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Last spring, the State of Maine, a billion dollar paper company and two river conservation groups used a secret and illegal proceeding to amend five federal dam licenses so that they violate the U.S. Clean Water Act and Maine water quality laws.
On July 11, 2007, the world was told about a "win-win" settlement between South African Pulp & Paper (SAPPI), the State of Maine, Friends of the Presumpscot River, American Rivers, and the U.S. Fish & Wildlife & Service they said would restore the Presumpscot River.
The reality was not as pleasant as the American Rivers and SAPPI press releases said.
What actually happened one year ago is a multi-billion dollar corporation, SAPPI Inc., said it would obey a state fishway law at its dam at Cumberland Mills in Westbrook, Maine if SAPPI was allowed to violate the U.S. Clean Water Act at its five Presumpscot River hydro-electric dams for the next 50 years.
SAPPI's dams violate the U.S. Clean Water Act by impounding and destroying most of the Presumpscot River, making it unlivable for its native Atlantic salmon, and cutting the river off from its source, Sebago Lake.
SAPPI's dams destroy, block and sever the finest Atlantic salmon habitat in the United States: the Sebago, Presumpscot and Crooked River Atlantic salmon watershed.
SAPPI's dams are the only reason the Presumpscot River above Westbrook is now virtually dead to its native fish life.
SAPPI's dams are the only reason Atlantic salmon do not swim from Casco Bay to Sebago Lake each spring, as they have done for the past 10,000 years.
Rather than stopping these violations of the law, the secret deal cut between SAPPI and the State of Maine, American Rivers and Friends of the Presumpscot River would enshrine these violations with the imprimatur of legality for the next half century.
The fake restoration deal is now dead.
SAPPI has apparently decided the cost of removing the Cumberland Mills Dam is not worth millions of dollars in federal license givebacks offered by the State of Maine, Friends of the Presumpscot River and American Rivers.
Prior to last July, SAPPI repeatedly told the world that building a fishway at its minuscule Cumberland Mills Dam would put its Westbrook paper mill out of business.
Then, last year, SAPPI abruptly announced that it was willing to spend the same amount of money to remove the entire dam as it would have spent to build a fishway on it.
Suddenly, a mill-killing expense became a mill-saving opportunity !!!
Now, a year later, not so much.
To prevent yourself from getting any more whiplash, here is what appears to be the situation:
1. Before July 2007, SAPPI said spending several million dollars to build a fishway at its Cumberland Mills Dam would put its Westbrook mill out of business.
2. After July 2007, SAPPI said removing the Cumberland Mills Dam would keep its Westbrook mill in business, even though removing the dam would cost as much or more than the cost of building the fishway it said would put its Westbrook mill out of business.
3. Today, in July 2008, SAPPI says that everything it has previously said on this topic during the past two years is balderdash and should not be believed.
We agree.
ILLEGAL PROCEEDINGS
The 12 months of "settlement" discussions between SAPPI, the State of Maine, FOPR, AR and USFWS on the bad deal described above have been conducted in violation of Maine's Freedom of Access Act.
On the same day in June 2008 that Friends of Sebago Lake learned SAPPI had quit the settlement talks, FOSL was finalizing a lawsuit against the State of Maine for numerous violations of Maine's Freedom of Access Act caused by those settlement talks. Here is the complaint to Superior Court -- which has not been filed.
The collapse of the illegal Presumpscot settlement talks has made this lawsuit moot because the outcome FOSL sought is for the settlement talks to stop and the Maine lFW fishway proceeding at SAPPI's Cumberland Mills Dam to begin. This has now happened.
Our lawsuit asserts that the State of Maine cannot meet in secret with a federal dam licensee to hammer out a mutually agreed set of license amendments which are then presented to the Federal Energy Regulatory Commission (FERC) for approval. Maine's Public Participation in the Licensing and Relicensing of Hydroelectric Dams Law (38 MRSA §640) states that state agency consultations with federal dam licensees are public proceedings that must be conducted in public.
Maine's Freedom of Access Act (FOAA) establishes the principle that the workings of government are open to review and participation by the public except where specifically excluded by law. FOAA states that it shall be construed liberally, meaning that if there is any doubt, the court shall decide on the side of openness and against secrecy.
Taken together, the FOAA and 38 MRSA §640 make clear that it is unlawful for state agencies to meet in secret with a dam owner to negotiate the final terms and conditions of a federal license or to rewrite a recently issued license. Yet, this is what the State of Maine has done with SAPPI, FOPR, AR and USFWS since March 2007.
The State of Maine further sunk itself into illegality by allowing the Commissioner of the Maine Department of Marine Resources to sign a contract last June which binds the agency to fully supporting all of the license changes agreed to in secret negotiation "without material deletion, addition or modification." This contract renders meaningless the public's comment rights guaranteed in 38 MRSA §640. How can an agency accept public comments on a negotiated settlement when the settlement itself prohibits the agency from making any changes in response to the public's comments?
HOW IT STARTED
On October 19, 2006, Friends of the Presumpscot River and American Rivers wrote a letter asking the Commissioner of the Maine Dept. of Inland Fisheries & Wildlife (IFW) to order SAPPI to provide fish passage at its non-hydro Cumberland Mills Dam in downtown Westbrook. Accompanying this request was about 3 inches of supporting evidence, much of which was researched and gathered by FOSL. Various state agencies wrote letters of vigorous support for FOPR and AR's request.
On January 10, 2007, the IFW Commissioner stated by letter that his Department would conduct a public hearing under Maine's fishway law to consider ordering SAPPI to provide fish passage at the Cumberland Mills Dam.
In February 2007, IFW placed legal ads in the Portland Press-Herald announcing that a public adjudicatory hearing would be held and set a 30-day period for interested parties to formally intervene. Timely intervention letters were submitted by a number of organizations and state agencies.
At the same time that groups were filing their intervention letters -- in early March 2007 -- SAPPI and state agencies began secret negotiations. This has been revealed in public documents recently obtained by FOSL from the Dept. of Marine Resources under Maine's Freedom of Access Act.
These documents show that on March 13, 2007 SAPPI presented the State of Maine, FOPR and AR with three proposals (page 1, 2, 3) it purported would eliminate the need for the pending IFW fishway proceeding. One month later, on April 20, 2007, the State of Maine, FOPR, AR and the USFWS presented a counter-proposal to SAPPI (page 1, 2).
From April 20 to June 13, 2007, SAPPI and the State of Maine, FOPR, AR and the U.S. Fish & Wildlife Service met in secret on numerous occasions to re-write large chunks of the federal dam licenses issued to SAPPI in 2003 for its five Presumpscot River hydroelectric dams. The license re-writes were highly favorable to SAPPI and were done to entice them into obeying state law and providing fish passage at their non-hydro Cumberland Mills Dam.
The public was not notified nor invited to these secret discussions. All of the parties signed a confidentiality agreement which forbade them from telling the public that these meetings were even occurring.
These federal dam licenses were the product of five years of proceedings before FERC and the Maine Board of Environmental Protection that involved extensive public participation, notice and comment and three more years of litigation extending to the Maine Supreme Court and the United States Supreme Court. These five Presumpscot River dam licenses were among the most publicly vetted in Maine history. Despite this fact, "the parties" decided on their own, in secret, to undo this five year public proceeding and bind themselves in blood, as it were, to oppose any "material deletion, addition or modification" of their revisions no matter what the public might say.
The Settlement Framework Agreement was introduced to the public at a press event on July 11, 2007. The distributed press materials concealed a very simple fact: the "deal" would violate the U.S. Clean Water Act. By eliminating all requirements for fish passage at the Dundee Falls Dam, the "deal" required the State of Maine and FOPR and AR to abandon every single legal principle that they had just successfully argued before the Maine Supreme Court and the U.S. Supreme Court:
"Nowhere, as appellant suggests, does the statute state that 'some' of the waters be suitable for the designated uses; that 'some' of the aquatic species indigenous to the waters be supported; or that 'some' of the habitat must be unimpaired or natural. On the contrary the terms 'receiving waters' and 'habitat' are unqualified and the statute specifically states that the water quality must be such to support 'all' indigenous aquatic species."
[Maine BEP, Order Denying Appeal of SAPPI, Inc. for Water Quality Certification of the Dundee, Gambo, Mallison, Little Falls and Saccarappa Hydroelectric Projects, Sept. 30, 2003.]
After arguing to the Maine Board of Environmental Protection, Maine Superior Court, Maine Supreme Court and the U.S. Supreme Court in 2003, 2004, 2005, and 2006 that the U.S. Clean Water Act requires fish passage at the Dundee Falls Dam, in 2007 the State of Maine, American Rivers and Friends of the Presumpscot River promptly forgot all about it. Why would American Rivers, the nation's most prestigious river protection organization, insist the U.S. Clean Water Act exists only at their convenience? Because they assumed that nobody on Sebago Lake and the Presumpscot River would care.
They were wrong.
FAKE PUBLIC HEARINGS
It's one thing to refuse to hold a public hearing on a secret agreement. It's quite another to hold a public hearing -- and not tell the public. The latter happened on the Presumpscot this spring.
After being embarrassed by FOSL on Thanksgiving 2007, the State of Maine was told by the Maine Attorney General that 38 MRSA §640 required it to hold a public hearing on its Presumpscot River Settlement Agreement. This public hearing was held in late February.
The only problem is that the State of Maine never told the public about this public hearing. It was never publicized anywhere (except by us). No press release was sent out. No reporters were contacted. Not a single legal notice was placed in a newspaper. We informed the State of this on March 7, 2008:
"Signatories American Rivers and Friends of the Presumpscot River do not mention the existence of this meeting on their respective websites. Nowhere does the Maine DMR website announce or even mention the existence of the February 28, 2008 "Public Scoping Meeting." As far as we can discern, neither the State of Maine or any of the signatories did anything to mention the existence of the Feb. 28, 2008 public scoping anywhere -- not even on their own websites. How can the State of Maine hold a Public Scoping Meeting on the PRSF and not inform the general public of the meeting's existence?"
At a meeting in the Maine DMR Commissioner's office in January 2008, FOSL members were told by Jan McClintock, Assistant Attorney General of Maine, that the February 28, 2008 "public hearing" was legally required by Maine's Public Participation in the Licensing and Relicensing of Hydroelectric Dams Law (38 MRSA §640 ¶1). This law makes very specific requirements on how a public hearing or meeting must be publicized:
"At the commencement of the consultation, review and comment process, the state agencies involved shall publish notification of this fact, informing the public of the issues anticipated to be involved in the licensing or relicensing process, the timetable for processing of the license and the opportunities the public has to comment on and participate in the process. The notice shall be designed to reach readership both statewide and in the vicinity of the hydropower project, including all persons that have contacted the agencies with an interest in this matter and all potentially interested persons."
38 MRSA §640 ¶1 does not allow the State to not inform the public of a public meeting. The Maine Freedom of Access Act explicitly prohibits it:
It is further the intent of the Legislature that clandestine meetings, conferences or meetings held on private property without proper notice and ample opportunity for attendance by the public not be used to defeat the purposes of this subchapter. 1 MRSA §401.
But that's what they did.
WHY DOES MAINE WANT TO SELL THE PRESUMPSCOT DOWN THE RIVER ?
Read our letter to the Maine DEP and Marine Resources Commissioners ...
EROSION AT WARDS COVE
Photos ...
EROSION AT SEBAGO BOATING BEACH
Photos ...
MORE THAN A DECADE OF DESTRUCTION AT SONGO BEACH
EXAMINE THE PHOTOS
MAINE DEP HAS BROKEN THE LAW
AT SEBAGO LAKE FOR 16 YEARS
Public documents submitted to the Maine Department of Environmental Protection by Friends of Sebago Lake on 8 October 2006 show the DEP for 16 years has failed to protect the natural sand beaches and shoreline of Sebago Lake. Such protection is required under Maine’s Anti-Degradation Statute, a section of Maine law required under the federal Clean Water Act. 38 MRSA §464 (4)(F) et seq.
These documents show that for 16 years, Maine DEP has ignored the counsel of its own technical experts and its fellow state agencies and allowed artificially high water levels to destroy much of Sebago Lake’s natural beaches. The most severely damaged beach is Songo Beach at Maine's own Sebago Lake State Park. The natural sand beaches of Sebago Lake were once among the most outstanding natural lake beach systems in Maine and in the Northeast United States.
The artificially high water levels authorized by Maine DEP at Sebago Lake since 1991 have caused massive erosion and landslides along the lake’s wooded shoreline. This damage has forced shorefront residents to spend tens of thousands of dollars to re-stabilize their shorelines to keep their houses from falling into the lake. This destruction is continuing unabated today.
THE BACKGROUND
In 1987 the S.D. Warren Company, which owns a hydro electric dam at the outlet of Sebago Lake, began keeping Sebago Lake 1-3 feet higher than normal during the summer and fall to generate more hydro power in the winter. These much higher water levels immediately caused severe erosion to Sebago Lake’s shoreline, including the entire collapse of the shoreline at the Portland Water District pumping station on Route 35 in Standish. The U.S. Army Corps of Engineers spent more than $500,000 keeping Route 35 from falling into Sebago Lake by armoring the collapsed wooded shoreline with large stone rip-rap.
In 1990, the Maine DEP brokered an agreement with S.D. Warren and shorefront homeowners to revert the lake to its pre-1987 condition based upon the scientific reports of its own technical staff. In 1991, the Maine DEP changed its mind and ignored the advice of its own technical staff. For the past 16 years, Maine DEP has allowed and advocated for the S.D. Warren Company to violate Maine water quality statutes by keeping Sebago Lake artificially high and thereby causing severe erosion to its shoreline and sand beaches.
HOW THE DAMAGE IS DONE:
Artificially higher water levels on a natural lake cause erosion as the water surface attempts to create a new equilibrium with its shoreline. This causes shoreline erosion, landslides, toppling of large trees and the destruction of formerly stable natural beaches. This erosional process can continue for decades or centuries depending on how high the lake is artificially raised and the susceptibility of the natural shoreline to erosion. All of these processes have been well documented at Sebago Lake by the State of Maine and the Maine Bureau of Parks and Recreation during the past 18 years.
This damage would not be allowed to happen at Baxter State Park. It would not be allowed to happen at Acadia National Park. But for 16 years Maine DEP has authorized this damage at Sebago Lake and Maine's own Sebago Lake State Park.
THE EVIDENCE
Public records and State of Maine documents obtained under the Maine Right to Know Law submitted by Friends of Sebago Lake to the Maine DEP on Oct. 8, 2006:
THE LAWS
Maine’s Anti-Degradation Statute states simply that Maine lakes and rivers cannot get dirtier or more degraded once they attain a specific level of health. The federal Clean Water Act requires Maine to have this Anti-Degradation statute in its lawbook. Text of the applicable laws are here.
Since 1987, Sebago Lake has become severely degraded. The Director of the Maine Bureau of Parks stated this. Maine DEP's technical staff predicted this. Maine geologists noted this. In 1992 the Maine DEP admitted this. But for 16 years nothing has been done.
Songo Beach at Sebago Lake State Park, which looked like this and this during the 1960s, now looks like this.
For the past 16 years, Maine DEP has approved this destruction.
The destruction of Sebago Lake’s beaches and shoreline due to these artificially high water levels violates Maine’s Anti-Degradation Statute which declares that all existing uses of a waterbody which occurred on or after Nov. 28, 1975 must be protected and maintained. The Maine DEP has failed for 16 years to enforce this law at Sebago Lake and Maine's own Sebago Lake State Park.
WHAT THE LAW REQUIRES MAINE DEP TO DO NOW
Under Maine law, the federal Clean Water Act and the federal Power Act, the Maine DEP must now issue a certification to the S.D. Warren Company (SAPPI) stating that its operation of the Eel Weir Dam at the outlet of Sebago Lake does not cause violations of Maine water quality laws and the federal Clean Water Act. This certification must be approved or denied by the Maine DEP by February 2007.
The Maine DEP reports and memos Friends of Sebago Lake submitted to the Maine DEP on 8 October 2006 show the agency has failed to heed the advice of its own technical staff for the past 16 years and has broken Maine law and destroyed the natural beaches of Sebago Lake as a result.
Maine DEP must enforce the law in their certification process for S.D. Warren’s Eel Weir dam. They must order the artificially high levels of Sebago Lake to stop. They must revert the lake to its condition prior to 1987, the year S.D. Warren unlawfully altered the lake’s historic levels and the Maine DEP let them.
BONUS: OLD GROWTH FOREST DESTROYED AT SEBAGO LAKE STATE PARK
ABOUT FRIENDS OF SEBAGO LAKE
Friends of Sebago Lake is a volunteer membership organization which began in the early 1990s to protect Sebago Lake.
Most of its members live along the Sebago Lake and have for most or all of their lives.
Their memories and family photographs, such as the one above of Carol Steiman when she was a little girl at Songo Beach in the 1940s, are all that is left of what Sebago Lake used to be until 1987.
Friends of Sebago Lake conducts independent scientific and historic research and advocates for the natural character and health of Sebago Lake.
Sebago Lake is Maine’s second largest lake, its deepest lake, and one of the natural wonders of the United States of America.
It deserves to be protected for future little girls with a toy sailboat.
ABOUT THE AUTHORS OF THIS REPORT
