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.

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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.

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

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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:

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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. 

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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:

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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.

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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.

Saccarappa Dam to Be Removed?

Dam at Lower Saccarappa Falls, Presumpscot River, Westbrook, Maine, c. 1900.
 Note the woven piles of sticks and brush in the foreground. It looks like a fish weir.

In the first week of March 2013 the SAPPI corporation in Westbrook announced with the City of Westbrook a plan to 'explore' removing the Saccarappa Dam in downtown Westbrook on the Presumpscot River. Under their federal license SAPPI must have fishways built and in operation at the dam by 2015. Apparently SAPPI is having second thoughts about making this multi-million dollar investment at a dam which generates very little hydroelectric power. 

But it's important to remember how things got to where they are now, how they almost didn't and the crucial role played by Friends of Sebago Lake. In July 2007, the State and SAPPI and Friends of the Presumpscot River announced a secretly negotiated settlement agreement where SAPPI would remove the Cumberland Mills dam underneath the S.D. Warren mill by 2011 instead of building fishways on it. This agreement was called the Presumpscot River Settlement Framework, or PRSF for short. 

In exchange for removing Cumberland Mills dam, the PRSF would have allowed most of the fishway requirements at SAPPI's four upstream dams to be delayed for decades, and at the Dundee Dam, to be erased. No fishway would be required at Saccarappa until 2016. No fishway would be required at Mallison Falls until 2026 at the earlest, at Little Falls until 2031 and at Gambo until 2036. Because of FOSL's publicity and legal actions, the PSRF ran out of steam in 2008. In 2009 the State issued an order under the state's fishway law which required SAPPI to build fishways at the Cumberland Mills Dam by 2012. The fishways were completed this past summer, on schedule. This spring will mark the first time in 130 years that children in downtown Westbrook will be able to see sea-run fish swim up the Presumpscot River to downtown Westbrook and to Saccarappa Falls. 

This spring will be a historic and momentous occasion in Westbrook and this opportunity was very nearly lost in 2008 except for FOSL's aggressive public and legal defense. Small groups of people, when well informed and active, can make a difference. But what happens next is very unclear. 

SAPPI's federal dam license requires them to build fish passage at Saccarappa within two years of fish passage being available at Cumberland Mills dam, which was completed this past summer. This means SAPPI must have Saccarappa passable to fish by May 1, 2015. This is why SAPPI and the City of Westbrook announced on March 6 they wish to study removing the dam rather than keeping it and installing fishways. To begin this process, according to newspaper reports, the City is applying for a $733,000 federal grant to study removing the Saccarappa Dam. This seems like an awful lot of money to study removing the dam and it is quite sketchy whether Westbrook will even be awarded the grant. 

Already, attorney Sean Mahoney of the Conservation Law Foundation, who was a key river advocate in the state fishway proceeding at Cumberland Mills, has expressed concern that without more details, the City of Westbrook's proposal to study removing the Saccarappa dam could be used as a backdoor to delay building fish passage at Saccarappa for years. "My real concern is that this announcement ... looks to be preparing the ground for additional delay," Mahoney said to the Portland Press-Herald on the day of the City and SAPPI's announcement. 

Obviously, removal of the Saccarappa Dam would be the best option for the Presumpscot River's sea-run fish and expanded public use of the Presumpscot River. No fishway, no matter how well intended or well designed is close to 100 percent effective. The quirky, 200-year-old shape of the Saccarappa Dam makes successful mechanical fish passage distinctly challenging. Most likely two separate fishways would be needed, one in the dam's power canal and the other at the falls themselves. 

FERC records show that SAPPI has yet to submit any design plans for fishways at Saccarappa. By the dam's federal license requirements, fishway needs to completed by next summer (2014) in order to meet the legal deadline of actually passing fish at the dam by May 1, 2015. So from a pure pouring-of-concrete perspective, the window of opportunity for meeting this 2015 legal deadline is closing fast. So far, SAPPI has yet to produce any substantive design plans for fishways or removing the dam. The design plans for either option, in fairly complete form, need to be submitted this spring if SAPPI has any realistic hope of complying with the legal requirement for having Saccarappa passable to fish by May 1, 2015. This is the exact concern raised by Sean Mahoney of CLF in the Portland Press-Herald: that this 'trial balloon' about dam removal should not be allowed to devolve into a backdoor way for SAPPI to avoid complying with the letter of their state and federal license requirements for many years after the legal deadlines have passed.

So while the concept of removing Saccarappa looks great on paper, right now there is precious little actual paper to judge it. All that exists is a brief public announcement on March 6 by SAPPI and the City of Westbrook as reported in the local newspapers. For legal deadlines to have meaning, they must be taken seriously. The only knowns in this equation is that SAPPI's federal and state licenses require the dam to be passable to fish by May 1, 2015,  the dam is not currently passable and SAPPI has no plan on the table to make it passable by May 1, 2015.

This is why the City of Westbrook and SAPPI's stated interest in seeking a $733,000 federal grant to study the concept of dam removal is a bit disconcerting at this late date. Not that a study is a bad idea -- it's more a matter of the time necessary to do a study (also the $733,000 must be a typo -- that amount is well in the range of the cost of removing the dam). The addition of a lengthy study would seem to make it very hard for SAPPI to meet their legal deadline for making the Saccarappa Dam passable to fish by May 1, 2015. So this March 6th announcement kind of sort of sounds like a tacit admission that SAPPI is going to miss their May 1, 2015 legal deadline by a wide margin.

So as you can see, the SAPPI/City of Westbrook announcement of March 6th, 2013 raises more questions than it answers. 

When kids used to go down to the Kennebec River to get Atlantic salmon for breakfast.

Citation: Boardman, Samuel L.: in Ninth Annual Report of the Secretary of the Maine Board of Agriculture. 1864. Augusta, Maine. Stevens & Sayward, Printers to the State. Subsequently published in the Maine Farmer, March 23, 1865.

At page 109:

"An aged woman, who formerly lived on the banks of the Kennebec in Vassalboro, and who, at that time, had a large family of children to support, once told me that, in spring and early summer, the fish from the river were a very essential aid to them -- that many times she has sent one of her boys down to the river early in the morning to catch a salmon for breakfast, with as much certainty that he would bring one home in season, as if she had sent him with the money to a city fish market, where she knew they were kept for sale."

How Maine's Sea-Run Fish were Overfished to Oblivion

A few early to mid 1800s historic references I just came across illustrate how early and quickly the sea-run fish of Maine rivers were wiped out by over-fishing:

Citation: William Durkee Williamson. 1832. The History of the State of Maine. Vol. 1. Glazer, Masters & Co. Hallowell, Maine.

At p. 158, describing striped bass:

"The Bass is a large scale fish, variable in its size from 10 to 60 pounds. They are striped with black, have bright scales and horned backs, and are caught about the coasts. They ascend into the fresh water to cast their spawn, in May or June, being lean afterwards and fat in the autumn. In June 1807, there were taken at the mouth of the Kenduskeag, 7,000 of these fishes, which were of a large size -- a shoal, either pursued up the river by sharks, or ascended in prospect of their prey, or to cast their spawn."

Smelt at p. 160:

"They are caught in abundance, after March, in our rivers; 20 barrels of them have been taken at the mouth of the Kenduskeag at a sweep, and sometimes they are worth no more than half a dollar a bushel."

At footnote 3, same page: "On the 2d of May, 1794, at the mouth of the Kenduskeag (on the Penobscot) were taken at one draft 1,000 shad and 30 barrels of alewives."

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Citation: Boardman, Samuel L. 'Aquaeculture': in Ninth Annual Report of the Secretary of the Maine Board of Agriculture. 1864. Augusta, Maine. Stevens & Sayward, Printers to the State. Also pub. in Maine Farmer, March 23, 1865.

At p. 117:

"Three years ago, in the month of May, in company with a friend, while passing by the lower lock of the Cumberland and Oxford Canal, in the city of Portland, our attention was drawn to the a crowd of men standing by the side of the lock, several of whom had long-handled nets, with which they were fishing, or rather dipping out fish from the water. On coming up, we saw that they were catching alewives in great numbers. It appeared that these fish, in their peregrinations along the coast, had been attracted by the fresh water of the canal, and instinctively entered it in order, as they supposed, to follow up to its source, (Sebago Lake,) but were brought to a standstill by the upper gate of the lock. The men engaged there then shut the lower gate, and commenced catching them. As soon as those of them that were confined in the lock were all caught, the men opened the lower gate again, and admitted a lot more of them, and thus a wholesale destruction of them went on. I supposed that some of them might possibly work their way up, when the several locks should be opened for the passage of boats, and thus Sebago made a breeding place for them, but on inquiry, am told that there are few or none seen there. Now it would be a very easy matter to stock that lake with young herrings (alewives) by proprietors of the canal forbidding any of them to be caught on certain days, and placing men along the route to let them go through the gates into the lake. Indeed, it seems that by renting the privilege of fishing for them on certain days, some considerable revenue might accrue to the company, while the production of the fish would again become a benefit to the section of country through with the canal passes. The same system might be adopted on many streams by having fish-ways or fish-locks, to aid their ascent, with much benefit to the country and no detriment to the mill interests."

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Citation: Twelfth Annual Report of the Maine Board of Agriculture, 1867. Stevens & Sayward, Printers to the State.

At page 90: "In Monmouth they [smelt] run into some very small rills that lead into Cochnewagon Pond, and are dipped out in considerable quantities. In May, 1867, after it was supposed they were all gone, a fresh run occurred, that yielded thirty barrels."

How Maine's Sea-Run Fish were Dammed into Oblivion: 1864.

Citation: Boardman, Samuel L. 'Aquaeculture': in Ninth Annual Report of the Secretary of the Maine Board of Agriculture. 1864. Augusta, Maine. Stevens & Sayward, Printers to the State. Also pub. in Maine Farmer, March 23, 1865.

At p. 109-110:

"Everyone now knows that salmon, shad and alewives, and indeed all the other kinds of migratory fishes -- those that spend winters in the salt water, and come up out of the sea at certain periods, as if sent by a kind Providence, to spend the spring and summer in fresh water -- are now very scarce indeed, and in some streams totally extinct. Everyone knows, too, that many of the species of fishes which remain permanently in our fresh waters, have very much decreased in numbers, as well as in size and fatness. People say that this is a necessary consequence of the building of dams and mills, and filling the streams with obstructions of various kinds for the industrial pursuits of a civilized community. No doubt it is a consequence of these obstructions, but it not need be a necessary consequence. I hold that dams and mills might be constructed, and continued, and yet by a little concession on the part of dam and mill proprietors, and a more general diffusion of the knowledge of the natural history fishes, more intimate acquaintance with their peculiar habits, instincts, and wants of life, the mills might remain and the fish continue to perform their annual pilgrimage to and from their breeding haunts, if not in so great numbers as in former times, yet in such numbers as to afford a vast amount of provisions and even luxury to the communities which are now wholly deprived of them.

"I am also aware that this subject has been discussed over and over again -- that for years and years past, every session of our Legislature was thronged, and committees were worried and teased by mill owners on the one hand and fishermen on the other -- one demanding the privilege of building dams and mills without let or hindrance as to the fish, and the other pleading for some reserve, some fish-way, or some accommodation to the annual flow of the fish, which had been of such signal service to the support of the people on the banks and vicinity of the waters in question. I am also aware that our Legislators, actuated by a sincere desire to do justice to all parties, and to give equal rights to all, have, in most instance, made provisions in the several charters and private acts pertaining to mill owners, for the passage of fish at certain times and seasons, with a hope that, while it encouraged the establishment of mills and machinery, there would be also at the required times a safe and successful transit for the various species of fishes that required such passes as one of the indispensable requirements for the continuation of their existence. And we are all aware also that, either from ignorance of what habits of the fish demand, these ways have not always been properly constructed, or from selfishness in mill owners in not keeping them open at suitable times, these provisions in most cases failed, and the destruction of the fish is the inevitable result."