Presumpscot River -- Undammed -- 2002
FOSL fights paper company threats
to Maine's water laws
A legal effort by South African Pulp and Paper Industries (SAPPI)
seeks to prevent the State of Maine from requiring fishways, minimum flows
and other environmental protections at any hydro-electric dam in the state.
The company, based in Johannesburg, South Africa, owns paper mills along
the Presumpscot River in Westbrook, Maine and the Kennebec River in Skowhegan,
Maine.
On May 29, 2003 SAPPI appealed the Maine Department of Environmental Protection's
water quality certification for the company's six hydro-electric dams on
the Presumpscot River. State water quality certificates are required as
part of the ongoing federal re-licensing of SAPPI's Presumpscot River dams.
Water quality certificates have long been issued by the Maine Department
of Environmental Protection (DEP) to ensure hydro-electric dams do not cause
violations of Maine's water quality standards. Conditions placed on Maine
hydro-dam licenses by the Maine DEP routinely include requirements for minimum
flows and up and downstream passage for native migratory fish species.
SAPPI's appeal to the Maine Board of Environmental Protection declares the
State of Maine has no legal authority under the federal Clean Water Act
to place any conditions on the operation of its dams, including requirements
for fishways. The highly technical legal argument in SAPPI's appeal suggests
the company intends to take its case to the Maine Supreme Judicial Court
if necessary.
SAPPI's appeal claims its dams do not discharge any pollutants into the
Presumpscot River, which it says is the triggering element for review by
the State under the Clean Water Act. As a result, the company argues, the
State of Maine has no legal authority to mandate any environmental improvements
at its hydro-electric dams. The company's appeal does not acknowledge its
dams discharge fish parts into the Presumpscot River when adult American
eels migrating downriver to the ocean are dismembered by the dams' turbine
blades.
American eel killed at Maine hydro-dam turbine, Fall 2001.
If successful, SAPPI's appeal has enormous negative consequences for Maine
rivers since it challenges the legal authority of the State of Maine to
place any conditions on hydro-electric dams to enforce Maine's water quality
standards.
Hydro-electric dams on navigable rivers in the State of Maine are regulated
by the Federal Energy Regulatory Commission (FERC), which issues operating
licenses for the dams with terms of 20 to 50 years. During the federal dam
re-licensing process, the State of Maine and its citizens are limited to
making recommendations to FERC, with the federal agency having the final
say.
In contrast, conditions included in water quality certificates issued by
the State of Maine under the Clean Water Act are mandatory and must be included
by FERC in the operating licenses for Maine hydro-electric dams. The water
quality certification process is the only certain method by which the State
of Maine can ensure a hydro-electric dam does not violate the state's water
quality laws.
SAPPI's combative stance in its appeal is consistent with its behavior throughout
the seven year relicensing proceeding for its Presumpscot River dams. These
dams, constructed long before modern environmental review, impound nearly
all of the Presumpscot above Westbrook, Maine and destroy more than 15 miles
of high quality Atlantic salmon and brook trout habitat. The very short
bypass reaches below each dam provide virtually the only free-flowing habitat
left in the river above Westbrook. None of SAPPI's dams have upstream or
downstream fish passage.
Until the closure of the company's paper pulping operation in Westbrook
in 1999, SAPPI's wastewater discharge caused severe pollution in the lower
seven miles of the Presumpscot River, with dissolved oxygen levels as low
as zero. Prior to 1999 the combination of severe water pollution and multiple
dams and impoundments caused citizens and fisheries agencies to give up
hope of ever restoring the Presumpscot River to health.
In 1999, the closure of SAPPI's pulp and the pending removal of the dilapidated
Smelt Hill Dam at the Presumpscot's head of tide caused citizens and agencies
to reconsider the future of the Presumpscot River. That year, the Presumpscot
was named one of the nation's most endangered rivers by the national river
protection group American Rivers.
That year, with re-licensing of the SAPPI dams just beginning, American
Rivers, Friends of the Presumpscot, Friends of Sebago Lake, the Maine Council
of the Atlantic Salmon Federation and the Sebago Chapter of Trout Unlimited
began a four year campaign to seek removal of three of SAPPI dams to allow
for restoration of the Presumpscot's native Atlantic salmon, American shad,
river herring and other fish species.
Despite the group's efforts, the Federal Energy Regulatory Commission declined
to order removal of the Saccarappa Falls, Mallison Falls and Little Falls
dams, but recommended that fish passage be constructed at all of SAPPI's
dams to allow for at least some restoration of the river's native fish.
SAPPI aggressively opposed the construction of any fish passage at its dams,
claiming that sea-run fish never historically migrated up the Presumpscot
River.
In April 2003 the Maine DEP declared there was substantial evidence the
Presumpscot River was historically inhabited by numerous native migratory
fish species and required staged construction of fish ways at each SAPPI
dam and nightly shutdowns of the dams' turbines during the fall to prevent
the death of American eels migrating to the ocean.
Maine DEP stated that Maine's water quality standards require riverine habitat
to be of sufficient quality to support indigenous fish species, including
migratory fish such as Atlantic salmon, American shad and alewives. If indigenous
Atlantic salmon and shad cannot migrate up river and restore themselve because
of SAPPI's dams, the agency ruled the habitat above the dams cannot be considered
capable of supporting these fish species.
While conceding its dams completely prevent Atlantic salmon and American
shad from migrating upriver, SAPPI argues state water quality laws, "do
not require that indigenous fish actually be present, but only that the
water be of sufficient quality that it could support indigenous species
if they were present."
In recent years, the State of Maine has forcefully argued the contrary:
that water quality standards are meaningless for Atlantic salmon and other
migratory fish if a hydro-electric dam prevents these fish species from
ever using the river above the dam.
SAPPI's appeal claims that state fisheries goals and plans for the Presumpscot
River relied upon by the Maine DEP are void because the plans have not been
subject to public hearings. SAPPI states the Maine DEP should only be allowed
to rely the last formally adopted fisheries plan for the Presumpscot River.
Not surprisingly, this plan was adopted many years ago when the river was
severely polluted by industrial and municipal waste, including SAPPI's,
and was nearly devoid of any fish life.
The company also states that any requirement by the State of Maine to construct
fishways at its dams is a violation of state water quality standards. SAPPI
claims that the cost of fishways at its dams would make the dams not worth
operating. Since Maine law states that hydro-electric power generation is
one of several "designated uses" of Maine rivers, the company
claims a state mandate for fishways on the Presumpscot River would violate
state water quality laws by preventing the designated use of the river for
hydro-electric generation. The company dismisses as irrelevant the legally
designated use of the Presumpscot River as habitat for its indigenous Atlantic
salmon, American shad and other migratory fish.