstanding issues at the Eel Weir Dam can be amicably resolved through negotiation -- if given the chance -- and at minimal cost to S.D. Warren. But for this positive and low-cost outcome to happen the State and S.D. Warren need to at least agree to sit down at the table with me and talk like normal human people do. This is all I am asking for. 

Thanks for your help and support, 

Doug Watts

P.S. My most recent settlement invitation to the State and S.D. Warren  is copied below: 

-----

From: info@dougwatts.com [mailto:info@dougwatts.com]

Sent: Thursday, May 16, 2013 02:15 PM

To: 'Matt Manahan', ''Reid, Jerry'', 'info@dougwatts.com', 'Cathy Connors'

Subject: Re: Watts Pleading in BCD-AP-13-01

Jerry, Matt, Cathy -- The WQC reservations of authority for post-certification action by DEP for fish passage and for water quality could be used as post-certification vehicles to address the very specific issues raised in my appeal. This route would not require any amendment to the WQC itself, but could be conducted entirely post-certification as individual administrative actions under the certification as issued in August 2011. For this reason, I will again extend to both the State and S.D. Warren my interest in attempting to pursue a meaningful, negotiated resolution of the actual issues still at large through such a procedural vehicle.

Thanks, 

Doug

Dry Spring Prevents Sebago Reaching Full Pond

An unusually dry April and May has caused Sebago Lake to remain more than a foot below its 'full pond' target of approx. 266.65 feet mean sea level (msl). From late April to early May the lake flattened out at 265.35 msl despite S.D. Warren allowing only the legally minimum flow from the Eel Weir Dam (15,000 cubic feet per minute or 250 cubic feet per second). Rainy weather on the weekend of May 11-12 has caused the lake to creep up about 1 inch but now has appeared to flatten out again. This rise corresponds closely to the amount of rain received over the weekend. 

The lake's behavior this spring illustrates a useful and basic lesson in lake hydrology. Simple logic dictates that when a lake is neither rising or falling, the amount of water entering the lake is about equal to the amount leaving the lake. But an additional factor is evaporation. Since we know that S.D. Warren is now releasing 250 cubic feet per second from the lake, if the lake level is not rising or falling, then we know that inflow to the lake minus evaporation from the lake's surface must equal its outflow. So we know that:

Inflow (I) -  evaporation (E) = 250 cfs (measured outflow).

Therefore, we know that inflow to the lake right now is somewhat higher than 250 cfs because some of the inflow is being lost to evaporation in the lake itself. On average, Sebago Lake loses 18 billion gallons of water to evaporation each year -- or nearly 50 million gallons a day -- depending on the weather, of course. To put this number in perspective, the average withdrawal of water from Sebago Lake for drinking water is about 24 million gallons per day. So, on an average day, Sebago Lake loses twice as much water from evaporation than from withdrawals by the Portland Water District for drinking water. Using PWD's estimates we can construct a basic water budget for the lake on an average daily basis:

Inflow = 544 million gpd (gallons per day).

Evaporation = 49 million gpd.

PWD drinking water withdrawal = 24 million gpd.

As these numbers show, the amount of water which directly exits Sebago Lake via the Presumpscot River is nearly 8 times larger than what is removed by evaporation and for drinking water. This also shows that PWD's drinking water withdrawals are inconsequential to the lake's water budget, totalling less than 5 percent of average daily inflow. Or to put it another way, the average outflow of Sebago Lake into the Presumpscot River is about 600 cubic feet per second (cfs). The PWD's daily withdrawal of water from Sebago Lake is equal to about 35 cfs.  So even if the PWD stopped taking any water from Sebago for drinking water, the outflow to the Presumpscot River would only increase by about 5 percent. 

So what does all this tell us? It tells us that inflow (ie. streamflow, groundwater inflow and precipitation) is what determines if Sebago Lake rises or falls. Evaporation and PWD's water withdrawals are fairly negligible -- and nothing can be done about evaporation anyways. Since late April, Sebago Lake has been close to equilibrium, with inflow and evaporation balancing the 250 cfs legal minimum outflow at the Eel Weir Dam. Absent a lot of precipitation in the next few weeks (ie. in the 8-10 inch range), Sebago Lake is not going to rise and will not hit its full pond 'target' of 266.65 feet. Is that a problem? No.

Natural lakes never hit the same 'full pond' height each and every year. The 266.65 msl 'full pond' height is an arbitrary, man-made number. This is for the same reason that rivers do not achieve the exact same flood height each and every year or the same low-water level each and every year. If S.D. Warren tried to raised the height of Sebago Lake now, its only option would be to drastically reduce outflows at the Eel Weir Dam, causing the Presumpscot River to go into an extreme and unnatural drought. This is because lakes do not naturally rise during dry weather any more than rivers do.

FOSL Research Fuels New Book On Maine's Alewives

Historic Research Funded and Conducted by Friends of Sebago Lake Fuels New Book on Maine's Alewives.

"Alewife" is a personal, biological and historical account of the alewife (Alosa pseudoharengus), one of the (formerly) most abundant sea-run fish of the U.S. Atlantic seaboard. It is the only full-length treatment of the natural and cultural history of this keystone wildlife species ever written.

The newly published book is written by Doug Watts of Augusta, with contributions by his brother Tim Watts and his father Allan Watts, who is now deceased. It is the product of 12 years of historic documentary research, much of it done at the Maine Archives in Augusta, Maine, on the troubled history of sea-run fish and dams in Maine and New England. Many of the historic documents in the book are published for the first time since they were written.

The front cover features an underwater photograph of native alewives, blueback herring and American shad ascending Presumpscot Falls on the Presumpscot River in Falmouth in June 2006 -- an event solely due to the removal of the Smelt Hill Dam at the river's head of tide in 2002. The book's chapter on the Presumpscot River ('The Alewife Who Went to the Supreme Court') is drawn from historic research conducted by Friends of the Sebago Lake on the earliest history of the Presumpscot River and Sebago Lake at the Maine Archives and the Maine Legislative Law Library. FOSL member Roger Wheeler and his students at the Mollyockett Middle School in Fryeburg contributed additional key early 1800s documents. 

"Alewife" tells the story of a fish, the alewife, once ubiquitous to the eastern U.S., which is almost gone due to wholly human causes; and a never-been-told 400 year history of many long forgotten people who labored mightily to bring the alewife back. It tells the story of the fish through its own eyes and life, apart from what it 'can do' for us. It depicts a place where cultural, natural, political and legal forces wildly collide. It's about the fight for, against, and over a dimunitive but once extremely abundant fish that still continues today in state and federal court rooms across the states of the eastern seaboard. It is about what nature in our backyards meant to us in the past, what it means today and what it might mean to us 10, 20 or 50 years from now. It's a story about a lot of disparate people over 400 years and how nature and culture provoked them for good, bad and indifferent. It's not nearly complete, there are many stories still untold, but gives a flavor for the battlefield, the stakes to be lost and gained and hints to where the tipping points have been and still are. It's a hybrid, with all the advantages and disadvantages an unorthodox approach entails. Bridging gaps might be its central theme. I wrote this for an adventurous reader who is not afraid to skip a chapter and then come back to it later. It is intentionally kaleidoscopic; a multi-levelled story. The essays owe much to the series of young adult books, "Tell Me Why," by Arkady Leokum. 

The book is in two sections. One section is selected verbatim public domain record excerpts describing the species and its use and abuse by humans in New England from the 1600s to present. Most of these documents were written in quill pen, discovered and hand copied by the author, and have never seen the light of day before. The second section tells, in a personal essay style, the story of the alewife, based mostly on recent efforts in New England to protect and save them. 

The book began several years ago as the historic texts with a short introduction and was originally intended for dissemination to fisheries scientists, environmental regulators and river conservationists as a technical, factual resource. At the instigation of a fellow writer, Kerry Hardy (who wrote the foreword), I loosened up to tell in a first-person voice my many encounters with these critters in the waters of New England since childhood and the obstacles one encounters trying to help them not go extinct. It's a tough racket. These personal stories echo back to the historical texts, which detail how people 50, 100, 200 years ago tried to do the same thing and encountered nearly identical obstacles, albeit time-shifted by a century or three. 

The tone and weight of the text is balanced to make it accessible to an informed and inquisitive lay audience and to a professional scientific audience; and above all, to be fully scientifically sourced. My brother and I's personal travails trying to help alewives survive are deliberately told in a 'camp-fire' fashion and with the level of humor and absurdity the details deserve.

Ordering info for: Alewife by Douglas Watts (hard copy and ebook).

---

About the Authors

This book is a collaboration of three writers who formed a family, which is how we all became the Brady Bunch, without girls. Doug Watts wrote most of it. Tim Watts wrote the good parts. Our dad, Allan Watts, wrote the poems. Our mom, Karen Foster, put up with three males who reeked of Woodsman's Lore insect repellent and clam flats mud. Doug went to UMaine-Orono. Tim went to the U.S. Marine Corps. Allan went to the Univ. of  Mass. None of this varied educational experience prepared us in any way for our contributions to this book about alewives because we didn't write it. They wrote us into their book. We are like robot-parasite-zombies of alewives, mindlessly obeying their every insane command.

Sebago Lake Now in Hands of Maine Superior Court

The August 30, 2011 state water quality certification (WQC) for the Eel Weir Dam at Sebago Lake is now in the hands of the Kennebec Superior Court and Justice Steven Horton. On Feb. 26, 2013 the State provided the Court with an administrative record for 2,000 documents, totalling more than 20,000 pages and dating back to 1995. This administrative record (in DVD format) is the history-on-paper of Sebago Lake for the past 25 years.

The Sebago WQC is being reviewed by Justice Horton due to a judicial appeal filed by FOSL member Douglas Watts of Augusta in September 2011, which has only now reached the Superior Court. The appeal focusses on three issues:

1. The WQC sets a minimum legal lake elevation of 262 feet msl for Sebago Lake. This is several feet above the fall and winter minima which Portland Water District records since 1910 show the lake achieves at least several times per decade. Maine's own State Geologist, Dr. Robert Marvinney, has repeatedly stated that it is critical for the lake to hit levels at or below 261 in the late fall several times per decade in order to allow for natural beach rebuilding and maintenance. The WQC would prevent this natural beach regeneration from happening, leading to even more severe shoreline erosion in the future.

2. The WQC does not require a fishway at the Eel Weir Dam for native Sebago salmon to reach their historic spawning grounds in the Presumpscot River directly below the dam. A fishway is necessary for Sebago salmon to be able to spawn in their native habitat in the upper Presumpscot River and then go back into the lake to eat their sole adult food, the native rainbow smelt of Sebago Lake. 

3. The WQC limits the amount of water in the upper, free-flowing reach of the Presumpscot River to just 10 percent of its natural flow; the other 90 percent is allowed to be diverted by SAPPI into its mile-long artificial power canal along the Middle Jam Road in Gorham. This 90 percent diversion of natural flow keeps the upper Presumpscot River in a perpetual state of severe drought, turning what should be a large natural river into a small trickle with most of the riverbed containing no water at all. 

By number of pages the legal issues raised appear complex but boiled down are very simple. In this WQC, the Maine DEP has decided to give Sebago Lake and the upper Presumpscot River far less basic protection under the U.S. Clean Water Act than it has given any other large river in Maine.

The U.S. Clean Water act puts very strict limits on how far the State can allow a hydroelectric dam to alter and interfere with the natural character of an enormous lake like Sebago and its outlet river, the Presumpscot. In this case, the MDEP has violated its minimum duty under the U.S. Clean Water Act. A judicial appeal to the Maine Superior Court is the only method available to correct the defects in the MDEP water quality certification, a certification which will legally control Sebago Lake for the next 40 years.

Under a schedule approved by Justice Horton in February, all pleadings and briefs must be filed by May with oral argument scheduled for June. What happens then is up to the Judge.

How Natural Lake Levels Rebuild Natural Beaches

Some people are unaware or skeptical to how natural fluctuations in lake levels annually rebuild natural lake beaches. These two photographs from Sebago Lake help illustrate the physical processes involved:

The above photo is from April 1, 1992 at Songo Beach at Sebago Lake State Park. It was taken by geologists with the Maine Geological Survey. On this day the lake was at 263.92 feet msl. The long 2-3 foot high piles of sand were bulldozed up the beach by two-foot thick ice floes being pushed against the shore by the wind when the ice broke up on the lake a few weeks earlier. At the far end of the berm you can see ice floes still piled on top of the sand.

The above photo was taken by the Maine Geological Survey at Songo Beach in late March 1992, just as the ice was breaking up and a week or so before the April 1 photo. Here you can see a long bank of ice floes pushed by the prevailing south winds against the upper section of Songo Beach. It was these floes and chunks of ice that created the berm of sand in the top photo on April 1. Note that this bulldozing process requires a rising lake level, so that the ice floes are pushed up the profile of the beach and in doing so, plow a ridge of sand up with them. But for this type of re-building to work, you need to start with a low winter lake level. If the lake was kept at a stable level year-round, this re-building process would never have a chance to work.

---

This photo from May 30, 2012 shows a completely different type of beach re-building. This 1.5 foot berm is from wave action alone, as the lake very slowly rose from its winter minimum during the spring, long after ice-out. When you put these two effects together (ice bulldozing in late winter-early spring and wave action from spring to late May), you can see how the lake itself can push hundreds of thousands of tons of sand back up the beaches on its own, and in doing so, replenish the middle and upper profiles of Sebago Lake's beaches.

The secret to this natural beach rebuilding is maintaining the natural fluctuation of the lake from season to season and ensuring the lake hits a bedrock minimum in the fall and winter and then slowly rises with snowmelt in the spring. At Sebago Lake the natural range in variation which allows this beach rebuilding to occur is about 6 feet of change from lowest to highest each year. Once you artificially eliminate the annual lows, these rebuilding processes do not occur. Instead what you get is the top of the beaches eroding and losing sand without any mechanism to push the sand back up. If that happens each year the tops of the beaches lose sand, the middle of the beaches lose sand, and there is no mechanism to replace the lost sand. Then you start to get concave beach profiles (scalloped downward) instead of convex beach profiles (humping upward). A concave beach profile allows waves at high lake levels to directly pound into the very top of the shore, at the roots of large trees, and then you have 150-year-old trees start to fall down, which is what has been happening at Songo Beach at Sebago Lake State Park for the past 25 years. We know this phenomenon is very recent because the trees falling down are 100 to 150 years old (you can count their rings) and were perfectly healthy until they suddenly fell down.

Here's Roger Wheeler in 1999 with a 150-year-old Red Pine (Pinus resinosa) which had just collapsed into the water at Songo Beach at Sebago Lake State Park. This giant red pine is seen at the center of the 1992 photo at the top of this post.

---

It's not politics, it's not opinion, it's physics.

----

Note: This is also why vertical concrete seawalls cause more damage than they prevent and in a few decades tend to get undermined. On a vertical seawall all of the high wave energy is focussed at the toe of the seawall and has no place to disperse except straight down, where it erodes away the sand and gravel the wall is built on. On a sloping, porous shoreline, wave energy is highly dispersed up and down the profile and is not forced to 'dig in' at one narrow spot. Since you can't change the energy of the wave, the only thing you can change is how the energy of wave is dispersed when it hits. The least destructive mode is where the wave energy is spread out over as wide an area as possible, ie. a gently sloping and porous shoreline. Natural beaches evolved because they represent the most stable energy distribution of seasonal wave action against a shoreline.

LD 72 -- A Bill to Save the St. Croix River

Native alewives coming home to the Kennebec River, Waterville, Maine.
Underwater photo by Tim Watts at Ticonic Falls, June 2003.

Native alewives are like bluebirds, robins, cardinals, chickadees and brook trout. They are the warp in the woof of life in coastal New England. They are the bright, shiny hopeful harbingers of spring. To young children, the story of their migration is as fascinating as the sheer fun of scooping them up with tiny, water-chilled hands as new leaves unfold in April. Alewives are wild local nature in the flesh, the creators of childhood memories which once impressed cannot be worn away by time.

Like all of Maine's large rivers, the St. Croix River lost its enormous runs of alewife, salmon and shad due to the building of dams without fishways in the early 1800s -- even though the laws at the time required them. 

In the 1960s, the St. Croix started to get its native fish back when the U.S. and Canadian governments paid for new fishways at the river's major dams. By the late 1980s the native alewife run on the St. Croix had grown to 3 million strong --  the largest alewife run in North America --  stunning proof of how cleaning up water pollution and making dams passable to native fish can quickly restore ecosystems once given up as gone. 

But in the late 1980s a small group of fishermen on Spednic Lake on the St. Croix decided a recent downturn in smallmouth bass fishing was wholly caused by native alewives. Although they had no evidence, except the obvious fact that there were native alewives in the lake, these anglers pressed their case to their local legislators. In 1995 these legislators pushed through a state law requiring native alewives not be allowed to use the federally funded fishways built on the St. Croix specifically for them. By 2002 the river's alewife run had fallen from 3 million fish to only 800.

In 2001 the Maine Legislature debated but refused to remove the state's 'alewife ban' on the St. Croix.  In desperation, the Canadian government began trucking the river's few remaining alewives over the Woodland dam, whose blocked fishway is on the U.S. side of the river. This Canadian action saved the St. Croix's alewife run from total extinction.  In 2008 the Maine Legislature allowed alewife passage at the Woodland dam, but this feeble measure has left 98 percent of the fishes' habitat inaccessible and kept the population stuck at a meager 20,000. 

Native alewives have been extinct from Spednic Lake for more than 20 years and the smallmouth bass fishing at Spednic Lake today is no better or worse than it was when the whole hubbub started. This is object proof that native alewives had nothing to do with the quality of smallmouth bass fishing at Spednic in the first place. 

Since the late 1980s a mountain of scientific studies have been conducted on the St. Croix and elsewhere in Maine which conclusively show native alewives have no ill effect on smallmouth bass or any other fish. But the 1995 law which started it all is still on the books and is still being enforced each spring by Maine's fisheries commissioners. In 2013, alewives still cannot reach 98 percent of their native habitat in the St. Croix. This spring, like every spring since 1995, the St. Croix's native alewives will return from the Atlantic Ocean to the Grand Falls Dam and find a locked and bolted door between themselves and the natural lakes where they have spawned since the last Ice Age.

State Rep. and Passamaquoddy Tribal Representative Madonna Soctomah and other concerned legislators have sponsored an emergency bill to finally repeal the 1995 alewife ban law on the St. Croix and bring these native fish back to their rightful place in Maine's fourth largest river system. While the past cannot be unwritten, the future has yet to be drafted. Let's hope LD 72 is enacted and becomes the first of many new and hopeful chapters for the St. Croix and its native fish.

The bill's public hearing will be held on Monday, March 25th at 9 a.m. in Room 206 of the Cross Building at the State House Complex in Augusta. While the past cannot be unwritten, the future has yet to be drafted. Let LD 72 be the first of a new and hopeful chapter on the St. Croix. The full text of the bill is below:

--------------

LD 72 -- 126th Maine Legislature

An Act To Open the St. Croix River to River Herring

Emergency preamble. Whereas, acts and resolves of the Legislature do not become effective until 90 days after adjournment unless enacted as emergencies; and

Whereas,  river herring were once abundant in the St. Croix watershed and play a vital ecological role in that watershed and the near-shore marine ecosystem; and

Whereas,  the decline in the river herring population in the St. Croix watershed affects the ecological and economic health of that watershed and the near-shore marine ecosystem; and

Whereas,  the prohibition on allowing river herring to pass upstream from the Grand Falls Dam on the St. Croix River is a significant impediment to the restoration of river herring to historic levels in the St. Croix watershed; and

Whereas,  legislation allowing unimpeded passage of river herring upstream from the Grand Falls Dam on the St. Croix River needs to take effect prior to the river herring's spring spawning run; and

Whereas,  in the judgment of the Legislature, these facts create an emergency within the meaning of the Constitution of Maine and require the following legislation as immediately necessary for the preservation of the public peace, health and safety; now, therefore,

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

Sec. 1. 12 MRSA §6134, as amended by PL 2011, c. 598, §12, is repealed and the following enacted in its place:

§ 6134. River herring passage; fishways on the St. Croix River

By May 1, 2013, the commissioner and the Commissioner of Inland Fisheries and Wildlife shall ensure that the fishways on the Woodland Dam and the Grand Falls Dam located on the St. Croix River are configured or operated in a manner that allows the unconstrained passage of river herring.

Emergency clause.  In view of the emergency cited in the preamble, this legislation takes effect when approved.

SUMMARY

This bill provides that, by May 1, 2013, the Commissioner of Marine Resources and the Commissioner of Inland Fisheries and Wildlife must ensure the fishways on the Woodland Dam and the Grand Falls Dam located on the St. Croix River are configured or operated in a manner that allows the unconstrained passage of river herring.

Sponsored By: Representative SOCTOMAH of the Passamaquoddy Tribe; Cosponsored By: Representative AYOTTE of Caswell, Representative BEAR of the Houlton Band of Maliseet Indians, Representative BEAUDOIN of Biddeford, Representative BERRY of Bowdoinham, Representative DOAK of Columbia Falls, Senator DUTREMBLE of York, Senator JACKSON of Aroostook, Representative MITCHELL of the Penobscot Nation, Representative PARRY of Arundel. 

----------

http://bangordailynews.com/2013/03/12/opinion/contributors/dont-let-this-legislation-get-away-open-the-st-croix-to-alewives/?ref=search

http://bangordailynews.com/2012/07/31/opinion/the-st-croix-river-should-be-opened-to-alewives/?ref=search

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:

---------

126th MAINE LEGISLATURE

FIRST REGULAR SESSION-2013

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.

SUMMARY

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.