December 17, 2003
George H. Taylor, Chief Biological Resources Branch
Division of Hydropower Compliance and Administration
Federal Energy Regulatory Commission
888 First Street, NE
Washington, D.C. 20426
Re: Project No. 2984-046-Maine
Eel Weir Project - S. D. Warren Company
Dear Mr. Taylor:
Friends of Sebago Lake (FOSL) has asked me to comment on its behalf in regards
to your September 11, 2003 letter, in which you determined that S. D. Warren
had violated the Lake Level Management Plan (LLMP) by failing to achieve
Spring 2003 fill up sometime between May 1 to June 15. My clients have
flowage easements of 267.15 ft. msl on their property, and they believe
that S. D. Warren took appropriate action in accordance with the LLMP to
ensure that it did not trespass these flowage easements.
Many properties along Sebago Lake are built within 10 to 20 ft. of the full
pond water line of 266.65 ft. msl and are exposed to fetches of 5 miles
or greater. It is cost prohibitive for these property owners to obtain
insurance to protect them against property damage caused by ice floes being
blown into their buildings when the lake is near or at full pond.The ice
did not go out this year until April 24, 2003. If the ice breaks up during
a period of strong winds, it is not unusual for it to stack up 10 ft to
20 ft. landward and to heights of 8 ft. to 10 ft. With a watershed ten
times the area of the lake and a snowpack in the watershed, it is not unusual
for quick spikes of 2 ft. to 3 ft. in lake elevation to occur. Both S.
D. Warrenís flowage easements and the FERC license require it to
take appropriate action to prevent lake elevations from exceeding 267.15
ft. msl to minimize damage from both erosion and ice barging.
In 1984 the FERC renewed S. D. Warren's license for the Eel Weir Project
(No. 2984). The 1984 license did not prescribe lake levels, but the License
was amended in April, 1997 with an LLMP.
The following paragraph of this amendment emphasizes that lake levels are
not to exceed 267.15 msl:
"Finally, we want to emphasize that the provision of the settlement
plan that would permit the lake to be filled to a level six inches above
the spillway crest (267.15 feet) does not recognize levels above the spillway
crest as being within normal operating ranges. This provision was proposed
to allow the lake level to be raised to the spillway crest, recognizing
that some leeway above that level, up to the limits of Warren's flowage
easements, would be necessary to achieve full pond. While there may be
high flow or flood conditions beyond Warrenís control that result
in lake levels of up to 267.15, we would emphasize the settlement provision's
operating parameters (under the description of Stage 1 flows) that mandate
immediate increases in outflows as necessary to prevent reaching elevation
267.15, or from remaining at or above the spillway crest for more than three
weeks during any year."
It is obvious from the statement above " . . . mandate immediate increases
in outflows as necessary to prevent reaching elevation 267.15 . . . .,"
and your statement in your 9/11/03 letter that S. D. Warren has " .
. . the hydraulic capacity to discharge water if the spring is wetter than
normal. . .," that the FERC believes that S. D. Warren can avoid exceeding
its flowage easements by simply "lifting" the gates higher during
periods of above normal precipitation.
My clients do not believe that this is true because S. D. Warren exceeded
the flowage easement limit of 267.15 ft. msl for eight days between June
18 and June 25, 1998. During these eight days total precipitation was only
0.07 in., and S. D. Warren ran maximum outflows of 210,000 cfm. In the
week leading up to June 18, 1998, the lake elevation went up almost 18"
in one week during a two-year storm event, which is 3.6" of rain in
24 hours, along with the following events:
a. Lake elevation on June 10, 1998 was 265.96 ft. msl, which is 9"
below spillway crest
b. June 11 - 0.00" of precipitation
c. June 12 - 0.00" of precipitation
d. June 13 - 3.58" of precipitation
e. June 14 - 1.72" of precipitation
f. June 15 - 0.12" of precipitation
g. June 16 - 1.54" of precipitation
h. June 17 - 0.28" of precipitation
Total 7.44" of precipitation
i. Lake elevation on June 17, 1998 was 267.38 ft. msl, which is 8.76"
above spillway crest and exceeded S. D. Warren's flowage easements of 267.15
ft. msl by 0.23 ft.
The 24-hour rainfall of 3.58" on June 13, 1998 was not that unusual,
as there were six other times during just the past 13 years that 24-hour
rainfalls exceeded this amount and four other times during the past 12 years
that 7-day total rainfall exceeded the seven day total of 7.44" in
June of 1998:
24-Hour Total 7-Day Monthly
Date Precipitation Total Total
___________________________________________________________
9/16/99 4.44" 7.82" 12.41"
10/10/98 5.61" 8.88" 10.45"
6/13/98 3.58" 7.44" 9.01"
10/21/96 11.74" 14.77" 16.83"
8/19/91 7.75" 9.66" 15.22"
4/21/91 4.21" 4.57"
6.71"
11/10/90 4.74" 6.60"
7.5"
The elevation of 265.96 ft. msl on June 10, 1998 provided a reservoir of
only 0.69 ft. msl to the spillway crest elevation of 266.65 ft. msl. This
was obviously not enough reservoir in June of 1998 to keep lake elevations
from exceeding the flowage easements.
S. D. Warren did not have adequate hydraulic capacity to handle the precipitation
of June, 1998. It is obvious that this was not that unusual an event and,
the maximum elevation target needs to be lowered from 266.65 ft. msl to
265.65 ft. msl., to ensure that S. D. Warrenís flowage easements
are not trespassed. What would have happened if these events had occurred
in March or April, when there was a snow pack and/or the ground was saturated?
I have enclosed photographs, which highlight some of the erosion which
occurred in June of 1998.
FOSL has also requested in the re-licensing process that the target elevation
be lowered from 266.65 ft. msl to 265.65 ft. msl to provide adequate reservoir
capacity to hopefully keep the lake from exceeding the limit of S. D. Warren's
flowage easements during two-year or greater storm events.
I am requesting of behalf of FOSL that the FERC reverse its decision that
S. D. Warren was in violation of the LLMP this past spring and find that
S. D. Warren's action was appropriate because of the amount of snow pack
in the watershed, and its legal obligation not to trespass flowage easements.
My clients have already suffered significant damage due to erosion caused
by FERC's currently mandated lake levels, for August 1, September 1, October
1, and November 1, which are as much as 15% above the long term median (1910-86)
for these dates. If a higher elevation was maintained that caused a trespass
above the flowage easement elevation, these damages would be even greater.
An adequate tolerance, absent proven hydraulic release capacity must be
maintained to avoid this type of trespass and consequent damages in the
future.
Very Truly Yours,
Kenneth M. Cole III
Encs.
cc:
Magalie Roman Salas, Secretary of FERC
Thomas Howard, S. D. Warren
Roger Wheeler, FOSL
Dana Murch, DEP
Robert Marvinney, DOC
Thomas Skolfield, DOC
Francis Brautigam, DIF&W
T. J. LoVullo, FERC
Allen Creamer, FERC
Mr. George Taylor, FERC
Jensen Baird
Gardner&Henry
ATTORNEYS AT LAW
TEN FREE STREET
P.O. BOX 4510
PORTLAND, MAINE 04112
(207) 775-7271
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