Monday, March 18, 2013

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.

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