STATE OF MAINE DEPARTMENT OF ENVIRONMENTAL ......Maine Waterway Development and Conservation Act, 38 M.R.S. 630–637, the Administrative Regulations For Hydropower Projects , 06-096

STATE OF MAINE

DEPARTMENT OF ENVIRONMENTAL PROTECTION 17 STATE HOUSE STATION AUGUSTA, MAINE 04333-0017

DEPARTMENT ORDER

IN THE MATTER OF

SAPPI NORTH AMERICA, INC. )MAINE WATERWAY DEVELOPMENT AND WINDHAM AND WESTBROOK ) CONSERVATION ACT AND Cumberland County ) WATER QUALITY CERTIFICATION PRESUMPSCOT RIVER HYDRO PROJECTS ) AND WATER QUALITY #L-19713-33-N-M (DUNDEE) ) CERTIFICATION AMENDMENTS #L-19714-33-G-M (GAMBO) ) #L-19715-33-G-M (LITTLE FALLS) ) #L-19716-33-G-M (MALLISON FALLS) ) #L-19717-3D-M-N (SACCARAPPA) ) FINDING OF FACTS AND ORDER #L-19717-33-N-M (SACCARAPPA) (Approval) ) NEW PERMIT AND CERTIFICATIONS Pursuant to the provisions of the Water Classification Program, 38 M.R.S. §§ 464–470, the Maine Waterway Development and Conservation Act, 38 M.R.S. §§ 630–637, the Administrative Regulations For Hydropower Projects, 06-096 C.M.R. 450 (Rule Chapter 450), and Section 401 of the Federal Water Pollution Control Act (Clean Water Act), the Department of Environmental Protection (Department) has considered the application of SAPPI NORTH AMERICA, INC. with its supportive data, agency review, public review, and other related materials in the administrative record, and FINDS THE FOLLOWING FACTS: 1. SUMMARY OF APPLICATIONS

Sappi North America, Inc. (Sappi or applicant) owns five successive hydroelectric projects on the Presumpscot River known as the Presumpscot River Hydro Projects: the Saccarappa Hydroelectric Project (SHP), the Mallison Falls Hydroelectric Project (Mallison Falls Project), the Little Falls Hydroelectric Project (Little Falls Project), the Gambo Hydroelectric Project (Gambo Project), and the Dundee Hydroelectric Project (Dundee Project). Sappi has submitted to the Department multiple applications corresponding to these five Presumpscot River Hydro Projects, which were each previously the subject of water quality certifications (WQCs) issued by the Department on a combined basis on April 30, 2003 (“2003 Combined WQC”) pursuant to Section 401 of the CWA. Sappi initially submitted the applications under the name S.D. Warren Company. On August 30, 2018, the Department received notification that S.D. Warren Company (d/b/a Sappi Fine Paper North America) had changed its name to Sappi North America, Inc. The applicant confirmed the name change in its comments on the Draft Order. There is no other change in the legal entity that owns the properties, facilities, or structures that are the subject of Sappi’s applications or this Order. Sappi’s multiple pending applications were, similar to the 2003 Combined WQC submitted to the Department for processing on a combined basis and are summarized as follows: SHP. The SHP is located on the Presumpscot River in the Town of Westbrook, Cumberland County, Maine. Sappi proposes to surrender its Federal Energy Regulatory Commission (FERC) license to operate the facility and to decommission the existing SHP, to remove the eastern and western spillways of the existing SHP dam, and to install

#L-19713-33-N-M, #L-19714-33-G-M 2 of 65 #L-19715-33-G-M, #L-19716-33-G-M #L-19717-3D-M-N, #L-19717-33-N-M

a double Denil fishway and modify the eastern and western channels to facilitate anadromous fish migration. The purpose of the SHP project decommissioning and spillway removal is to restore native sea-run fish, including Atlantic salmon, river herring (a collective term for alewife and blueback herring), and shad to the Presumpscot River watershed through improved access to habitat. In its application for the SHP, Sappi seeks a Maine Waterway Development and Conservation Act (MWDCA) permit authorizing the construction work associated with the decommissioning of that project, which under Maine state law (MWDCA, 38 M.R.S. § 635-B) also requires a water quality certificate for the proposed construction work. As a matter of federal regulation, the existing 2003 WQC for the SHP will likely no longer be in force as part of a federal FERC license once all aspects of SHP’s decommissioning, including corresponding conditions and obligations, are fulfilled at the state and federal levels and a final FERC surrender Order is issued. Sappi also seeks an additional two-year extension of the deadline for operational upstream fish passage at the SHP to May 1, 2021, to allow for the construction activities proposed in its MWDCA application. Sappi’s applications for a MWDCA permit and for WQC amendments for the Saccarappa dam and the four upstream Presumpscot River Hydro Projects are addressed in subsequent Sections of this Order. Mallison Falls Project. The applicant proposes to align the WQC for this project with the Settlement Agreement1 and provide an additional option to its present requirement to install fish passage facilities at Mallison Falls within two years of achieving trigger numbers at the SHP fish counting facility; the proposed new option consists of surrendering its FERC license and removing all dam spillways at Mallison Falls within three years of reaching the American shad or blueback herring trigger numbers at the SHP. Phase II requirements of the 2003 Combined WQC for this project remain unchanged. Little Falls Project. The applicant proposes to align the WQC for this project with the Settlement Agreement and provide an additional option regarding fish passage by allowing either the installation of fish passage facilities at Little Falls within two years of achieving trigger numbers at the SHP fish counting facility, or the surrender of its FERC license and the removal of all dam spillways at Little Falls within three years after removal of the spillways at Mallison Falls. Phase II requirements of the 2003 Combined WQC remain unchanged. Gambo Project. The applicant requests an amendment to the 2003 WQC issued for Gambo Dam that removes the Phase II fish passage requirements.

1 The Settlement Agreement is a document that was created and entered into by a number of organizations, including Sappi, the United States Department of Interior (DOI) and the United States Fish and Wildlife Service (USFWS), the Maine Department of Marine Resources (MDMR), the Conservation Law Foundation (CLF), the Friends of the Presumpscot River (FOPR), and the City of Westbrook, collectively known as “the Parties”, in order to facilitate safe, timely, and effective fish passage at the SHP dam site and at the four additional upstream dams on the Presumpscot River owned by Sappi, following the cessation of operations at the SHP.


Dundee Project. The applicant requests an amendment to the 2003 WQC issued for Dundee Dam that removes the Phase II fish passage requirements. In a letter dated April 25, 2018, the applicant requested that the Department process the SHP MWDCA application and WQC amendment and the four upstream WQC amendment applications on a consolidated basis through a single Order. The Department had previously consolidated these projects in the 2003 Combined WQC. In a letter dated May 9, 2018, the Department approved the applicant’s request for consolidation, and in a letter dated May 14, 2018, explained its rationale for doing so. The Department determined that based on the applicant’s request, the 2003 Combined WQC, the materials submitted by the applicant, and Chapter 2(11)(C) of the Department’s Rules regarding the processing of applications, consolidation of all pending Sappi applications and requests is appropriate. Furthermore, consolidation is deemed appropriate due to the successive, interconnected nature of the projects, including the 2003 Combined WQC requirements and conditions. Consolidation of all pending Sappi applications and requests is also supported by Section 635-B of the MWDCA, 38 M.R.S.A. § 635-B, which requires that the Department’s actions with respect to WQC occur at the same time it approves or disapproves a requested MWDCA permit.

2. DESCRIPTION OF EXISTING PROJECTS AND OPERATIONS

SHP. The SHP is located at approximately river mile 11 on the Presumpscot River in the City of Westbrook in Cumberland County. A natural island bisects the river and creates an eastern and western channel. The SHP dam impoundment extends approximately five miles upstream to the tailrace of the Mallison Falls dam. The impoundment covers approximately 87 acres. The original SHP dam and hydroelectric facility was constructed in 1887. In 1907, the current SHP facilities replaced the original infrastructure. The dam as it exists today consists of a 322-foot long diversion dam, which is bisected by the island. The eastern channel spillway is 220 feet long by 10 feet high, and the western spillway is 102 feet long and 12 feet high. The spillway crest elevations vary from 69.8 feet to 70.0 feet NGVD 29 datum2. The SHP is also comprised of two bypass reaches on either side of the island, approximately 475 and 390 feet long. The SHP has an intake canal measuring 380 feet long by 36 feet wide. Other appurtenant features include: a 60-foot long headgate, an 80-foot long concrete forebay, and a 49-foot wide by 71-foot long powerhouse. The powerhouse has three turbines, each with a capacity of 450 kilowatts (kW). The SHP is operated in run-of-river mode, with a total capacity of 1.35 megawatts (MW). Historically, the SHP has generated 7,600 MW hours annually; however, it is not currently generating. Downstream of the dam, the SHP also has a 345-foot long tailrace channel, formed by a 33-foot high concrete wall.

Mallison Falls Project. The Mallison Falls Project is located at river mile 16.4 in the Town of Windham. It consists of a 14-foot high, 358-foot-long concrete, masonry and cut granite diversion dam without flashboards, a 70-foot-long headgate structure, a 675-

2 All elevations are based on NGVD 29 datum


foot-long bedrock-lined intake power canal, a powerhouse containing two turbine generator units with a total rated generating capacity of 800 kW, and is operated in run-of-river mode. The Mallison Falls dam creates an 8-acre impoundment with a normal full pond elevation of 90.6 feet. The impoundment extends 0.5 miles upstream to the tailwaters of the Little Falls Project. There is a 675-foot long bypass reach between the dam and powerhouse tailwaters. The lower 375 feet of the bypass reach is back-watered by discharges from the Mallison Falls powerhouse and by the downstream SHP impoundment. The Mallison Falls Project dam was constructed in and has been in existence since 1900. Little Falls Project. The Little Falls Project is located at river mile 16.9 in the Town of Windham. It consists of a 14-foot high, 310-foot-long, L-shaped concrete and masonry dam with 2-foot-high flashboards and a powerhouse integral to the dam containing four turbine generator units with a total rated generating capacity of 1,000 kW, and is operated in run-of-river mode. The Little Falls dam creates a 29-acre impoundment with a normal full pond elevation of 108.7 feet. The impoundment extends 1.7 miles upstream to the tailwaters of the Gambo Project. There is a 300-foot long bypass reach between the dam and powerhouse tailwaters. The lower 100 feet of the bypass reach is back-watered by the Little Falls tailwaters. The Little Falls Project dam was constructed and has been in existence since the early 1900’s. Gambo Project. The Gambo Project is located at river mile 18.6 in the Town of Windham. It consists of a 24-foot high, 300-foot-long concrete dam with 16-inch-high spillway flashboards, a 50-foot-long headgate structure, a 737-foot-long concrete-lined intake power canal, a powerhouse containing four turbine generator units with a total rated generating capacity of 1,900 kW, and is operated in run-of-river mode. The Gambo dam creates a 151-acre impoundment with a normal full pond elevation of 135.13 feet. There is a 300-foot long bypass reach between the dam and the powerhouse tailwaters. The bypass reach is entirely free-flowing. The Gambo Project dam has been in existence and operation since 1911. Dundee Project. The Dundee Project is located at river mile 21.9 in the Town of Windham. It consists of a 50-foot high, 1,492-foot-long concrete dam with earthen abutments and two-foot-high spillway flashboards, a powerhouse integral with the dam containing three turbine generator units with a total rated generating capacity of 2,400 kW, and is operated in run-of-river mode. The Dundee dam creates a 197-acre impoundment with a normal full pond elevation of 187.22 feet. The Dundee impoundment extends 1.7 miles upstream to the tailwaters of the North Gorham Project (owned and operated by Brookfield White Pine Hydro LLC). The lower 200 feet of the bypass reach is back-watered by the downstream Gambo Project impoundment. The Dundee Project dam was constructed in 1913 and has been in operation since that time.

3. REGULATORY HISTORY

A. Background of FERC Licenses. On October 31, 1979, FERC issued an original license under the Federal Power Act for the operation of the constructed SHP for a term of 20 years. In 1996, Sappi requested that the FERC license for the SHP be modified to expire


on January 26, 2001, to enable a coordinated review with four additional hydropower projects on the Presumpscot River: the Mallison Falls Project, the Little Falls Project, the Gambo Project, and the Dundee Project (i.e., the other four Presumpscot River Hydro Projects). Sappi filed with FERC an application to extend or accelerate the life of the licenses for the five Presumpscot River Projects on October 4, 1995, which was granted on January 26, 1996. This allowed for the consolidated review of the licenses. On April 30, 2003, the Department issued the 2003 Combined WQC, which addressed the five Presumpscot River Hydro Projects on a combined basis, and FERC provided an Order Issuing Subsequent License for each of the five Projects on October 2, 2003, which incorporated the respective WQCs from the 2003 Combined WQC. The original licenses for the Presumpscot River Hydro Projects did not contain any conditions requiring the installation or operation of fish passage facilities. However, the 2003 Combined WQC, which also became part of the subsequent FERC licenses for the Presumpscot River Hydro Projects, included conditions regarding: (1) upstream eel passage at all five projects; (2) operational and other measures for downstream eel passage at all five projects; and (3) upstream fish passage facilities for anadromous fish at each of the five projects according to a phased implementation schedule.

B. 2003 Combined WQC. On April 30, 2003, the Commissioner of the Department of

Environmental Protection issued a WQC for the continued operation of the SHP (#L-19717-33-E-N), along with four other Presumpscot River Hydro Projects, Dundee (Order #L-19713-33-E-N), Gambo (#L-19714-33-E-N), Little Falls (#L-19715-33-E-N), and Mallison Falls (#L-19716-33-E-N).

In the 2003 Combined WQC, the Department discussed the fact that the Maine Department of Inland Fisheries and Wildlife (MDIFW), MD M R, and Atlantic Salmon Commission (ASC) were pursuing plans for the restoration of anadromous fish (including river herring, American shad, and Atlantic salmon) in the Presumpscot River, and had, in 2001, jointly issued a “Draft Fishery Management Plan for the Presumpscot River Basin”. Plan goals included restoration of anadromous fish species, calling for installation of upstream fish passage at the SHP, the Mallison Falls Project, and the Little Falls Project in Phase I.

Fishway. The fishway prescription in the 2003 Combined WQC requires the installation of Phase I upstream fish passage facilities at the Saccarappa, Mallison Falls, and Little Falls Projects following successful passage at the downstream Smelt Hill dam and Cumberland Mills dam, and contains additional provisions for Phase II upstream and downstream passage facilities for all five Projects. Smelt Hill dam was removed in October 2002 and fish passage facilities were completed and operational in May 2013 at Cumberland Mills dam. Phase I of the WQC and FERC license requires Sappi to construct a Denil fishway and fish counting facilities at the SHP dam no later than two years after fish passage is available at the Cumberland Mills dam. In Phase I, upstream fish passage facilities required at Mallison Falls and Little Falls dams are triggered by fish counted at the SHP. Concurrent with construction of upstream fish passage facilities, Sappi must install 1-inch trashracks and appropriate bypass facilities for downstream fish passage at SHP, Mallison Falls and Little Falls dams.


2013 Hydropower Surrender Application for the SHP. On December 31, 2013, the applicant filed with FERC a license surrender application for the SHP. A corresponding MWDCA application (#L-19717-3D-F-N) was filed with the Department on December 31, 2013. On March 28, 2014, Sappi filed with FERC an application to amend the fishway prescription in the SHP license to extend the deadline for fish passage by two years to May 1, 2017. Additionally, the applicant filed a motion to stay the December 31, 2013 Surrender Application. The MWDCA application was withdrawn by the applicant on March 28, 2014. Sappi formally withdrew the Surrender Application on September 4, 2014.

From September 2014 through September 2015, the USFWS, the DOI, the MDIFW, the

MDMR, the City of Westbrook, the FOPR, and the CLF (collectively known as the “Parties” to the Settlement Agreement), had numerous technical meetings to discuss alternative fish passage design for the SHP.

Extensions of Time. On March 28, 2014, Sappi submitted an application to the Department to revise the existing WQC for the SHP to extend the deadline for installing anadromous fish passage facilities at the SHP by two years, to allow consultation with resource agencies and non-governmental organizations regarding fish passage design. The Department issued an Order (#L-19717-33-G-M) extending the fish passage deadline for the SHP by two years on June 4, 2014. On March 28, 2014, Sappi also requested that FERC amend its license for the SHP to extend the deadline for installing anadromous fish passage facilities at the project by two years, to May 1, 2017, to facilitate the additional consultation regarding the surrender of the license, and to stay the surrender proceedings during evaluation of two fish passage design alternatives. On March 25, 2016, Sappi filed an application with the Department to extend the deadline for fish passage at the SHP for one additional year, to May 1, 2018, to allow time for negotiations toward settlement of differences in approach to fish passage between Sappi, the resource agencies, and non-governmental organizations. The application was supported by the CLF, the FOPR, and the MDMR. The Department issued a minor revision (#L-19717-33-I-M) extending the fish passage deadline for one additional year, until May 1, 2018, on May 25, 2016. FERC requested Sappi withdraw its surrender application, and, after gaining concurrence of the Department by its June 3, 2014 revision of the WQC, FERC amended its license to extend the deadline for fish passage installation and placed the surrender application in abeyance on July 30, 2014 and was subsequently withdrawn on September 4, 2014.

C. 2015 Hydropower Surrender Application for the SHP. On December 2, 2015, Sappi filed

a new application with FERC to surrender the SHP license. In that new application, Sappi proposed to discontinue the power generation at the SHP; remove the eastern spillway, western spillway, and ancillary structures in the forebay channel; replace material excavated during construction of the existing forebay at the upstream end of the western channel to control flow to facilitate nature-like fish passage in the upper western channel and create a hydraulic control at elevation 64 feet to match the natural hydraulic control in the eastern channel; fill the existing tailrace; and install a double Denil fishway within the filled tailrace area. The FERC Surrender of License application was accepted for filing on March 3, 2016.


In conjunction with its surrender application, Sappi filed an application on December 2, 2015 for a permit under the MWDCA for the proposed activities at the SHP. Extensions of Time. On March 7, 2016, Sappi requested that FERC stay all filing deadlines in the SHP surrender review process, and subsequently requested that the MWDCA application be placed on hold until July 1, 2016, to allow Sappi and the Non-Sappi Parties time to resolve their differences in approach to fish passage at the SHP and other terms and conditions of license surrender. The MWDCA application was placed on hold on March 8, 2016. The MWDCA application was withdrawn and simultaneously resubmitted to the Department on October 5, 2016, to allow additional time for resolving the Settlement Agreement. On March 17, 2016, FERC issued a Notice of Extension of Time for Filing of Comments, Motions to Intervene, and Protests, in response to the request by Sappi and the Non-Sappi Parties. On March 22, 2016, Sappi filed an application with FERC to amend its licenses for the Saccarappa, Mallison Falls, Little Falls, Gambo, and Dundee Projects to incorporate a revised USFWS section 18 fish passage prescription. On June 2, 2016, Sappi submitted a letter to FERC requesting further extension of the 2015 SHP Surrender Application comment deadline, to October 1, 2016, to allow Sappi, USFWS, and MDMR to finalize settlement documents. On June 15, 2016, FERC issued an Order extending until October 1, 2016, the deadline for comments on the 2015 SHP Surrender Application to allow Sappi, USFWS, and MDMR to finalize settlement documents. On September 23, 2016, USFWS filed a request with FERC to extend the comment period on Sappi’s 2015 Surrender Application to December 15, 2016, to allow the parties to reach a comprehensive settlement agreement, and FERC granted the requested extension. On November 15, 2016, Sappi filed with FERC and the Department the 2016 Settlement Agreement. On December 15, 2016, Sappi held a public information meeting in Westbrook, informing the public about a Minor Revision application filed with the Department regarding a requested extension of the deadline for operational fish passage at the SHP. At the public information meeting, Sappi also discussed the 2016 Settlement Agreement reached by the Parties. On December 27, 2016, the Department issued an Order extending the operational date for upstream anadromous fish passage at the SHP to six years, setting May 1, 2019 as the deadline. On February 14, 2017, FERC amended the SHP license to extend the deadline


for fish passage to May 2019. Sappi withdrew its 2015 Surrender Application and its then-pending MWDCA application on February 17, 2017.

D. 2018 Hydropower Surrender Application for the SHP. On March 23, 2018, Sappi filed a new application with FERC to surrender the SHP license. In its application, and consistent with the Settlement Agreement, Sappi proposed to discontinue the power generation at the SHP; remove the eastern spillway, western spillway, and ancillary structures in the forebay channel; replace material excavated during construction of the existing forebay at the upstream end of the western channel to control flow to facilitate nature-like fish passage in the upper western channel and create a hydraulic control at elevation 64 feet to match the natural hydraulic control in the eastern channel; fill the existing tailrace; and install a double Denil fishway within the filled tailrace area. The Surrender of License application for the SHP was accepted for filing by FERC on May 11, 2018. Concurrently with the Surrender Application, on March 23, 2018, Sappi filed with FERC applications to amend the existing Licenses for the four upstream hydropower dams. These applications were also accepted for filing by FERC on May 11, 2018. On March 28, 2018, in conjunction with its new FERC surrender application for the SHP, and consistent with the Settlement Agreement, Sappi filed a new application for a permit under the MWDCA and associated WQC deadline for construction activities proposed for the SHP with the Department, which was accepted by the Department for processing on April 5, 2018. On May 9, 2018, the Department accepted for processing applications to amend WQC for the Mallison Falls, Little Falls, Gambo, and Dundee Projects, which are upstream of the SHP dam on the Presumpscot River. By letter dated May 9, 2018, the Department consolidated the upstream WQC amendment applications with the SHP MWDCA and WQC application.

4. APPLICABLE WATER QUALITY STANDARDS

A. Classification. The waters of the Presumpscot River including all impoundments, and its tributaries that will be affected by all five Presumpscot River Projects, are currently classified as follows: Presumpscot River and its tributaries: Class A – from the outlet of Sebago Lake to its confluence with the Pleasant River, excluding Dundee Pond. Class GPA – Dundee Pond. Class B – from its confluence with the Pleasant River to Saccarappa Falls. The receiving water that may be affected by the proposed project is currently classified as follows: Class C – from Saccarappa Falls to tidewater.


B. Designated Uses. Pursuant to 38 M.R.S. § 465(2)(A), Class A waters shall be of such quality that they are suitable for the designated uses of drinking water after disinfection; fishing; agriculture; recreation in and on the water; industrial process and cooling water supply; hydroelectric power generation, except as prohibited under Title 12, section 403; navigation; and as habitat for fish and other aquatic life.

Pursuant to 38 M.R.S. § 465(3)(A), Class B waters shall be of such quality that they are

suitable for the designated uses of drinking water supply after treatment; fishing; agriculture; recreation in and on the water; industrial process and cooling water supply; hydroelectric power generation, except as prohibited under Title 12, section 403; navigation; and as habitat for fish and other aquatic life.

Pursuant to 38 M.R.S. § 465(4)(A), Class C waters shall be of such quality that they are

suitable for the designated uses of drinking water supply after treatment; fishing; agriculture; recreation in and on the water; industrial process and cooling water supply; hydroelectric power generation, except as prohibited under Title 12, section 403; navigation; and as habitat for fish and other aquatic life.

Pursuant to 38 M.R.S. § 465-A(1)(A), Class GPA waters shall be of such quality that

they are suitable for the designated uses of drinking water after disinfection; recreation in and on the water; fishing; agriculture; industrial process and cooling water supply; hydroelectric power generation; navigation; and as habitat for fish and other aquatic life

C. Numeric Standards. Pursuant to 38 M.R.S. § 465(2)(B), the dissolved oxygen content of

Class A waters shall be not less than 7 parts per million or 75% saturation, whichever is higher.

Pursuant to 38 M.R.S. § 465(3)(B), the dissolved oxygen content of Class B waters shall

be not less than 7 parts per million or 75% of saturation, whichever is higher, except that for the period from October 1st to May 14th, in order to ensure spawning and egg incubation of indigenous fish species, the 7-day mean dissolved oxygen concentration shall not be less than 9.5 parts per million and the 1-day minimum dissolved oxygen concentration shall not be less than 8.0 parts per million in identified fish spawning areas3.

Pursuant to 38 M.R.S. § 465(4)(B), the dissolved oxygen content of Class C waters may

not be less than 5 parts per million or 60% of saturation, whichever is higher, except that in identified salmonid spawning areas where water quality is sufficient to ensure spawning, egg incubation and survival of early life stages, that water quality sufficient for these purposes must be maintained. In order to provide additional protection for the

3 Class B numeric criteria also require that between May 15th and September 30th, the number of Escherichia coli bacteria of human and domestic animal origin in these waters may not exceed a geometric mean of 64 per 100 milliliters or an instantaneous level of 236 per 100 milliliters. In determining human and domestic animal origin, the Department shall assess licenses and unlicensed sources using available diagnostic procedures. This numeric criterion is primarily affected by wastewater discharges to the water body and is generally not affected by hydropower operations or by construction activities.


growth of indigenous fish, the 30-day average dissolved oxygen criterion of a Class C water is 6.5 parts per million using a temperature of 22 degrees centigrade or the ambient temperature of the water body, whichever is less, if (a) a license or water quality certificate other than a general permit was issued prior to March 16, 2004 for the Class C water and was not based on a 6.5 parts per million 30-day average dissolved oxygen criterion, or (b) a discharge or a hydropower project was in existence on March 16, 2005 and required but did not have a license or water quality certificate other than a general permit for the Class C water. In Class C waters not governed by the conditions described in (a) and (b), dissolved oxygen may not be less than 6.5 parts per million as a 30-day average based upon a temperature of 24 degrees centigrade or the ambient temperature of the water body, whichever is less. This criterion for the water body applies to licenses and water quality certificates issued on or after March 16, 20044.

Pursuant to 38 M.R.S. § 465-A(1)(B), Class GPA waters must be described by their

trophic state based on measures of the chlorophyll “a” content, Secchi disk transparency, total phosphorous content, and other appropriate criteria. Class GPA waters must a have a stable or decreasing trophic state, subject only to natural fluctuations, and must be free of culturally induced algae that impair their use and enjoyment.5

In accordance with 38 M.R.S. § 464(13), compliance with dissolved oxygen criteria in

existing riverine impoundments is measured as follows:

1. Compliance is not measured within 0.5 meters of the bottom;

2. Where mixing is inhibited due to thermal stratification, compliance is not measured below the point of thermal stratification when such stratification occurs; and

3. Where mixing is inhibited due to natural topographic features, compliance is not

measured within that portion of the impoundment that is topographically isolated. Such natural topographic features may include, but not be limited to, natural deep holes or river bottom sills.

4 Class C numeric criteria also require that between May 15th and September 30th, the number of Escherichia coli bacteria of human and domestic animal origin in Class C waters may not exceed a geometric mean of 126 per 100 milliliters or an instantaneous level of 236 per 100 milliliters. In determining human and domestic animal origin, the department shall assess licensed and unlicensed sources using available diagnostic procedures. This numeric criterion is primarily affected by wastewater discharges to the water body and is generally not affected by hydropower operations or by construction activities. 5 Class GPA numeric criteria also require that the number of Escherichia coli bacteria of human and domestic animal origin in Class GPA waters may not exceed a geometric mean of 29 per 100 milliliters or an instantaneous level of 194 per 100 milliliters. In determining human and domestic animal origin, the department shall assess licensed and unlicensed sources using available diagnostic procedures. This numeric criterion is primarily affected by wastewater discharges to the water body and is generally not affected by hydropower operations or by construction activities.


D. Narrative Standards. The habitat of Class A waters shall be characterized as natural. Except as provided in 38 M.R.S. § 465(2)(C), direct discharges to these waters licensed after January 1, 1986 are permitted only if, in addition to satisfying all the requirements of this article, the discharged effluent will be equal to or better than the existing water quality of the receiving waters.6,7

The habitat of Class B waters shall be characterized as unimpaired. Discharges to Class

B waters shall not cause adverse impact to aquatic life in that the receiving waters shall be of sufficient quality to support all aquatic species indigenous to the receiving water without detrimental changes in the resident biological community.

Discharges to Class C waters may cause some changes to aquatic life, except that the

receiving waters must be of sufficient quality to support all species of fish indigenous to the receiving waters and maintain the structure and function of the resident biological community8.

The habitat of Class GPA waters shall be characterized as natural. There may be no new

direct discharge of pollutants into Class GPA waters.9 Material may not be placed on or removed from the shores or banks of a Class GPA water body in such a manner that materials may fall or be washed into the water or that contaminated drainage may flow or leach into those waters, except as permitted pursuant to section 480-C. A change of land use in the watershed of a Class GPA body may not, by itself or in combination with other activities, cause water quality degradation that impairs the characteristics and designated uses of downstream GPA waters or causes an increase in the trophic state of those GPA

6 Class A numeric criteria also require that the aquatic life and bacteria content of Class A water shall be as naturally occurs. This Class A aquatic life standard for existing hydropower impoundments such as those at the Presumpscot River Hydro Projects may be met by virtue of the standards in 38 M.R.S. § 464(9-A)(D) and 38 M.R.S. § 464(10), which allow for attainment of Class A and B habitat and aquatic life standards by meeting minimum Class C standards set forth in 38 M.R.S. § 465(4)(C), which in turn allows for some changes to aquatic life. 7 Prior to issuing a discharge license, the Department shall require the applicant to objectively demonstrate to the department’s satisfaction that the discharge is necessary and that there are no other reasonable alternatives available. Discharges into water of this classification licensed prior to January 1, 1986, are allowed to continue only until practical alternatives exist. 8 This paragraph does not apply to aquatic pesticide or chemical discharges approved by the Department and conducted by the Department, the MDIFW, or an agent of either agency for the purpose of restoring biological communities affected by an invasive species. 9 The following are exempt from this provision: (1) Chemical discharges for the purpose of restoring water quality approved by the Department; (2) Aquatic pesticide or chemical discharges approved by the Department and conducted by the Department, the MDIFW, or an agent or either agency for the purpose of restoring biological communities affected by an invasive species; (3) Storm water discharges that are incompliance with state and local requirements, and (4) Discharges of aquatic pesticides approved by the Department for the control of mosquito-borne diseases in the interest of public health and safety using materials and methods that provide for protection of nontarget species. Discharges into these waters licensed prior to January 1, 1986, are allowed to continue only until practical alternative exist.


waters. 38 M.R.S. § 465(3)(A), 38 M.R.S. § 465(3)(C), 38 M.R.S. § 465(4)(C), 38 M.R.S. § 465-A(1)(A).

Pursuant to 38 M.R.S. § 467(9)(1-A), for the purposes of water quality certification of the

Dundee hydropower project, Class A habitat characteristics and aquatic life criteria of the waters immediately downstream and measurably affected by that project are deemed to be met if the Class B habitat characteristics and aquatic life criteria, as described in 38 M.R.S. § 465(3)(A,C), are met.

E. Antidegradation. The Department may only approve water quality certification if the

standards of classification of the waterbody and the requirements of the State’s antidegradation policy will be met. The Department may approve water quality certification for a project affecting a waterbody in which the standards of classification are not met if the project does not cause or contribute to the failure of the waterbody to meet the standards of classification. 38 M.R.S. § 464(4)(F).

5. DEPARTMENT JURISDICTION A. MWDCA Permit. The proposed removal of the Saccarappa dam spillways, construction

of the double Denil fishway, and sculpting of the channels qualify as the structural alteration of a hydropower project under the terms of the MWDCA, 38 M.R.S. §§ 630–637. Section 633 of the MWDCA, 38 M.R.S. § 633, provides that no person may initiate construction or reconstruction of a hydropower project, or structurally alter a hydropower project in ways that change water levels or flows, without first obtaining a permit from the Department. Pursuant to Section 634-A of the MWDCA, 38 M.R.S. § 634-A, the Department administers the permit process for projects located wholly or partly within an organized municipality. All the Presumpscot River Hydro Projects, including the SHP, are located within organized municipalities, and the Department has jurisdiction over MWDCA permitting for the SHP.

B. Water Quality Certification for the SHP. The proposed removal of the Saccarappa dam qualifies as an “activity…which may result in (a) discharge into the navigable water (of the United States)” under the Clean Water Act (CWA), 33 U.S.C. 1251 et seq. Section 401 of the CWA requires that any applicant for a federal license or permit to conduct such an activity obtain a certification from the State in which the discharge originates or will originate that the activity will comply with applicable State water quality standards. Sappi has filed an application with the Corps of Engineers for approval of dam removal activities under Section 404 of the CWA. Therefore, water quality certification is required for the proposed dam removal. Further, the MWDCA application for the proposed work at SHP includes a request to amend the existing WQC for SHP for a two-year extension of the deadline for fish passage installation, in order to provide sufficient time to carry out the proposed work.

The Department has been designated by the Governor of the State of Maine as the certifying agency for issuance of Section 401 water quality certification for all activities in the State not subject to Land Use Planning Commission (LUPC) permitting and review. The SHP dam and the other four upstream Presumpscot River Hydro Projects are


each located in an organized municipality that is not subject to LUPC’s regulatory jurisdiction. In addition, as a matter of state law under Section 635-B of the MWDCA, 38 M.R.S.A. § 635-B, the issuance of a water quality certificate is mandatory in every case where, as is the case here with respect to Sappi’s MWDCA application for the proposed decommissioning activities at the SHP, the Department approves an application for a MWDCA permit. Thus, under both state and federal law, the Department has jurisdiction to issue a WQC for the SHP. In addition, Section 635-B of the MWDCA requires that the Department’s actions with respect to WQC occur at the same time that it approves or disapproves a proposed project, which supports the Department’s consolidation of Sappi’s SHP application for a MWDCA permit and WQC with Sappi’s related requests for an extension of the existing upstream fish passage deadline for the SHP and for WQC amendments for the upstream Presumpscot River Hydro Projects.

C. Water Quality Certification Amendments for the Upstream Mallison Falls, Little Falls, Gambo, and Dundee Projects. Sappi filed with FERC, on March 23, 2018, applications to amend the existing licenses for the four upstream Presumpscot River Hydro dams. Each federally licensed dam that may result in a discharge to navigable waters requires a Section 401 WQC. Sappi’s applications to FERC to amend the existing FERC licenses supports the Department’s authority to amend the state WQC for those projects. The proposed WQC amendments to the four upstream dams are also properly subject to review by the Department under the Department’s statutory and regulatory authority to alter conditions of any licenses, which as defined in the Department’s Rule Chapter 2, ¶ 1(L), includes certifications such as WQCs. See 38 M.R.S.A. §§ 344(9), 341-D(3), 342(11-C), 414-A(5)(B); Rule Chapter 2, ¶ 21. State law also authorizes the Department to issue a WQC pursuant to Section 401 of the CWA when the standards of classification of the waterbody and the State’s antidegradation policy are met. 38 M.R.S. § 464(4)(F)(3). Under a 1996 Executive Order of the Governor of the State of Maine, the Department is designated as the certifying agency for issuance of Section 401 WQCs for all activities in the State not subject to LUPC permitting and review. Because the proposed WQC amendments to the four upstream Presumpscot River Hydro Projects are not subject to LUPC permitting and review, the Department is the certifying agency for the projects under Executive Order No. 3 FY 96/97, and the Department has jurisdiction to amend the WQCs for the Mallison Falls, Little Falls, Gambo, and Dundee Projects.

6. BURDEN OF PROOF

The Department’s Rules Concerning the Processing of Applications and Other Administrative Matters, 06-096 C.M.R. ch. 2 (Rule Chapter 2) provide that an applicant for any kind of license or license amendment, including the requested MWDCA permit and WQC for the SHP and the requested WQC amendments for the four upstream


Presumpscot River Hydro Projects,10 has the burden of proof to affirmatively demonstrate to the Department that each of the licensing criteria in statute or rule has been met. See Rule Chapter 2(11)(F). For those matters that are not disputed, the applicant shall present sufficient evidence that the licensing criteria are satisfied. Id. For those matters relating to licensing criteria that are disputed by evidence the Department determines is credible, the applicant has the burden of proving by a preponderance of the evidence that the licensing criteria are satisfied. Id.

7. APPLICATION FOR MWDCA PERMIT AND WQC FOR THE SHP Section 635 of the MWDCA, 38 M.R.S. § 635, provides that, upon receipt of a properly completed application, the Department shall either (1) approve the proposed project upon such terms and conditions as are appropriate and reasonable to protect and preserve the environment and the public’s health, safety and general welfare, (2) disapprove the proposed project, or (3) schedule a hearing on the proposed project. Section 401(d) of the CWA provides that a WQC shall set forth any limitations necessary to assure that an applicant for a federal license or permit will comply with any appropriate requirements of state law, and that such limitations shall become a condition on any federal license or permit issued for the activity. As discussed above, a permit is required under the MWDCA for the proposed construction work at the SHP. The MWDCA is a state water quality-related law. Consequently, the terms and conditions of any MWDCA permit issued for the proposed SHP constitute appropriate and necessary limitations and allowances to be set forth in any WQC issued for the activity.

A. SHP APPLICATION – MWDCA APPROVAL CRITERIA

Pursuant to Section 636 of the MWDCA, 38 M.R.S. § 636, a permit shall be approved when the applicant has demonstrated that the following criteria have been met:

1. The applicant has the financial capability and technical ability to undertake the

project. 2. The applicant has made adequate provisions for protection of public safety. 3. The project will result in significant economic benefits to the public, including, but

not limited to, creation of employment opportunities for workers of the State. 4. The applicant has made adequate provisions for traffic movement of all types out of

or into the development area.

10 Under Rule Chapter 2(1)(L), “License” is defined to mean the whole or any part of any new license, amended license, renewal license, transfer, permit, variance, approval or certification issued by the Department, and thus encompasses both the requested MWDCA permit and WQC for the SHP and the requested WQC amendments for each of the four upstream Presumpscot River Hydro Projects.


5. Within the jurisdiction of the Maine Land Use Regulation Commission, the project is consistent with zoning adopted by the Commission.

6. The applicant has made reasonable provisions to realize the environmental benefits of

the project, if any, and to mitigate its adverse environmental impacts. 7. The advantages of the project are greater than the direct and cumulative adverse

impacts over the life of the project based upon the following considerations:

a. Whether the project will result in significant benefit or harm to soil stability, coastal and inland wetlands or the natural environment of any surface waters and their shorelines;

b. Whether the project will result in significant benefit or harm to fish and wildlife

resources. In making its determination, the Department shall consider other existing uses of the watershed and fisheries management plans adopted by the MDIFW, and the MDMR;

c. Whether the project will result in significant benefit or harm to historic and

archaeological resources; d. Whether the project will result in significant benefit or harm to the public rights of

access to and use of the surface waters of the State for navigation, fishing, fowling, recreation and other lawful public uses;

e. Whether the project will result in significant flood control benefits or flood

hazards; and f. Whether the project will result in significant hydroelectric energy benefits,

including the increase in generating capacity and annual energy output resulting from the project and the amount of nonrenewable fuels it would replace.

In addition, under Section 635-B of the MWDCA, a WQC is also required for Department approval of an MWDCA permit application. Such a WQC may be issued if there is a reasonable assurance that the SHP, subject to conditions imposed by the Department, will not violate applicable state water quality standards, including the provisions of the State’s antidegradation policy, as required for WQC under Section 401 of the Clean Water Act. These approval criteria for the SHP application are analyzed in Sections 7(B)-(U) below.

B. SHP APPLICATION – SUMMARY OF PROPOSAL

In accordance with the Settlement Agreement, Sappi is proposing to surrender its license to generate power at the SHP site and decommission its generating facility, including the complete demolition and removal of the existing powerhouse and ancillary structures, the removal of both the eastern and western spillways, and fill in the existing tailrace


channel. Sappi is further proposing to construct a double Denil fishway in the filled tailrace, as well as make alterations and repairs as needed to the tailrace guard wall, or portions of the guard wall as needed to support the Denil fishway, and maintain effective operation. The applicant is also proposing to construct a fish counting facility at the Denil fishway exit. The eastern and western channels will be reshaped to facilitate fish passage. The application for the SHP includes a request to extend by two years the deadline to install fish passage at the SHP.

C. SHP APPLICATION – DETAILED PROJECT ACTIVITIES/SCHEDULE

As set forth in its SHP application, Sappi proposes the following sequence of SHP decommissioning and dam removal activities.

Site Preparation

1) Sappi intends to reconstruct, reinforce or replace the existing bridge over the tailrace

channel to allow for safe access to the instream island for construction vehicles.

2) Sappi will install temporary flashboards on the western spillway.

3) With the temporary flashboards installed, the applicant will close the gates in the forebay channel to divert the full flow of the river into the eastern channel spillway.

4) A 24-foot long section of wall in the forebay channel, known as the overflow

spillway and located immediately upstream of the trashracks, will be demolished. At flows of less than 1,000 cubic feet per second (cfs), the water level in the river upstream of the SHP dam should be controlled by the bedrock elevation at the upstream end of the forebay channel.

5) With the forebay gates closed, and flow diverted to the eastern channel, Sappi will

construct a new temporary access road from the southern end of the instream island to the tailrace channel. A cofferdam will be installed to divert flow away from the western side of the lower falls, the goal being to divert river flow away from the downstream end of the tailrace channel.

6) Once the overflow spillway has been removed, the forebay head gates will be opened,

diverting river flow from the eastern channel to the western channel. Water Control, Eastern Spillway Removal

1) Opening the forebay gates will lower the water level upstream of the SHP dam. This will expose an existing gravel wet road above the eastern channel, which will be used to access the eastern channel.

2) Upstream of the eastern channel work area, a cofferdam will be installed.


3) Following the installation of the upstream cofferdam, the eastern spillway removal and reshaping of the ledge in the eastern channel will begin.

4) Simultaneous to the work in the eastern channel, a cofferdam will be installed at the downstream end of the tailrace channel.

5) Following the de-watering of the tailrace, the work to fill in the tailrace will

commence.

6) By opening and closing the forebay headgates, the applicant can temporarily divert the flow through the western channel to facilitate minor detail work on the bedrock in the eastern channel.

7) After work has been completed in the eastern channel, the cofferdam will be

removed. Removal of the cofferdam will allow flow to be directed into the eastern channel.

8) The forebay headgates will be closed to divert flow into the eastern channel to

evaluate the configuration of the channel for fish passage. To facilitate minor work in the eastern channel, the forebay headgates may be opened and closed to reevaluate fish passage.

Western Spillway Construction

1) Following completion of work in the eastern channel, the forebay gates will be opened to divert flow into the eastern channel. A cofferdam will be installed at the upstream end of the western channel.

2) After the cofferdam upstream of the western channel is installed, the western spillway, powerhouse, forebay channel walls and gate structures, as well as under taking rock removal and sculpting in the western channel.

3) Per Section 2.1.4.2 of the Settlement Agreement, the applicant’s engineering

consultant, USFWS, and MDMR may conduct on-site observations of construction, which may include observing a range of flows.

4) Concurrent with the work in the western channel, construction activities will continue

in the tailrace area, including removal of the barrier wall that separates the western channel and the tailrace, construction of new concrete walls, filling in the tailrace and construction of the double Denil fishway.

Stabilization and Closeout

1) Following completion of work in the western channel, the upstream cofferdam will be removed.

2) Removal of access roads, including bridge to mid-river island.


3) Remove debris.

Testing and Operation Management

1) Conduct testing and adaptive management of fish passage facility.

2) Prepare operational procedures manual for ongoing operation and maintenance of the Denil fishway.

The proposed SHP decommissioning and dam removal activities, as set forth above, will involve:

1) The permanent removal of approximately 1,490 cubic yards of concrete from the dam

spillways, and an estimated 11,570 cubic yards of material from the removal of the forebay flood wall, powerhouse and turbine intake structure, and the tailrace wall;

2) The temporary placement and subsequent removal of approximately 940 cubic yards

of washed stone fill and clean stone fill below the normal high water line for access roads;

3) The temporary placement and subsequent removal of approximately 930 cubic yards

of sandbags and the use of 500 cubic yards of cellular style cofferdam below the Normal High Water Line; and

4) The permanent placement of approximately 5,582 cubic yards of clean material below

the Normal High Water Line and 18,620 cubic yards of clean material above the Normal High Water Line.

Following dam removal, water levels and wetted width in the river reach previously

impounded by the SHP dam will vary as a function of river flows. The project will establish hydraulic control of the river at elevation 64 feet, similar to the natural (ledge) hydraulic control in the eastern channel. When construction is complete water levels will be approximately 6.0 feet lower at the former dam site, under average river flow (1000 cfs). Water levels and wetted widths in the river below the dam are not expected to change following spillway removal.

Finally, following the completion of dam removal and follow-up activities, Sappi states

that the owners of the SHP fishway and its associated property will be responsible for the ongoing operations and maintenance of the Denil fishway, including cleaning, repairs and maintenance of the physical facilities, and operation of the fishway during the fish passage season. Sappi will prepare an operations and maintenance manual for the operations and maintenance associated with the fishway facility, and will submit that manual to MDMR and USFWS for review and comment prior to its implementation.

D. SHP MWDCA APPLICATION – FINANCIAL CAPABILITY AND TECHNICAL

ABILITY


Financial Capability. The total cost of the proposed project is estimated at $5,510,000. This includes approximately $903,000 for general site provisions, $582,000 for the eastern channel reshaping, $1,414,200 for the western channel reshaping, $1,036,000 for the removal of the powerhouse and associated structures, $1,508,000 for the construction of the double Denil fishway, and $66,800 for contingency, materials reuse, and construction management. In its application, Sappi states that it has a net worth in excess of $50,000,000 and tangible assets in Maine. Sappi intends to finance the proposed project through funds generated from its operations. Technical Ability. Sappi and its consultants possess the requisite technical ability to surrender Project operations, remove spillways, install the proposed double Denil fishway and reshape the eastern and western channels at the SHP site. Permitting and construction management support for the proposed project has been provided by Acheron Engineering and Alden Labs, whom Sappi has contracted for their services. These firms have proven experience in hydropower-related permitting and successful fishway design experience from the Cumberland Mills fishway project. Sappi has also contracted SumCo Eco-Contracting, LLC for construction of the proposed project. SumCo has substantial experience in dam removal. Sappi currently operates the Cumberland Mills fish ladder, which demonstrates its technical ability to operate the proposed double Denil fishway at the SHP. Discussion. Sappi has provided sufficient evidence to demonstrate that it and its consultants have the technical ability to complete the decommissioning of the SHP, the removal of the eastern and western spillways, the removal of the powerhouse and associated structures, and the installation and operation of the double Denil fishway. The Department finds the applicant has demonstrated that it has the financial capability to undertake the proposed removal project at the SHP, including the cost of post-construction operations and maintenance of the double Denil fishway, as well as the cost of complying with the terms and conditions of this Order satisfying the requirements of 38 M.R.S. § 636(1).

E. SHP MWDCA APPLICATION – PUBLIC SAFETY

Applicant’s Proposals. In order to ensure public safety, Sappi stated it will be necessary to limit public access to the site during construction. The access restriction will be temporary, only during the demolition/ construction activities. After the completion of construction activities, the public will have access to Saccarappa Falls. The applicant will take a number of steps to protect public safety prior to and during construction, including: (1) A notice of dam removal activities will be published in a local newspaper; communities upstream and downstream will be notified prior to dam demolition and water drawdown; (2) Barriers, fencing, and signs will be erected at the immediate work site to warn the public of construction activity and to restrict access; (3) All boat launches located in the immediate vicinity will be temporarily closed while the


impoundment drawdown is happening. Downstream of the SHP, the City of Westbrook owns and operates three boat launches within the Cumberland Mills impoundment. Sappi will request the City of Westbrook suspend public access during the drawdown; (4) The existing boat barriers upstream of both the east and west spillways will remain in place and maintained during the entire construction process; (5) The dam removal process will be slow to facilitate a controlled drawdown. Signage will be posted at commonly used recreation sites upstream and downstream to warn the public of potential changes in water level during the dam removal and drawdown; and (6) Existing permanent barriers restricting access to the SHP site will be maintained. Discussion. The applicant has provided evidence to demonstrate that it has made adequate provisions to protect public safety during the decommissioning of the SHP, the removal of the SHP dam spillways, and the installation of the double Denil fishway, as proposed. The Department finds that the applicant has adequately addressed public safety concerns with respect to the proposed activities at the SHP.

F. SHP MWDCA APPLICATION – PUBLIC BENEFITS

Employment. The applicant states that the activities at the SHP will create significant opportunities for short and long-term economic benefits to the public. The short-term benefits include: construction related employment, construction-related materials demand, and an increase in consumer spending by construction personnel. Long-term economic benefits will be derived from improved recreational opportunities such as boating and fishing. The restoration of anadromous fish above the SHP dam will enhance the viability of recreational fishing.

Taxes. The applicant states that the proposal for the SHP will drawdown the existing impoundment from 69.95 feet to 64 feet at average flows of 1,000 cfs. The anticipated drop is not expected to negatively impact property owners or property values along the river from the SHP upstream to Mallison Falls. Sappi notes in the FERC license surrender application that there are seven private docks located above SHP dam, all except two of which are seasonal. The proposed drawdown may require some reconfiguration of the docks, but the cost associated with such alterations is expected to be minimal. The applicant stated that it would relocate existing docks closer to the river edge or extend existing docks as the individual situation requires.

Other Public Costs and Benefits. Sappi also identified other areas of impact as a result of the proposed activities at the SHP, including three existing hand-carry boat launches, two of which are located on the Presumpscot River, and the remaining launch being located on the Little River. The drawdown will increase the distance between the existing launches and the water, which may become rutted and eroded. The applicant owns one of the existing boat launches on the Presumpscot River, which will no longer be usable following the drawdown. The other boat launch on the Presumpscot River is owned by the City of Westbrook and the applicant is proposing to mitigate any negative affect by extending an existing crushed stone walkway to the proposed waterline. After the drawdown, the boat launch on the Little River will no longer be usable, though walk-in access for anglers will still be available.


The restoration of anadromous fish to the Presumpscot River between the SHP and Mallison Falls will increase recreational fishing opportunities, which will in turn, increase visitation to the community, and will lead to increased spending at local businesses.

Discussion. The restoration of anadromous fish to the Presumpscot River will enhance angling experience to the public. The loss of the Little River hand-carry boat launch is mitigated by continued walk-in access for fishing. The applicant-owned boat launch will no longer be usable following the drawdown; however, access to the mainstem Presumpscot River will be maintained by improvements to the Westbrook boat launch. Based on the information provided, the Department finds that the proposal for the SHP will result in significant economic benefit to the public, provided that adequate measures are taken to mitigate any adverse impacts to public and private infrastructure, as discussed in other sections of this Order.

G. SHP MWDCA APPLICATION – TRAFFIC MOVEMENT

Construction Traffic. The decommissioning of the SHP and associated construction activities will generate construction traffic from the delivery and subsequent removal of equipment and temporary access road fill materials, the delivery of permanent fill materials, the removal of demolition debris and other construction spoils, and the daily movement of construction workers to and from the site. Sappi estimates that maximum staffing during construction will be 20-25 workers which will generate approximately 12-15 round-trips with conventional passenger vehicles per day. Equipment delivery is expected to be minimal, consisting of one medium sized crane; special provisions and temporary traffic control may be needed for delivery and removal of the crane. Concrete delivery will likely come from one of two concrete batch plants in Westbrook. Concrete delivery is not expected to cause any unusual disruption of traffic. Total truck traffic associated with the delivery and removal of fill and demolition debris will be on the order of 1,200 round trips, at a maximum rate of about 40 round trips per day for approximately one month. Delivery trucks will use State Route 237 and State Route 25B, to Main Street and the project property on Dana Street; disposal traffic will exit the site to Main Street for disposal in a former quarry at the intersection of Main Street and Larrabee Road. Sappi and their contractor will coordinate the delivery of fill material for the tailrace channel and disposal of spoil material from the spillways with the City of Westbrook Public Safety Department. Delivery and disposal will be suspended during any planned special events. Sappi will require the contractor to coordinate with the City of Westbrook Public Safety Department regarding the use of flaggers or law enforcement personnel at Mill Lane and Dana Street where trucks will enter and exit Main Street. Sappi does not anticipate any unusual or significant traffic issues related to operation of the fishway following construction. During routine operation one vehicle per day is expected to access the site for inspection of the fishway and related structures. Roads and Bridges. There are two local roads adjacent to the existing impoundment, Mill Street and Dana Street in Westbrook. The removal of the SHP dam spillways will


result in lower water surface elevations and increased flow velocities in the river. The Maine Department of Transportation (MDOT)11 has not identified any roads that would be adversely affected by these changes.

There are three State-owned bridges within the area where the water level and velocity will change as a result of Sappi’s proposal to remove spillways at the SHP dam. Project review by MDOT indicates that the Bridge Street Bridge in Westbrook is founded on ledge, therefore the proposed change to water levels and flow velocities will have no impact. The Deguio Bridge in Gorham was replaced in the summer of 2017 and the new abutments were founded outside the channel, therefore the proposed changes in water level and velocity will have no impact. The Little River Bridge in Gorham is founded on timber piles outside the stream banks. MDOT plans to monitor any impact to the old abutments. There is one bridge within the existing SHP area. The island bridge is not a municipally maintained bridge, but is a private bridge at the Project site providing access to the mid-channel island. The bridge, while sized for vehicular traffic, is reportedly only used for foot traffic. Public access to the property, and therefore to the island, is restricted by site fencing and no analysis of risk to the bridge was made. Prior to the start of construction work, the bridge will be repaired and made suitable for heavy equipment. Following the end of the Project, the bridge will be removed. Applicant’s Proposals. Sappi anticipates minimal increase in traffic and has not proposed to conduct pre- and post-construction roadway condition surveys or to undertake any repairs to ensure that project related traffic have not degraded the pre-construction quality of the affected roads. Discussion. Sappi and its consultants plan to make adequate provisions for traffic movement out of or into the project area both during and following project decommissioning and dam removal activities. The Department finds that based on the evidence provided in the record, the applicant has adequately addressed traffic movement.

H. SHP MWDCA APPLICATION – MAINE LAND USE PLANNING COMMISSION

No part of the proposed dam removal or fishway construction activities is located within the jurisdiction of the LUPC. Therefore, consistency with LUPC zoning is not applicable.

I. SHP MWDCA APPLICATION – ENVIRONMENTAL MITIGATION

Review Standard. The MWDCA, 38 M.R.S. § 636(6), provides that the Department shall approve a project when it finds that the applicant has demonstrated that reasonable provisions have been made to realize the environmental benefits of the project, if any, and to mitigate its adverse environmental impacts.

11 Dale Doughty, MDOT personal communication with Department staff.


The Department’s Administrative Regulations for Hydropower Projects, 06-096 C.M.R. ch. 450 (Rule Chapter 450) define mitigation to generally mean any action taken or not taken to avoid, minimize, rectify, reduce, eliminate, or compensate for actual or potential environmental impacts. Rule Chapter 450 ¶ 3(I). Rule Chapter 450 also provides that whether an applicant’s provisions to realize environmental benefits or to mitigate adverse environmental impacts are reasonable depends in part upon the significance of the resource(s) affected. 06-096 C.M.R. ch. 450 5(F). Applicant’s Proposals. The applicant proposes to realize the environmental benefits and to mitigate the adverse environmental impacts of the decommissioning of the SHP and the removal of the eastern and western spillways of the SHP dam, and installation of a double Denil fishway by taking various actions relating to project impacts on soil stability, wetlands, the natural environment, fish resources, wildlife resources, archaeological resources, public access and use of the river, flood control, and water quality, as discussed elsewhere in this Order. The installation of fish passage and removal of spillways at Saccarappa Falls will make the section of the Presumpscot River up to Mallison Falls and all of the tributaries therein accessible to migratory anadromous fish by facilitating passage over Saccarappa Falls. The environmental impacts associated with the proposed project are primarily temporary wetland impacts along the edges of the river. There are two categories of wetland impacts associated with the project: those due to proposed modifications at the Saccarappa Falls site, and those related to lowering of the water level in the river between Saccarappa Falls and Mallison Falls. Impacts Associated with SHP Dam Removal. Potential impacts of removal of the SHP dam include both temporary and permanent impacts. Removal of the eastern spillway, western spillway, and ancillary structures in the forebay channel will result in a large area of new benthic habitat across the Presumpscot River between SHP and Mallison Falls Project that does not exist today. A permanent negative impact relates to filling of the tailrace channel which is hydraulically connected to the river. The proposed fishway will be constructed on fill placed in the tailrace. Temporary impacts include the short-term use of sandbag and cellular cofferdams and wet roads necessary to complete demolition and construction. The cofferdams will be removed following completion of the in-river work. Temporary wet roads that function as cofferdams and provide access to the spillways for demolition will be removed; their impact is short-term and temporary. Existing wet roads which were left in place during previous spillway repairs will be used, and will be removed as the spillways are removed, a permanent improvement to the environment. Impacts Associated with Lowering SHP Impoundment Water Levels. Approximately 0.5 miles of the Presumpscot River below Mallison Falls and 1.5 miles of the Little River will change from impounded flat water to free-flowing riffle and pool habitat. Removal


of the eastern and western spillways at Saccarappa Falls will create approximately 19 acres of exposed embankment that is expected to initially revegetate with grasses and eventually develop a vegetative community similar to current bank conditions. Cofferdam Alternatives Analysis. The Department has found that the use of earthfill cofferdams can result in significant sedimentation into waterways, especially during cofferdam installation and removal. Sedimentation can result in a decline in water quality, damage to aquatic habitat, and injury to fish and other aquatic organisms, and can degrade scenic, aesthetic, and recreational uses and values. The applicant has evaluated the availability, feasibility, and practicality of alternatives to the use of earthfill cofferdams/access roads as part of the proposed dam removal activities. The applicant reports that available alternatives to earthfill cofferdams include sandbag cofferdams, cellular cofferdams, and clean stone fill to construct temporary wet roads to access the construction site. An additional wet road will be constructed of timber cribs (a.k.a. crane mats). Following completion of the removal project, all cofferdams and wet roads will be removed. Discussion. Lowering the water level elevation by spillway removal will result in approximately 19 acres of exposed embankment which may be susceptible to erosion and invasive species colonization. Sappi should take appropriate measures to survey the exposed banks to identify and then to manage invasive species identified until native species are established, and to take appropriate erosion control measures as necessary. The cofferdam alternatives chosen by the applicant reduce the potential impacts from cofferdam placement and removal to the extent practicable. Based on the evidence in the record, the Department finds the applicant has made reasonable provisions to realize the environmental benefits of the proposed decommissioning of the SHP and the removal of the SHP dam spillways, and installation of a double Denil fishway and to mitigate the adverse environmental impacts of these activities, provided that the SHP dam removal is undertaken in accordance with the conditions imposed by this Order.

J. SHP MWDCA APPLICATION – SOIL STABILITY

Existing Shoreline Conditions. Surficial geological deposits in the vicinity of the SHP dam are likely to consist of till, eskers and deltas, and glaciomarine deposits of the Presumpscot Formation. Till in this area is composed of a heterogeneous mixture of clay, silt, sand, pebbles, cobbles, and boulders up to ten feet in diameter. Typically, till forms a blanket deposit directly over bedrock. Shoreline Studies. During the week of May 11, 2015, a detailed engineering survey was completed by Acheron Engineering for the SHP impoundment. Profile and section data (at approximately 800 foot intervals) was collected using GPS sonar survey equipment. Detailed drawings were developed from survey data depicting the plan view, profile, and cross sections, which display the shape and configuration of each section with an indication of the existing and future water surface elevations.


On June 5, 2015, the applicant’s consultant, Acheron Engineering, conducted a detailed visual inspection of the SHP impoundment to evaluate the potential for future embankment instability and/or soil erosion within the river channel following removal of the Project spillways. The inspection consisted of a visual review of the physical characteristics of the embankments and the littoral zone on each side of the river and within each of the previously identified sections. Data on the condition of the existing embankment, exposed soil or bedrock surface of each embankment, vegetative cover, evidence of existing erosion, and an evaluation of the potential for future erosion was collected.

Sediment Characterization. The applicant stated that in general, the underlying soils in the area from the Little River downstream to the Project site are very fine grained silts and clays that are very compact, very stable, and are generally not susceptible to erosion now or in the future. Exposed bedrock is very limited. Existing vegetation varies from emergent wetland varieties to small brush and large oak and maple. The combination of underlying soils and root structure associated with the existing vegetation has minimized erosion of the shoreline and embankments. There is no evidence of sediment deposits within the river channel caused by deposition of eroded soil from upstream and no evidence of accumulated sediments that will become re-suspended. When the water level is lowered by six feet, vegetation is expected to migrate downslope toward the new water surface and will stabilize the newly exposed embankment.

The underlying soils in the area from the Little River upstream to the tailwaters of the Mallison Falls are sandier and therefore more susceptible to erosion. The embankments are stable but the stability is derived more from root structure of the embankment vegetation than from the character of the underlying soils. There is some evidence of erosion within the root structure of large trees in some areas, high up on the banks. When the water level is lowered by six feet existing vegetation is expected to migrate downslope toward the new water surface. The rate of vegetation colonization in this area may be slower than in areas south of the Little River, due to the lower fertility of the sandier soils. Eventually bushes and trees are expected to become established, which will enhance long-term soil stability. There are some spotty deposits of unconsolidated fine sands, caused by deposition of eroded soils from upstream. These fine-grained sediments may become re-suspended during high flow events after the water levels are lowered. The upper part of this river section contains large rocks and boulders at the river bottom which will be exposed during low flow periods. The entire length of the Little River that is currently riverine impoundment will revert to being a free-flowing river segment. Visual observations indicate that the lower 1.4 mile segment has a fine-grained substrate of sands, silts, and clays. Moving upstream, soil becomes more coarse-grained with a larger proportion of rocks and cobble. The bed of the river has a large proportion of boulders and large cobble interspersed with fine-grained sand and cobble. Some of the finer-grained deposits will be scoured during high flow events once the water depth decreases. Sedimentation. Small, isolated pockets of soft sediment were found to exist immediately upstream of the spillways, typically in pockets between exposed bedrock. When the


spillways are removed the velocity of water flow over the exposed bedrock will increase significantly, potentially re-suspending the soft material to be re-deposited downstream. The volume of material susceptible to re-suspension under high flow conditions is believed to be small, and not expected to have a noticeable impact downstream of the project site. In addition, there is an area of gravel that was placed in the river as a wet road when the dam was built or repaired. The existing wet road will be used and then removed during removal of the eastern spillway, so the gravel will not be subject to erosion and downstream sedimentation after the dam is removed. Applicant’s Proposals. To address the potential adverse impact of the proposed activities on soil stability, including the potential for erosion and sedimentation during dam removal activities, the applicant proposes to employ standard soil erosion and sedimentation control measures, and to conduct a phased drawdown of the impoundment. Typical standard erosion control measures include the use of clean stone fill material in all new access roads; the use of sediment filter fences, erosion control blankets, and hay bale barriers in disturbed land areas; and debris booms in the water below the work area. The drawdown of the impoundment is proposed to occur in two phases. In the first phase, the initial drawdown of the impoundment will be accomplished by opening the head gates and the waste gate in the forebay area to allow the flow of the river to pass down the western channel. During this period the release of flow at the Eel Weir Project should be at or near the regulatory minimum, to allow use of the powerhouse head gates to regulate the flow in the western channel to reduce the water level in the section of river upstream of the two spillways, between the SHP and Mallison Falls (including the tributaries to this section of the river). The water level in the river impoundment should be reduced to or slightly below elevation 64.0 feet to eliminate flow in the eastern channel. In the second phase, occurring when removal of the eastern spillway is completed, the head gates will be closed at the powerhouse to stop flow in the western channel and specified fill will be placed in the western channel to create a cofferdam that will divert river flow from the western channel into the eastern channel. Once the river flow has been diverted, removal of the remaining eastern channel spillway and all other project related work will continue from the western channel. Discussion. SHP decommissioning and dam removal activities, including ground disturbance, the installation and removal of access road/cofferdam fill, and the removal and disposal of demolition debris and other construction spoils, have the potential to result in significant erosion and sedimentation that may adversely affect water quality and fish and wildlife habitat and populations. SHP decommissioning and dam removal activities as proposed should not result in any significant, long-term harm to soil stability provided that: (1) a final erosion and sedimentation control plan for all SHP activities, including plans to secure the site for over-wintering between construction seasons as necessary, is prepared and implemented by the applicant, subject to review and approval by the Department; (2) all access road/cofferdam fill material meets established standards for cofferdams and is removed following completion of SHP activities; and (3) all demolition debris and other construction spoils are reused, recycled, or otherwise disposed of in accordance with established regulations.


The exposure of previously inundated soils and stream banks following the SHP dam

removal has the potential to result in significant erosion and sedimentation and in the proliferation of invasive plants that may adversely affect water quality and fish and wildlife habitat and populations, and may adversely affect the functioning of existing drainage swales, culverts, and stormwater and wastewater outfalls. The exposure of previously inundated soils and stream banks following completion of the SHP, as proposed, should not result in significant harm to soil stability provided that: (1) the applicant takes appropriate measures to monitor the shoreline following the dam removal activities and to implement bank stabilization measures, invasive species monitoring, and landscape restoration, as needed, and (2) be prepared to monitor and protect and/or extend upstream drainage and outfall structures as needed.

The movement of sediments following dam removal has the potential to adversely affect

fish and wildlife populations. The evidence in the record indicates that the majority of the sediments present in the impoundment area are fine-grained materials. The applicant indicates that these fine sediment deposits are stable and not likely to be mobilized following the removal of the dam or to eroded from shoreline areas prior to stabilization. Therefore, the Department finds the movement of impoundment sediments following the SHP activities as proposed should not result in any long-term harm to fish and wildlife populations provided that the applicant takes appropriate measures to monitor and address sediment mobilization using standard sediment control measures as needed, and implements the measures described above.

K. SHP MWDCA APPLICATION – WETLANDS

Existing Wetlands. In 1997, the applicant completed a vegetative cover type mapping study of the impoundment area. The study included the area along the banks of the Presumpscot River. In 2015, Mark Hampton Associates, Inc. conducted a similar shoreline survey of the Little River from its mouth at the Presumpscot to a point 1.5 miles upstream to the Route 202/4 bridge in Gorham. The survey identified palustrine forested wetlands and palustrine scrub-shrub wetlands along this section of the Little River. The palustrine scrub/shrub wetlands are located near the mouth of the Little River where it joins the Presumpscot River. Wetlands found in the impoundment are either hydrologically associated with or adjacent to the impoundment. Effect of Surrender Project on Existing Wetlands. Analysis by Mark Hampton Associates, Inc. indicates that the wetlands associated with the SHP impoundment are associated with riverine conditions and existed prior to installation of the SHP dam. The report contends that as the water level in the impoundment is lowered the wetlands will migrate with the lower water levels. Wetlands associated with swales, streams or brooks do not rely on the impoundments as their water source and so there will be no net loss of wetlands as a result of lowering the impoundment by six feet, and wetland area may increase at points where surface water tributaries empty into the impoundment. Following the dam removal activities, the newly exposed shoreline will be at risk of colonization by invasive plant species. The applicant shall monitor for invasive plant


species for a period of one vegetative growing season following completion of dam removal activities. Effect of Surrender Project on Wetland Creation. The applicant indicates that removal of the SHP dam is expected to expose a large area of benthic habitat across the entire river that does not exist today, which will result in the conversion of existing impounded, open water habitat to riverine emergent habitat and may increase the area of shallow aquatic vegetated wetlands along the new shoreline. Discussion. Based on the evidence in the record, the decommissioning of the SHP and the removal of the SHP dam, as proposed, may result in the movement or expansion of some wetlands with the lowered impoundment, but should not result in any significant harm to existing wetlands, and may result in a benefit through the creation of new wetlands along the new shoreline. The Department finds the applicant has adequately addressed issues related to wetlands, provided that the applicant monitors newly exposed shoreline for invasive plant species colonization for a period of one vegetative growing season following completion of dam removal activities.

L. SHP MWDCA APPLICATION – NATURAL ENVIRONMENT

The decommissioning of the SHP and the removal of the SHP dam spillways and installation of a double Denil fishway and the reshaping of the western and eastern channels, as proposed, is expected to restore natural riverine habitat and hydrology, floodplain wetlands, and fish passage to the segment of the Presumpscot River and Little River currently occupied by the dam and its impoundment. The Department finds no significant harm to the natural environment is expected as a result of dam removal activities, provided that the applicant monitors for invasive plant species as described in Section K above.

M. SHP MWDCA APPLICATION – FISH RESOURCES

Existing Fishery Habitat and Resources. The lower Presumpscot River supports a natural, self-sustaining warmwater fishery containing brown trout, smallmouth bass, chain pickerel, and yellow perch, with American eel, golden shiner, pumpkinseed, fall fish, brown bullhead, white sucker and minnows also present in the impoundment. Two warmwater gamefish in the lower Presumpscot River, pickerel and smallmouth bass, are not native species but were introduced to the river system in 1819 and 1869, respectively. Smallmouth bass is the most abundant gamefish, and this species inhabits a wide range of habitat including riverine reaches and impoundments. Pickerel live in the backwater areas, where velocities are low and there is submerged aquatic vegetation. Other warmwater species in the lower Presumpscot River below the dam include largemouth bass, blacknose dace, and common shiner.

The Presumpscot River historically supported and currently supports anadromous species (alewife, American shad and blueback herring). The lower Presumpscot River has been open to anadromous species since 1990. Fish passage to the SHP may vary with river


flows and tidal conditions at the site of the former Smelt Hill dam (removed in 2002) and river flows at the fishway at Cumberland Mills dam.

The catadromous American eel are relatively abundant in the Presumpscot River in the vicinity of the project and upstream eel passage is provided at the project on both the eastern and western spillways. Downstream eel passage is provided by nighttime station shutdowns in September and October.

Existing Fisheries Management Plans. In December 2001, MDMR, ASC and MDIFW issued a report of management goals, objectives and strategies for fishery management in the Presumpscot River. Management goals for the river from the SHP dam to Mallison Falls dam include: (1) Managing the migratory pathway for American eel, American shad, Atlantic salmon (smolts and adults), blueback herring, possibly striped bass, sea-run brook trout and sea-run brown trout; (2) Managing the river reach for sustained production of resident and diadromous species consistent with habitat capabilities; (3) Managing species in accordance with the Atlantic States Marine Fisheries Commission’s Interstate Fisheries Management Plans for Striped Bass, for American shad and river herring, and for American eel; (4) Promoting commercial fisheries for American eel; (5) Promoting recreational angling for American shad, adult landlocked Atlantic salmon, smallmouth bass, largemouth bass, chain pickerel, yellow perch, white perch, brown bullheads, black crappie, and possibly striped bass, sea-run brook trout, and sea-run brown trout; (6) Establishing a year-round fishery for stocked trout in the Mallison Falls tailrace, or in the event of dam removal, any suitable free flowing reaches; (7) Managing the Little River for diadromous species and wild trout and enhance recreational trout angling opportunities; and (8) Managing Colley-Wright Brook for diadromous species and wild brook trout and brown trout.

Effect of Surrender Project on Fishery Habitat and Resources. Sappi states that decommissioning the SHP, removing the spillways, sculpting the eastern and western channels into nature-like fish passages, and installing a double Denil fishway is compatible with and supportive of the management goals, objectives, and strategies for fishery management set forth in the agency management plan.

The proposed SHP fish passage design will make the five-mile section of the Presumpscot River up to Mallison Falls and all of its tributaries accessible to migratory anadromous fish. The effects of removing the SHP spillways and installing the double Denil fishway and resculpting of the eastern and western channels will increase the production potential of the target species of interest. American shad production in the newly accessible river reaches is estimated at 98.9 per acre in the 69 acres of newly accessible habitat in the Presumpscot River and in the 39 acres of newly accessible habitat in the Little River; blueback herring production is estimated at 600 fish per acre in the 69 acres of newly accessible habitat in the Presumpscot River and in the 39 acres of newly accessible habitat in the Little River12,13.

12 Gail Wippelhauser, PhD, personal communication with Department staff. 13 FERC Final Environmental Impact Statement June 2002 pp 107, 132 and 136.


With respect to resident fisheries, the removal of the SHP dam will change the current impounded river habitat to a riverine habitat with a riffle, run, and pool environment. This change will generally result in decreased habitat suitability for warmwater species, such as smallmouth bass and pickerel, while also resulting in increased habitat suitability for coldwater fish, such as brook trout and landlocked salmon. Overall fish abundance and diversity are expected to increase following SHP dam removal.

With respect to river ecology, removal of the SHP dam spillways, installation of the

proposed double Denil fishway and sculpting of the eastern and western channels is expected to result in a restored abundance of river herring (American shad, alewife and blueback herring) to serve as prey for predatory fish, as prey buffers for fish such as Atlantic salmon smolts, and as food for fish-eating birds and mammals. The project is expected to eventually renew the historical nutrient exchange between the riverine and marine environments.

Applicant’s Proposals. To address the potential adverse impacts of dam removal on fish habitat and resources, the applicant proposes to employ standard erosion and sedimentation control measures; conduct a phased drawdown of the impoundment; maintain a zone of passage during dam removal activities; plan the timing of construction activities in consultation with appropriate agencies; reshape the eastern and western channels following dam removal; and conduct a post-removal fish passage evaluation.

Discussion. Based on the evidence in the record, the decommissioning of the SHP, removal of the SHP dam spillways, and installation of a double Denil fishway, and the reshaping of the eastern and western channels, as proposed, should not result in any significant harm to existing resident fish resources. Further, the removal of the dam spillways and construction of fish passage facilities, as proposed, should result in a significant long-term benefit to diadromous fish resources through improved habitat value and accessibility. Installation of the fish passage facility and removal of the spillways should result in improved passage efficiency and improved water quality and enhanced river ecology, provided that the applicant takes appropriate measures to monitor fish passage following installation of the double Denil fishway, as proposed, and to take remedial actions, as needed, to ensure adequate passage to the affected river reach and its tributaries.

SHP decommissioning, spillway removal activities, double Denil fishway installation,

and reshaping the eastern and western channels, including in-stream construction activities, the drawdown of the impoundment, and reduced water levels following dam removal, have the potential to result in short-term harm to fish resources through erosion and sedimentation. The Department finds the SHP decommissioning dam removal activities, and fish passage facility construction as proposed, should not result in any significant short-term harm to fish resources provided that: (1) a final erosion and sedimentation control plan for all dam removal activities is prepared and implemented by the applicant, subject to Department review and approval; (2) a phased drawdown of the impoundment is conducted; and (3) a plan to coordinate the timing of project decommissioning and dam removal and fishway construction activities to minimize the


impact on resident and anadromous fish is developed and implemented by the applicant in coordination with MDMR and MDIFW, subject to Department review and approval14.

N. SHP MWDCA APPLICATION – WILDLIFE RESOURCES

Existing Wildlife Habitat and Resources. The shoreline of the existing SHP impoundment is comprised of a mixture of hardwood forests, coniferous forests, fields, forested wetlands, scrub/shrub wetlands, emergent wetlands, and unconsolidated bottoms. These habitats potentially support various species of reptiles and amphibians, freshwater mollusks, song birds and waterfowl, aquatic and semi-aquatic mammals, woodland rodents, and transient large-game mammals, including white-tailed deer and moose.

The New England cottontail rabbit, northern long-eared bat and upland sandpiper may occur in the vicinity of the project area. Each of these species is listed or a candidate for listing as a state or federal threatened or endangered species. In addition, American eel are present in the project area, and are a state species of special concern. The New England cottontail rabbit occupies predominantly native shrub lands, wetlands and young forests. Upland sandpipers breed in large grasslands and occasionally in bogs and open peat lands; MDIFW commented that ground disturbance within and adjacent to sandpiper nesting habitat should be limited, and not occur between May 1 and July 31. There are no known sandpiper nests in the project area, and no construction is proposed upstream of the immediate vicinity of the SHP site, so no ground disturbance is proposed that would affect upland sandpiper habitat between May 1 and July 31. The only upland sandpiper habitats that may be affected by the proposed project are wetlands located adjacent to the SHP impoundment. Riverine wetlands located adjacent to the SHP impoundment will be affected by the proposed permanent six-foot drawdown; however those impacts are expected to be short term as the wetlands are expected to migrate as the new shoreline develops. The northern long-eared bat hibernates in winter in caves and mines and roosts under bark and in cavities and crevices of live and dead trees in summer; the northern long-eared bat feeds primarily in forested areas. It is expected that as the water level drops the exposed area adjacent to the river will become vegetated, potentially increasing the bat’s feeding grounds. Sappi consulted with USFWS, as part of Section 7 Endangered Species Act (ESA) consultation, which determined that the project as proposed will not negatively impact northern long-eared bat habitat.

Effect of the Surrender Project on Wildlife Habitat and Resources. The removal of the SHP dam will change the existing river impoundment environment to a free-flowing riverine environment, which will create new habitat for some wildlife species while reducing habitat for others. Riverine wetlands will migrate with the change in water level, and are not expected to have a detrimental impact on existing cottontail rabbit habitat. Overall impacts on species diversity and populations are expected to be minor and short-term given that water levels will change little in this area. Dam removal will reduce available habitat for freshwater mussels that are present and may result in

14 Review and approval by the Department is achieved through application for a condition compliance permit.


stranding of individual mussels during the drawdown of the impoundment. Consultation with MDIFW confirmed that there are no state listed threatened or endangered species of freshwater mussels within the project area.

Discussion. Based on the evidence in the record, the decommissioning of the SHP, removal of the SHP dam spillways, and construction of a double Denil fishway, and reshaping of the eastern and western channels, as proposed, should not result in any long-term or significant harm to wildlife resources. The Department finds the applicant has adequately provided for wildlife resources.

O. SHP MWDCA APPLICATION – HISTORIC AND CULTURAL RESOURCES

Historic Resources. One culturally significant site was identified within the project area as being a candidate for listing on the National Register of Historic Places. Two historically significant sites were identified as necessitating remediation for erosion. The existing foundations of the historic Littler River Aqueduct were also identified. The Cumberland and Oxford Canal, listed on the National Register of Historic Places, extends along the western shore of the Presumpscot River from Sebago Lake to the Portland waterfront and so is partly located within the project boundary on the west side of the SHP (Sections 9 and 15 of the canal occur within the project boundary). Sappi developed a Historic Properties and Management Plan (HPMP) for the protection of Sections 9 and 15 of the Cumberland and Oxford Canal from the effects of erosion and undercutting. The canal crossed the Little River on a constructed aqueduct, which remaining foundation is in poor to moderate condition. The HPMP also requires that Sappi maintain and operate the SHP as an historic property, and requires the Maine State Historic Preservation Office (SHPO) be notified prior to any proposal that could adversely affect the SHP, including the removal of the eastern spillway and other activities related to closing the hydroelectric facilities. Further, the HPMP indicates that FERC will consult with SHPO, the Penobscot Indian Nation, the Advisory Council on Historic Preservation, and Sappi to identify alternatives to adversely affecting Historic Properties upon authorization to decommission and remove the project.

Cultural Resources. There is one documented pre-historic archaeological site (Site 8.20) within the SHP area. Phase I and Phase II archaeological surveys have been conducted at the site and determined that the site is significant and eligible for listing on the National Register of Historic Places. The cultural material has not eroded to a point of emergency and was inspected annually from 2011 through 2014, and then biannually thereafter, with the next scheduled assessment occurring in 2018.

Discussion. Sappi has determined that the historic use of the SHP site has limited the ability of anadromous fish to migrate within the Presumpscot River. Sappi proposes to return the section of the river between the SHP and Mallison Falls, and all tributaries within this section, to a natural state. The existing powerhouse will be decommissioned and removed. Sappi will ensure that a written and photographic history is preserved, per a June 13, 2017 Cultural Resources Review and Assessment Report the Applicant provided to SHPO. SHP decommissioning and dam removal activities, including


construction activities and the lowering of impoundment levels, may affect historic and archaeological resources. Impoundment drawdown will benefit the historic aqueduct foundation and the portion of the Cumberland and Oxford Canal that are within the project boundary, lessening the impact of erosion due to water flows, flooding and ice. The Department finds that based on the evidence in the record, the decommissioning of the SHP, removal of the SHP dam spillways, and installation of the double Denil fishway, and reshaping of the eastern and western channels as proposed, should not result in any significant harm to historic or archaeological resources. The Department finds the applicant has adequately accounted for and meets this criterion.

P. SHP MWDCA APPLICATION – PUBLIC RIGHTS OF ACCESS AND USE OF

SURFACE WATERS

Existing Public Use and Access. The applicant states that within 60 miles of the SHP, there are approximately 123 formal recreational access sites for a variety of uses, including: hiking, camping, open-water fishing, and swimming. In the immediate vicinity of the SHP, there are three ramp and float facilities operated by the City of Westbrook. These occur between the SHP dam and the Cumberland Mills project and are intended to increase recreational access to the Presumpscot River. Upstream from the Project, within the SHP impoundment, there are three existing hand-carry boat launch areas. One is owned by the applicant, located approximately 130 feet north of the forebay, one by the City of Westbrook, located approximately 1,000 feet north of the eastern channel spillway, and one located on the Little River, is owned by the Presumpscot Regional Land Trust. Additionally, Sappi identified seven privately-owned docks, five of which appear to be seasonal, as well as an existing set of steps to access the river. The Rivermeadow Golf Club operates two intake pipes, connected to a single pump, in the Project impoundment, for the purpose of irrigation.

Effect of Surrender Project on Existing Public Use and Access. The proposed surrender project will impact the upstream boat launches. The reconfiguration of the eastern and western channels will render the flow velocity too high to safely launch a canoe or kayak at the Sappi-owned launch area. The proposed drawdown will result in the creation of a gap between the existing boat launch end and the new water level at the Westbrook-owned launch area. The hand-carry launch on the Little River will be rendered unsuitable for the launching boats because the water will not be deep enough except for at high-flow conditions.

Applicant’s Proposals. Sappi is proposing to modify the Westbrook-owned boat launch to allow for continued public access following the Project completion. The applicant is proposing to install a 12-foot wide by 16-foot long crushed-stone path leading from the existing edge of the boat launch to the new water line. The boat launch extension will be completed during low-flow conditions, following State of Maine Erosion and Sedimentation Best Management Practices, including utilizing clean stone, to minimize siltation to the river.


The private docks are not expected to be greatly impacted. In most cases, the docks either need to be reconfigured or extended, the cost of which is expected to be minimal. Following the drawdown, the steps will no longer reach to the water, however, bathymetry data suggests that the exposed ground is flat and easily traversable. The applicant further stated that if needed, the steps will be extended. In its application, Sappi states that the impact to the golf course intake pipes will be minimal. In a May 2015 conversation between the applicant and the golf course, the golf course maintenance supervisor stated that there are two existing intake pipes in the river, one at a shallow four to five-foot depth, and one deeper at 10 to 11 feet deep. Following the drawdown, the maintenance supervisor indicated that he would utilize the deeper intake pipe. There is an existing culvert upstream of the SHP that discharges into the Presumpscot River. Sappi states that the riprap around the culvert discharging into the Project impoundment may have to be extended following the drawdown.

Discussion. Based on the evidence in the record, the decommissioning of the SHP and removal of the SHP dam spillways, as proposed, should result in limited loss to existing public recreational access and use provided that appropriate measures are taken, as needed, to modify and maintain remaining public boat access sites. The Little River boat launch will no longer be deep enough to launch boats except under unusually high water conditions; however, it will continue to provide parking and foot trail access to the Little River for anglers.

The Department finds the SHP overall, including the installation of fish passage measures as proposed, should result in a benefit to public recreational access and use, as fishing opportunities should increase, and there is minimal diminishment of boating within the project area, due to the improvements at the Westbrook-owned boat launch. The Department finds the applicant has adequately accounted for and meets this criterion.

Q. SHP MWDCA APPLICATION – FLOOD CONTROL BENEFITS/HAZARDS

Existing Flood Levels. The existing SHP license does not include provisions to regulate or control flood-flow rates downstream of the project site or water levels upstream of the dam for flood protection. The SHP is operated in run-of-river mode. The surrender of the SHP will lower the water level in the river by approximately six feet under average flow conditions, and thus reducing the water levels in the river between the SHP and Mallison Falls during flood-flow conditions.

Effect of the Project on Flood Levels. After the spillways are removed, the water level will be dependent on water flow in the river. At a flow of 1,000 cfs, the section of river upstream of the SHP will be approximately six feet lower than the spillway elevation of 69.95 feet, down to approximately 64.0 feet. The applicant shall provide technical engineering data to the Federal Emergency Management Agency (FEMA) regarding changes in flood flow elevations within six months of the removal of the spillways and reshaping of the eastern and western channels.


Discussion. Based on information provided in the record, the SHP will not result in any changes to flood flows or flood levels downstream of the SHP site, because the existing hydroelectric facility is operated as run-of-river. Water flow above the SHP dam is controlled via the Sappi-owned Eel Weir project, located at the outlet of Sebago Lake. The Department finds the activities at the SHP as proposed will not create new flood hazards or exacerbate existing conditions, provided the applicant submit technical engineering data to FEMA as described above. The Department finds the applicant has adequately accounted for and meets this criterion.

R. SHP MWDCA APPLICATION – HYDROELECTRIC ENERGY BENEFITS

Existing Generation. The existing SHP consists of three turbines, with a combined generating capacity of 1.35 megawatts. Annually, the SHP can generate 7,600 MWh. In 2003, FERC issued to Sappi a 40-year operating license for the SHP. Contained in this License is a prescription for fish passage within two years of the construction of fish passage facilities at the downstream non-FERC-jurisdictional Cumberland Mills dam. In May 2013, fish passage became operational at Cumberland Mills, triggering the fish passage requirement for the SHP. Sappi determined that the cost of constructing fish passage at the SHP as prescribed in the existing FERC license was not economically practical. For this reason, Sappi proposes to surrender its FERC license for the SHP. Applicant’s Proposal. Sappi states that the decommissioning of the SHP facility will not necessitate an increase in generating capacity at other company-owned facilities. Sappi operates six additional hydroelectric facilities, as well as multi-fuel power generating boiler located at the Westbrook Mill. The energy generated at SHP is sold to the grid, as the other facilities generate energy in excess of what is required to power the Westbrook Mill.

Discussion. The Department finds the SHP as proposed will not have hydroelectric energy generation benefits or harms.

S. SHP MWDCA APPLICATION – ENVIRONMENTAL/ENERGY BALANCING

Section 636(7) of the MWDCA, 38 M.R.S. § 636(7), provides that the Department shall approve a project when it finds that the applicant has demonstrated that, among other things, the advantages of the project are greater than the direct and cumulative adverse impacts over the life of the project based upon specified environmental and energy considerations. The Department’s Rule Chapter 450(5)(G) provides that this “balancing” criterion is satisfied if, in the Department’s judgment, the applicant has demonstrated that the advantages of the project are greater than the direct and cumulative impacts over the life of the project based on the specified environmental and energy considerations. Rule Chapter 450(5)(G) further provides that determining whether the advantages of a project are greater than its adverse impacts involves the Department’s evaluation of the nature and magnitude of the project’s various impacts.


Based on the evidence in the record, the decommissioning of the SHP and the removal of the SHP dam spillways, as conditioned by this Order, will not result in significant benefit or harm to soil stability, resident fish resources, wildlife resources, public recreational access and use, historic resources, or archaeological resources. Based on the evidence in the record, the decommissioning of the SHP, removal of the SHP dam spillways, and the installation of a double Denil fishway, as conditioned by this Order, will result in significant benefit to wetlands, the natural environment, diadromous fish resources, and water quality. Based on the evidence in the record, the decommissioning of the SHP and the removal of the SHP dam spillways, as proposed, will result in hydroelectric energy losses, however the energy is not needed to operate the Sappi mill and so the loss does not need to be replaced by increasing generation at another Sappi facility. Thus, the proposed project will not result in significant benefit or harm to hydroelectric power generation.

After consideration of the benefits and harms of the project, as discussed above, the Department finds that the advantages of the project are greater than the direct and cumulative adverse impacts over the life of the project. Specifically, the advantages of the removal of the SHP dam spillways, the construction of a double Denil fishway and reshaping of the eastern and western channels to the restoration of diadromous fish, including Atlantic salmon, American shad, alewife, American eel, blueback herring, sea-run brown trout and sea-run brook trout to the Presumpscot River watershed outweigh the adverse impacts of SHP decommissioning on hydroelectric energy generation, loss of two public boat launch sites, and the short-term impacts of demolition and construction activities necessary to complete the project.

T. SHP MWDCA APPLICATION – REVIEW PROCESS AND COMMENTS

38 M.R.S. § 634(4) of the MWDCA, 38 M.R.S. § 634(4), requires that a person intending to file an application for a permit to remove an existing dam must attend a pre-application meeting with the Department prior to filing the application and conduct a public informational meeting. Sappi attended a pre-application meeting with the Department on March 6, 2018, and hosted a public information meeting on March 22, 2018, held at Westbrook High School. Sappi’s application for a MWDCA permit and WQC for the surrender of the SHP was submitted to the Department on March 28, 2018, and accepted as complete for processing by the Department on April 5, 2018. Following the acceptance of the applications to amend the WQC for the four upstream dams and the consolidation of the MWDCA application with the WQC amendments on May 9, 2018, the 20-day deadline to request public hearings or request for the Board to assume jurisdiction was reset. No requests for a public hearing on any of the applications and no requests that the Board of Environmental Protection assume jurisdiction over any of the applications were received prior to the May 29, 2018 deadline for receipt of such requests.


On May 11, 2018, FERC issued a public notice that the applications for surrender of the SHP and amendments to the licenses for the Mallison, Little Falls, Gambo and Dundee Projects had been accepted for filing. The notice established a 30-day deadline for the filing of any comments, protests, or motions to intervene with respect to the applications. All comments, protests, and motions to intervene filed with FERC on the applications have been added to the Department’s file and duly considered in the review process.

The SHP dam removal, construction of the double Denil fishway, and reshaping of the eastern and western channels as proposed is broadly viewed as positive by the NGOs and governmental agencies. All agency and NGO comments were reviewed, considered, and included in pertinent sections of the Order.

U. SHP APPLICATION – WATER QUALITY AND WQC

As mentioned above, the proposed activities at the SHP may result in a discharge under Section 401 of the Clean Water Act, and under Section 635-B of the MWDCA, a WQC is also required for Department approval of an MWDCA permit application. Such a WQC may be issued if there is a reasonable assurance that the SHP, subject to conditions imposed by the Department, will not violate applicable state water quality standards, including the provisions of the State’s antidegradation policy, as required for WQC under Section 401 of the Clean Water Act.

Classification. The standards for water quality classifications are detailed in Section 4 of this Order. Designated Uses. Class B and Class C waters must be of such quality that they are suitable for the designated uses of drinking water after treatment, recreation in and on the water, fishing, agriculture, industrial process and cooling water supply, hydroelectric power generation, navigation, and as habitat for fish and other aquatic life. 38 M.R.S. § 465(3)(A), 38 M.R.S. § 465(4)(A). Following completion of the dam removal, constructing the double Denil fishway, and reshaping the eastern and western channels subject to the conditions of this Order, the waters of the Presumpscot River will remain suitable for all designated uses.

Antidegradation. The State’s antidegradation policy provides that existing in-stream water uses and the level of water quality necessary to protect those existing uses must be maintained and protected, and that existing in-stream uses are those uses which have actually occurred on or after November 28, 1975, in or on a water body whether or not the uses are included in the standards for classification of the particular water body. 38 M.R.S.A. § 464(4)(F).

The existing in-stream uses of the Presumpscot River and the water quality necessary to

protect these existing uses are expected to be maintained and protected following the decommissioning of the SHP, removal of the SHP dam spillways, installation of the double Denil fishway, and the sculpting of the eastern and western channels, as conditioned by this Order. Indeed, the Maine Supreme Court has affirmed a similar


Order involving a dam removal scenario in furtherance of the Legislature’s policy goals under Maine’s water classification system. See Save our Sebasticook, Inc. v. Board of Environmental Protection, 2007 ME 102, ¶¶ 30-35, 928 A.2d 736.

Dissolved Oxygen. Water quality monitoring conducted by the Department in July and August 2010 indicates that the SHP impoundment meets Class B dissolved oxygen standards on average, but showed four instances of dissolved oxygen below Class B standards during critical summer low-flow, high-temperature conditions.

Removal of the SHP dam spillways and installation of the fish passage facilities is

expected to result in a decrease in water temperatures and an increase in dissolved oxygen levels during critical summer low-flow, high-temperature conditions.

Aquatic Life. Data available from benthic macroinvertebrate monitoring in 1997 indicates that the benthic macroinvertebrate community in the project impoundment currently meets Class B aquatic life standards. The SHP impoundment is relatively uniform and has poor habitat diversity.

Removal of the SHP dam is expected to result in an increase in the abundance and

diversity of aquatic macroinvertebrates in the river upstream from the dam as a result of increased dissolved oxygen and decreased temperature of the water.

“Fresh” concrete can be toxic to aquatic life unless properly cured prior to coming into

contact with surface water. Installation of a double Denil fishway requires concrete work which may have a detrimental impact on water quality. Use of cofferdams to install fresh concrete in the dry and releasing flows over the cured concrete equal to or exceeding 15 gallons per square foot can mitigate the toxicity and allow the project to meet the water quality criteria of pH less than 8.5.

Discussion. The proposed SHP is likely to cause some sediment transport and so may have short-term impacts on habitat. However, the expected increase in dissolved oxygen and flow and decreased temperature associated with the increased flow through the impoundment is likely to result in long-term improvement to the resource. The Department finds that, based on the evidence in the record, the decommissioning of the SHP, removal of the SHP dam spillways, installation of a double Denil fishway, and the sculpting of the eastern and western channels, as proposed and conditioned by this Order, will improve existing water quality in the affected reach of the Presumpscot River in furtherance of the goals of Maine’s water classification system and the Clean Water Act, and will not violate any water quality standards or provisions of Maine’s antidegradation policy. Thus, there is a reasonable assurance the SHP dam removal project, as proposed, will not violate applicable State water quality standards, and will meet all criteria, including the requirements of 38 M.R.S.A. §§ 464(4)(F) and 636(8).


8. PROJECT APPLICATIONS FOR WQC AMENDMENTS

A. Sappi’s Requested WQC Amendment Extending the Upstream Fish Passage Deadline at

the SHP. In its consolidated application for removal of the SHP dam and installation of fish passage measures at that site, the applicant requested a two-year extension of time to complete the proposed construction activities outlined in its MWDCA application including demolition of the east channel and west channel spillways and the installation of the proposed two-channel fish passage facility as designed. Special Condition #5A of Department Order #L-19717-33-E-N, dated April 30, 2003, approved the continued operation of the SHP with conditions which required, in pertinent part, the applicant to install and operate upstream fish passage facilities at the Project, comprised of a Denil “fishway” or other passage facility of comparable efficiency in passing target species, designed to pass at least 18,000 American Shad, 109,000 blueback herring, and 273 Atlantic salmon annually. The fish passage facility was required to include a counting, trapping and sorting facility and was to be operational no later than two years after passage was available at the downstream Cumberland Mills dam. Upstream fish passage became available at the Cumberland Mills dam on May 1, 2013. Special Condition #5A was subsequently modified on June 14, 2014 (#L-19717-33-G-M) and on May 25, 2016 (#L-19717-33-I-M) to extend the fish passage deadline. In Department Order #L-19717-33-K-M, dated December 27, 2016, the Department approved the further extension of the deadline for operational fish passage at the SHP to no later than six years after passage is available at the downstream Cumberland Mills dam (i.e. May 1, 2019). The current proposal to extend the WQC deadline for an additional two years to May 1 2021 allows for implementation of plans for SHP decommissioning, removal of the eastern and western spillways, and for compliance with Special Condition #5A of Department Order #L-19717-33-E-N (as amended in #L-19717-33-G-M, #L-19717-33-I-M, and #L-19717-33-K-M) in accordance with the plans and designs for the Project. Such plans and design elements and the terms for their implementation are provided in the Settlement Agreement, dated November 15, 2016, and as amended March 7, 2018. The authority to act on WQC is delegated by the United States Environmental Protection Agency (EPA) to the State of Maine, and by the Governor of the State of Maine to the Department. See Section 5 (Department Jurisdiction) above. The request to extend the existing WQC deadline for upstream fish passage at the SHP is fully supported by MDMR, USFWS, CLF, and FOPR. The requested extension is also a component of and supported by the Settlement Agreement. The Department finds that the dam removal and construction activities proposed for the SHP as set forth in Sappi’s MWDCA application and the Settlement Agreement, and as approved in this Order, necessitate the requested extension. The Department also finds that the requested extension will not impact water quality or violate any water quality standards, and will


not impact water classification at the SHP, for all the reasons discussed elsewhere in this Order with respect to the SHP application. The Department further finds that this change in the deadline is a minor change and will not significantly affect the SHP. The proposal to extend the WQC deadline for an additional two years to May 1, 2021, is also consistent with prior extensions requested and granted in order to allow for negotiation of an improved fish passage facility design and dam decommissioning and removal plan that provides the greatest potential effectiveness for passing the target species at the SHP site, and that has resulted in Sappi’s application for the SHP and other Presumpscot River Hydro Projects.

B. Descriptions of the Presumpscot River Hydro Project and Sappi’s Requested WQC Amendments for the Upstream Projects.

The five Presumpscot River Hydroelectric Projects were constructed in the early 1900’s at the locations of natural falls along the river, some of which have been dammed for as much as 250 years. The five dams were licensed individually until 1996, when at the request of Sappi all the licenses were modified to expire concurrently. The Department and then FERC undertook a coordinated review of the projects at their then concurrent relicensing. On January 14, 1999, Sappi applied to the Department for WQC for the five dams, withdrawing and refiling its applications in 2000, 2001, and in January and December of 2002. On April 30, 2003 the Department issued a final, consolidated WQC for the five projects, with seven conditions to ensure that their operation continued to meet Maine’s water quality standards. Conditions included: run-of-river operations and minimum bypass flows at all five projects; restrictions on impoundment drawdowns during May and June and implementation of drawdown procedures; upstream eel passage at all five projects; operational and other measures for downstream eel passage at all five projects; upstream fish passage facilities for anadromous fish at each project according to a phased implementation schedule; reaeration measures calling for additional spill at the Dundee and Gambo projects to meet Class B dissolved oxygen standards; and recreational facility enhancement plans for each of the five projects. The fishway prescription for the five Presumpscot dams applied a phased approach to developing upstream and downstream fish passage facilities, consisting of Phase I which required Sappi to construct a Denil fishway at the SHP dam no later than two years after fish passage became available at the Cumberland Mills dam, and at the Mallison Falls and Little Falls dams no later than two years after passage of specified numbers of American shad or blueback herring at the SHP dam. Concurrent with construction of upstream fish passage facilities, Sappi was required to install 1-inch trashracks and bypass facilities for downstream fish passage at the SHP, Mallison Falls, and Little Falls dams. No Phase I fish passage facilities were required at Gambo and Dundee dams. Phase II required the replacement of the Denil fish ladders with fish lifts at each of the three dams with Phase I fish passage prescriptions and, pending review by the resource agencies of the Phase I fish passage measures at the three lower dams (Saccarappa, Mallison Falls, and Little Falls) as well as their concurrence to initiate Phase II for Gambo and Dundee dams, potential installation of fish lifts and downstream fish passage facilities at the Gambo and Dundee dams.


The production potential of the Presumpscot River and its tributaries for Atlantic salmon, American shad and river herring was estimated to be 386 salmon, 73,900 shad, 147,700 alewives, and 450,200 blueback herring, based on surface area of aquatic habitat for each river reach and tributary.15,16 MDMR applied a figure of 235 fish per acre to develop the production estimates for alewives; the 235 fish per acre figure was developed from the commercial harvest in six Maine watersheds for the years 1971-1983 and is adjusted for a 15% escapement rate. Maine rivers do not have extensive runs of American shad or blueback herring to base its production potential estimates on, and so considered shad counts in the Connecticut River between its Holyoke and Turners Falls dams to estimate shad production potential based on 98.9 fish per acre. MDMR consulted with Steve Gephard of the Connecticut DEP, Bureau of Natural Resources, Fisheries Division, to determine how production of blueback herring is estimated for Connecticut waters and, adjusting that method, determined a production estimate for blueback herring based on a figure of 600 fish per acre. Atlantic salmon smolt estimates are based on a production goal of three smolts per unit of habitat. The estimate of aquatic habitat for the mainstem Presumpscot River is based on existing condition and does not take into account reductions in stream width, and therefore area, that would occur if one or more dams were removed. 1. SACCARAPPA. The SHP is located at approximately river mile 11 on the

Presumpscot River in the City of Westbrook in Cumberland County. The dam consists of a 322-foot long diversion dam, which is bisected by the island. The eastern channel spillway is 220 feet long by 10 feet high, and the western spillway is 102 feet long and 12 feet high. The spillway crest elevations vary from 69.8 feet to 70.0 feet. The SHP is also comprised of two bypass reaches on either side of the island, approximately 475 and 390 feet long. The SHP has an intake canal measuring 380 feet long by 36 feet wide. Other appurtenant features include: a 60-foot long headgate, an 80-foot long concrete forebay, and a 49-foot wide by 71-foot long powerhouse. The powerhouse has three turbines, each with a capacity of 450 kW. Total capacity for the SHP is 1.35 MW. Historically, the SHP has generated 7,600 megawatt hours annually. Downstream of the dam, the SHP also has a 345-foot long tailrace channel, formed by a 33-foot high concrete wall. The SHP dam impoundment extends approximately five miles upstream to the tailrace of the Mallison Falls Dam. The impoundment covers approximately 87 acres.

As mentioned above, as a matter of federal regulation, the existing 2003 WQC for the SHP will likely no longer be in force as part of a federal FERC license once all aspects of that project’s decommissioning, including corresponding conditions and obligations, are fulfilled at the state and federal levels and a final FERC surrender Order is issued. As discussed more fully below in the Department Analysis section, the ongoing effect of the terms of the WQC for the SHP as a stand-alone state Order

15 “Interim Goals for Fisheries Management”. Maine Department of Marine Resources, Maine Department of Inland Fisheries and Wildlife, Maine Atlantic Salmon Commission. January 2001. 16 “Draft Fishery Management Plan for the Presumpscot River Drainage. Wippelhauser et al. December 2001.


following execution and issuance of a final FERC surrender Order is unclear and in dispute.

2. MALLISON FALLS. The Mallison Falls Project is located at river mile 16.4, and

consists of a 358-foot-long 14-foot-high concrete, masonry and cut granite diversion dam, a headgate structure, an intake power canal, and a powerhouse containing two turbine-generator units with a total rated generating capacity of 800 kW. The Mallison Falls dam creates an 8-acre impoundment and a 675-foot-long bypass reach between the dam and the powerhouse tailwaters. The Mallison Falls Project dam was constructed in 1900.

Fish Passage Condition Summary. According to the 2003 WQC issued for Mallison Falls, in Phase I, a Denil fishway or other upstream fish passage facility of comparable efficiency in passing the target species, and include a counting, trapping and sorting facility. The upstream fish passage facility must be designed to pass at least 4,200 American shad, 26,000 blueback herring, and 32 Atlantic salmon annually, and must be completed and operational at the Mallison Falls Project two years after 2,960 American shad or 18,020 blueback herring are passed in any single season at the SHP dam. Additionally, the applicant shall install and operate downstream passage facilities designed to pass American shad, blueback herring and Atlantic salmon at the project. These facilities shall be operational concurrent with the completion of upstream anadromous fish passage facilities at the project or within 2 years following notification by the MDMR or the ASC of sustained stocking of anadromous fish above the Mallison Falls dam, whichever comes first. Phase II fish passage consists of converting or replacing the Phase I passage facilities with a fish lift, or other passage facilities of comparable efficiency in passing the target species, designed to pass up to 44,000 American shad, 270,000 blueback herring, and 185 Atlantic salmon annually. These facilities, which shall include a counting, trapping, and sorting facility, but be operational no later than 2 years after (1) notification from the MDMR, the MDIFW, and the ASC of initiation of Phase II restoration above Gambo dam and (2) the capacity of the installed Phase I passage facilities has been reached for any of the target species. Amendment Proposal. The applicant proposes to align the WQC with the Settlement Agreement and provide an additional option to its present requirement to install fish passage facilities at Mallison Falls within two years of achieving trigger numbers at the SHP fish counting facility; the proposed new option consists of surrendering its FERC license and removing all dam spillways at Mallison Falls within three years of reaching the American shad or blueback herring trigger numbers at Saccarappa. Phase II requirements for this project remain unchanged.

3. LITTLE FALLS. The Little Falls Project, located at river mile 16.9, consists of a

310-foot-long, 14-foot-high L-shaped concrete and masonry dam that creates a 29-acre impoundment extending 1.7 miles to the tailwaters of the Gambo Project, and a powerhouse integral with the dam, containing four turbine-generator units with a total rated capacity of 1,000 kW. The Little Falls Project has a 300-foot-long bypass reach


between the upper section of the dam and the powerhouse tailwaters. The Little Falls Project dam was constructed in the early 1900’s.

Fish Passage Condition Summary. As with Mallison Falls Dam, the 2003 WQC issued for Little Falls requires that Phase I upstream passage would be completed and operational at the Little Falls Project two years after 2,960 American shad or 18,020 blueback herring are passed in any single season at SHP dam. Upstream fish passage facilities are to consist of a Denil fishway or other passage facilities of comparable efficiency in passing the target species, designed to pass at least 3,100 American shad, 19,000 blueback herring and 15 Atlantic salmon annually. The facilities are to include a counting, trapping and sorting facility. Additionally, the applicant shall install and operate downstream passage facilities designed to pass American shad, blueback herring and Atlantic salmon at the project. These facilities shall be operational concurrent with the completion of upstream anadromous fish passage facilities at the project or within 2 years following notification by the MDMR or the ASC of sustained stocking of anadromous fish above the Little Falls Dam, whichever comes first. Amendment Proposal. The applicant proposes to align the WQC for this project with the Settlement Agreement and provide an additional option for fish passage by allowing either the installation of fish passage facilities at Little Falls within two years of achieving trigger numbers at the SHP fish counting facility, or the surrender of its FERC license and the removal of all dam spillways at Little Falls within three years after removal of the spillways at Mallison Falls. Phase II fish passage requirements remain unchanged.

4. GAMBO. The Gambo Project, located at river mile 18.6, includes a 300-foot-long 24-

foot-high concrete dam, a headgate structure, an intake and power canal, and a powerhouse containing four turbine-generator units with a total rated generating capacity of 1,900 kW. The Gambo Project has a 300-foot-long bypass reach between the dam and the powerhouse tailwaters. The Gambo Project dam was constructed and has been in operation since 1911.

Fish Passage Condition Summary. No upstream fish passage facilities are required during Phase I of the Upstream Anadromous Fish Passage plan. There is also no firm deadline for any fish passage requirement under the Phase II provisions for the Gambo Project, which contemplate an operational fish lift, or other passage facilities of comparable efficiency in passing the target species, designed to pass up to 40,000 American shad, 244,000 blueback herring, and 153 Atlantic salmon annually, including a counting, trapping and sorting facility, no later than two years after (1) notification from the MDMR, the MDIFW, and the ASC of initiation of Phase II restoration above Gambo Dam and (2) passage of at least 620 American shad or 3,800 blueback herring in any single year at the downstream Little Falls Project. Concurrent with its upstream fish passage measures, or within two years following notification by the MDMR or the ASC of sustained stocking of anadromous fish above the Gambo Dam, the applicant must also install and operate downstream


passage facilities designed to pass American shad, blueback herring, and Atlantic salmon at the project.

Amendment Proposal. The applicant requests to amend the 2003 WQC issued for Gambo dam to remove the Phase II fish passage requirements currently in place for the duration of the term of the WQC.

5. DUNDEE. The Dundee Project, located at river mile 21.9 includes a 1,492-foot-long,

50-foot high concrete dam that creates a 197-acre impoundment, extending 1.7 miles upstream to the tailwaters of the North Gorham Project, and a powerhouse integral with the dam, containing three turbine-generator units with a total rated generating capacity of 2,400 kW. The Dundee Project also includes a 1,075-foot-long tailrace channel, which creates a bypass reach. The Dundee Project dam was constructed and has been in operation since 1913.

Fish Passage Condition Summary. No upstream fish passage facilities are required during Phase I of the Upstream Anadromous Fish Passage plan. There is no firm deadline for any fish passage requirement under the Phase II provisions for the Dundee Project, which contemplate an operational fish lift, or other passage facilities of comparable efficiency in passing the target species, designed to pass up to 20,000 American shad, 122,000 blueback herring, and 64 Atlantic salmon annually, including a counting, trapping and sorting facility, no later than two years after (1) notification from the MDMR, the MDIFW, and the ASC of initiation of Phase II restoration above Gambo Dam and (2) passage of at least 4,020 American shad or 24,460 blueback herring in any single year at the downstream Gambo Project. Concurrent with its upstream fish passage measures, or within two years following notification by the MDMR or the ASC of sustained stocking of anadromous fish above the Dundee Dam, the applicant must also install and operate downstream passage facilities designed to pass American shad, blueback herring, and Atlantic salmon at the project. Amendment Proposal. The applicant requests to amend the 2003 WQC issued for Dundee Dam to remove the Phase II fish passage requirements currently in place for the duration of the term of the WQC.

C. Agency and Public Comments on Upstream WQC Amendments

The Department requested review of the proposed WQC Amendment applications from MDIFW, MDMR, MDEP, MDOT, Maine Emergency Management Agency, Maine Historic Preservation Commission, and USFWS. The Agency comments were generally positive, and in support of the proposed amendments. During the review process the Department also received numerous comments from individuals and groups, including Parties to the Settlement Agreement such as FOPR, CLF, and the City of Westbrook, and others such as Douglas Watts, Friends of Sebago Lake (FOSL), Ed Friedman, Friends of Merrymeeting Bay (FOMB), Maine Rivers, Natural Resources Council of Maine (NRCM), and the Town of Standish, regarding the


WQC amendments for the four Presumpscot River Hydro Projects upstream of the SHP. Some of the comments were in opposition to the proposed amendments, and cited concerns regarding the propriety of processing the, consolidating the WQC amendment applications with the SHP MWDCA and WQC application, and amending provisions in the 2003 Combined WQC with respect to upstream fish passage at the Gambo and Dundee Projects. Other concerns were expressed regarding the accuracy of fish population estimates. The Department considered all comments and where appropriate incorporated them into this decision and Order. The Department has determined that acceptance of the submitted applications for processing and the consolidation of the applications here was appropriate under the Department’s rules. The Department has also determined that the amendment of existing licenses based on changed circumstances, such as the WQCs for the four Presumpscot River Hydro Projects upstream from the SHP, is appropriate, and that the Department may properly rely on other agencies such as MDMR, USFWS, and MDIFW, to supply fisheries and other information and expertise. These issues, including the concerns outlined in comments from the public, are further addressed in the Department Analysis section and footnotes below.

D. Department Analysis Regarding Upstream WQC Amendments

The Department finds that circumstances have changed significantly since the Department (through its then-Commissioner) issued the 2003 Combined WQC, and that these changed circumstances are sufficient to trigger the Department’s jurisdiction to consider and act on the requested amendments to the WQCs for the four Presumpscot River Hydro Projects immediately upstream from the SHP (i.e., the Mallison Falls, Little Falls, Gambo, and Dundee Projects).17 The Department also finds that these changed

17 The Department also finds and determines that the Commissioner is not barred by “res judicata” from considering the requested amendments to the 2003 Combined WQC for the four projects upstream from Saccarappa, as asserted in comments by the FOSL and Douglas Watts and supported in comments by FOMB and Ed Freidman. As noted above, the Department has statutory and regulatory authority to alter conditions of any licenses (which as defined by its Rule Chapter 2, ¶ 1(L), include “the whole or any part” of any certifications such as WQCs) proposed by a licensee such as Sappi. See 38 M.R.S.A. §§ 344(9), 341-D(3), 342(11-C), 414-A(5)(B); Rule Chapter 2, ¶ 21. The Department also finds that the changed circumstances here amply support the Commissioner’s decision to consider and approve all requested WQC amendments, subject to the conditions of this order, and that the Department is not barred from revisiting terms of the 2003 Combined WQC – indeed, the Department has already made multiple changes to provisions in the 2003 Combined WQC through prior orders of the Commissioner addressing the timing of Phase I fish passage requirements at the SHP. The Department also finds that the WQC amendment applications for the projects upstream from the SHP are “ripe” for Department consideration and action for the reasons above, and because they meet the requirements of Rule Chapter 2, were already accepted as complete and properly consolidated for processing with the related application for the SHP (see Department letters dated May 9 and May 14, 2018), and are part of a larger basin-wide proposed resolution of interrelated fish passage issues on the Presumpscot River. See comments of CLF and FOPR dated June 21, 2018 (at pp. 6-9) regarding res judicata and ripeness, which the Department also generally agrees with. Finally, as discussed more fully below, the proposed WQC changes for the four upstream projects merely involve additional dam removal options for the Mallison Falls and Little Falls Projects, and the timing of future discretionary Phase II decisions at the Gambo and Dundee Projects that are not


circumstances support the approval of the requested WQC amendments and the alteration of the 2003 Combined WQC for these upstream projects subject to the conditions of this Order. The significant changed circumstances since the issuance of the Department’s 2003 Combined WQC include the following: Beginning in 2013, Sappi announced its intent to surrender its FERC license for the SHP and to decommission that project, which, as noted in comments by the state and federal fish agencies, and as the Department finds, has potential substantial negative effects on the ability of anadromous fish to pass upstream on the Presumpscot River. See comments of MDMR dated July 6, 2018 (at p. 1) and April 20, 2018 (at pp. 1-2); USFWS comments dated June 11, 2018 (at pp. 2, 8). The Department thus finds that the legal and practical implications of Sappi’s intended FERC license surrender of the SHP amount to significant changed circumstances that cast doubt on the ongoing ability of the Department and the State of Maine to 1) ensure construction of effective fish passage facilities at the SHP; 2) use WQC conditions to monitor and enforce fish passage requirements at the SHP and to trigger additional fish passage requirements further upstream; 3) further fish restoration goals at the Presumpscot River Hydro Projects and in the Presumpscot River generally; and 4) appropriately balance applicable water quality standards in the Presumpscot River.18 For example, Sappi has taken the position, disputed by the Department, that all requirements of the 2003 Combined WQC for the SHP, which were incorporated into the existing FERC license for that project, would be eliminated in the event of a contested surrender of Sappi’s FERC license – thus creating a potential jurisdictional plug on the Presumpscot River that could arguably hinder or prevent further fish restoration efforts both at the SHP and upstream from the project. Absent enforceable requirements for the construction of effective upstream anadromous fish passage at the SHP and for the ongoing maintenance, operation, and monitoring of such fish passage facilities once they are constructed, additional biological triggers in the 2003 Combined WQC for further upstream fish passage efforts may never occur.

expected to be triggered for decades if at all. The Department finds that these limited changes do not degrade existing water quality in any way, violate any existing requirements of the 2003 Combined WQC, or change or create any new water quality standards, as has been asserted in various comments, including those by FOSL, FOMB, and Mr. Watts. 18 Under the principles of Maine Supreme Court decisions, the Department must generally balance various competing designated uses, as well as exercise its expertise and discretion to balance various considerations on a case-by-case basis when determining whether and when fish passage is required at dam sites pursuant to applicable water quality standards. See Bangor Hydro-Electric v. Board of Environmental Protection, 595 A.2d 438 (1991); S.D. Warren Company v. Board of Environmental Protection, 2005 ME 27, 868 A.2d 210; Save our Sebasticook, Inc. v. Board of Environmental Protection, 2007 ME 102, 928 A.2d 736; Watts v. Board of Environmental Protection, 2014 ME 91, 97 A.3d 115. The Maine Supreme Court has also deferred to and affirmed the Department’s longstanding position that “[n]othing in the State’s water quality standards necessarily requires installation of fish passage at all dams or that all populations of indigenous species be self-sustaining, without regard to the particular circumstances of the waterbody…” Watts, 2014 ME 91, ¶¶ 9-10, 97 A.3d 115.


As noted in comments, Sappi was prepared to challenge the authority of the Department and FERC to require Sappi to implement any construction or ongoing oversight measures at the SHP as a condition of any FERC license surrender. See comments of CLF and FOPR dated June 21, 2018 (p. 12 & n.12); Sappi comments dated July 6, 2018 (at p. 2). The Department thus also finds that the extent of Sappi’s obligations under such a potential surrender scenario would involve generally unresolved and disputed questions of law and policy regarding FERC-licensed hydropower projects. See id. (at pp. 11-13 & n.12-16). While these issues may be unresolved and disputed, the Department finds that they have the potential to jeopardize effective anadromous fish passage at each of the Presumpscot River Hydro Projects and fish restoration on the Presumpscot River generally as contemplated by MDMR’s 2001 Draft Fishery Management Plan for the Presumpscot River Basin, the 2003 Combined WQC, and USFWS’s prescription contained in the existing FERC licenses for the Presumpscot River Hydro Projects. The Department thus concludes that sufficient changed circumstances exist here to warrant the Department’s consideration and approval of the requested WQC amendments for the Presumpscot River Hydro Projects upstream from the SHP pursuant to the conditions of this Order. As discussed more fully below, the Department finds that, given the changed circumstances, the proposals and WQC amendments called for in the Settlement Agreement and requested here are warranted and represent an appropriate resolution of disputed positions and a reasonable and balanced approach to achieving effective fish passage at the SHP and beyond. The Department further finds and determines that, subject to the conditions of this Order, there is a reasonable assurance that the requested WQC amendments will further the fish restoration goals for the Presumpscot River set forth in MDMR’s 2001 draft plan, the 2003 Combined WQC, and the USFWS’s prescription contained in the existing FERC licenses for the Presumpscot River Hydro Projects, and will continue to meet and will not to violate applicable water quality standards. Mallison Falls and Little Falls Projects. The sole proposed WQC amendments for the Mallison Falls and Little Falls Projects contemplate an alternative to construction of the Phase I fish passage requirements in the 2003 Combined WQC once sufficient biological trigger numbers at the SHP are achieved. This additional alternative option would essentially consist of the surrender of Sappi’s FERC license at one or both of these projects along with a scheduled approach to dam decommissioning and removal rather than construction of Phase I fish passage at the sites. The Department finds that the addition of another alternative method of complying with the 2003 Combined WQC for these two projects does not negatively affect Maine’s water quality standards in any way; indeed, no comments have been submitted that suggest otherwise. The Department thus finds and determines that, subject to the conditions of this Order, there is a reasonable assurance that the Mallison Falls and Little Falls Projects will continue to meet and will not violate applicable water quality standards with adoption of the requested WQC amendments, which will also further the fish restoration goals for the Presumpscot River. Gambo and Dundee Projects. The sole proposed WQC amendments for the Gambo and Dundee Projects contemplate the suspension of discretionary Phase II fishway decisions


by Maine’s fish agencies – MDMR, MDIFW, and the ASC19 – for the term of the licenses for those projects, if extended to 2053. As noted above, the significant changed circumstances present here warrant the proposals at the SHP and all of the WQC amendments for the Presumpscot River Hydro Projects as outlined in the Settlement Agreement. See also comments of CLF and FOPR dated June 21, 2018 (at pp. 11-13 & n.12-16); Sappi comments dated July 6, 2018 (at p. 2). Nothing in the existing 2003 Combined WQC, which was previously determined by the Department to meet applicable water quality standards, requires any mandatory fish passage at either the Gambo or Dundee Projects at any particular time. Unlike the Saccarappa, Mallison Falls, and Little Falls Projects, there are no Phase I fish requirements for either the Gambo or Dundee Projects. The only fish passage provisions in the 2003 Combined WQC for the Gambo and Dundee Projects involve discretionary Phase II fish passage decisions that would occur after Phase I requirements are met at the downstream projects and only if Maine’s fish agencies agree that further Phase II efforts are appropriate at the Gambo and Dundee Projects. See 2003 Combined WQC (at pp. 11-12: pursuant to MDMR’s 2001 Plan, allowing for Phase II efforts “[i]f the three fisheries agencies agree,” at pp. 18-19: noting the need for flexibility in facility design specifications given the possible delays before passage is required, and at pp. 35-36: outlining conditions for Gambo and Dundee Projects requiring no Phase I passage and discretionary Phase II passage decisions two years after MDMR, DIFW, and ASC agree that Phase II passage is appropriate above those projects). MDMR, which now also includes ASC, is a signatory to and fully supports the Settlement Agreement. See MDMR comments dated April 20, 2018, June 11, 2018, June 25, 2018, and July 6, 2018. MDIFW similarly has no objection to any of the requested WQC amendments. See MDIFW email comment noting “no issues” dated May 21, 2018. The Department views these comments as effectively amounting to preliminary determinations under the 2003 Combined WQC by the necessary agencies that the discretionary Phase II passage provisions will not be needed and are not appropriate under the circumstances for the term of the extended license for the Gambo and Dundee Projects. See MDMR comments dated July 6, 2018 (at p. 2); Sappi comments dated July 6, 2018 (at p. 1). Thus, no mandatory fish passage or other requirement of the 2003 Combined WQC is affected or violated by the proposed WQC amendments at the Gambo and Dundee Projects, and, subject to the conditions of this Order, applicable water quality standards will continue to be met and will not be violated due to the Department’s approval of the requested amendments. In any event, in comments MDMR also emphasizes, and the Department also finds, that “current low numbers of shad and blueback herring passing the Cumberland Mills Dam support the reasonableness of any delays in the installation of fish passage at Gambo and Dundee because the trigger numbers for these dams is unlikely to be met even with the superior fish passage provided at Saccarappa by the Settlement Agreement.” MDMR comments dated July 6, 2018 (at p. 1); see also MDMR comments dated April 20, 2018

19 At the time the 2003 Combined WQC and FERC licenses were issued for the Presumpscot River Hydro Projects, management of Atlantic salmon was the responsibility of the ASC; however, that agency and its mission have since been integrated into MDMR.


(at pp. 1-2), June 11, 2018 (at pp. 3-4), and June 25 (at p. 1 and attached Cumberland Mills dam fish passage effectiveness results); USFWS comments dated June 11, 2018 (at pp. 7).20 MDMR also commented, and the Department further finds, that restoration efforts below the Gambo and Dundee Projects are “by far the most important objective at this stage of the restoration on the Presumpscot.” MDMR comments dated June 11, 2018 (at p. 4). The Department acknowledges the expertise, experience, and priorities of the fish resource agencies, including MDMR and USFWS, and accepts their current recommendations regarding the proposals for the Presumpscot River Hydro Projects contemplated by the Settlement Agreement. The Department thus finds and determines that, subject to the conditions of this Order, there is a reasonable assurance that the Gambo and Dundee Projects, as well as the Mallison Falls and Little Falls Projects, will continue to meet and will not cause or contribute to any violation of applicable water quality standards with adoption of the requested WQC amendments, which will also further the fish restoration goals for the Presumpscot River.

9. COMMENTS ON DRAFT ORDER The Department released the Draft Order to the applicant and interested parties on September 11, 2018. There was a period of five business days for public comments. The Department received comments on the Draft Order including comments from: Sappi, the City of Westbrook, MDMR, USFWS, CLF, FOPR, Doug Watts, FOSL, and FOMB. Several commenters objected to the Department’s Special Condition #13 for post-dam removal fish passage monitoring. As noted in comments, the Settlement Agreement details provisions for post-construction monitoring and adjustment of fish passage. Upon further review of the language in the Settlement Agreement, the Department agreed with these comments and updated Special Condition #13 to reference the plans in the Settlement Agreement. In response to multiple comments, the Department corrected errors inadvertently made in the Draft Order regarding applicable water quality standards, such as the elimination of prior footnote 9. The Department did not rely upon or apply any inadvertent misstatements of standards in its analysis, and as reflected in the discussion and analysis in the Order, all applicable water quality standards, including all aquatic life and habitat standards, were previously determined by the Department to have been met under the terms of the 2003 Combined WQC, and continue to be met under the terms of this Order addressing the applicant’s various proposals. The Department has also determined that no applicable water quality standards will be violated by any of the proposals addressed by this Order, as conditioned. 20 In their comments involving an alleged lack of “ripeness,” FOSL and Mr. Watts also assert that, based on recent data reflecting less-than-anticipated downstream fish presence, the biological trigger limits for the 2003 Combined WQC’s Phase II discretionary fish passage provisions for the Gambo and Dundee Projects are not likely to be implicated for decades and instead involve “future, abstract hypotheticals which may never come to pass.” Comments of FOSL and Mr. Watts dated May 3, 2018 (at p. 3). These comments are consistent with MDMR’s observations at the downstream Cumberland Mills dam.


After further consideration of the evidence in the record, the Department removed Special Condition #11. Sappi objected to Special Condition #12 requiring the development of an invasive species monitoring plan. The Department maintains that the monitoring for invasive plant species following a dam removal project is an appropriate measure to protect water quality under the MWDCA, and has been required at other dam removal sites. The Department limited the scope of invasive plant species monitoring to one vegetative growing season following dam removal activities. Sappi further objected to the requirement to submit an application to amend the existing WQC for the deadline for operational upstream fish passage at the SHP, noting that its MWDCA application expressly contained a request for that extension. The Department reviewed Sappi’s filings and confirmed that such a request was included in Sappi’s MWDCA application. The Department also determined that the extension of time request for the fish passage deadline at the SHP is appropriately granted as part of this Order based on the overlapping factual circumstances and as part of the MWDCA process. Indeed, Section 635-B of the MWDCA, 38 M.R.S.A. § 635-B, requires that Department action with respect to WQC occur at the same time that the Department approves a proposed project, and supports the Department’s consolidation of Sappi’s SHP application with Sappi’s related request for an extension of the existing upstream fish passage deadline for the SHP. Sappi objected to Special Condition #14. After further consideration of evidence in the record, the Department removed Special Condition #14. Several comments objected to the reopener language in the WQC condition section of this Order. The Department removed the reopener language, which the Department believes is unnecessary under the unique circumstances presented in this Order. Commenter Doug Watts asserted that the Department is required to submit this Order to US EPA Region 1 for review for consistency with the Clean Water Act (CWA). The Department disagrees. Section 401 of the CWA delegates authority to the States to certify that applicants for federal licenses that may result in any discharge to navigable waters, such as a FERC hydropower license, meet applicable state water quality standards, which are outlined in Section 4 of this Order. This Order, and WQC in general, do not create or modify state water quality standards, such as those set forth in the Department’s water classification program, 38 M.R.S. §§ 464-470, but instead analyze whether an applicant’s proposed operations meet and do not cause or contribute to violations of such existing standards. It is not Department practice, nor is legally required or appropriate, to seek EPA review of the Department’s WQC orders. Doug Watts also asserted that the WQC amendments for the Gambo and Dundee Projects must be processed separately from the MWDCA application for the Saccarappa Project. The Department has addressed this issue several times prior to the issuance of this Draft Order, and justification for consolidation of all Sappi’s pending applications and requests is included in this Order. Furthermore, the Department has not misread or misapplied any portion of the 2003 Combined Order, nor has the Department delegated any authority over Department decisions to sister agencies such as MDMR. The Department relies on its sister Agencies to provide expertise to help inform Department decisions. Mr. Watts commented that fish passage counts at


Cumberland Mills for the 2017 and 2018 migration seasons were not submitted by Sappi; the Department determined that fish passage counts at Cumberland Mills dam are for the purpose of determining the efficacy of the Cumberland Mills fish passage facility and are not for the purpose of determining the population of fish present at the toe of Gambo dam. The Department understands, and had previously informed Mr. Watts that no effectiveness report was submitted in 2017 because Sappi believes the effectiveness testing is completed (see email from Kathy Howatt dated August 21, 2018, at 8:35 am). In 2017 Sappi reported only fish counts to MDMR; no count is available at this time for 2018. Comments submitted by FOSL and FOMB echoed many of Mr. Watts’ comments. Other comments submitted by FOSL and FOMB regarding the Department’s CWA authority are addressed within this Order. As a result of the changes the Department made to the Draft Order based on public comments received, the Department released a revised Draft Order on September 27, 2018 for additional public comment, pursuant to Section 18(B) of the Department’s Chapter 2 Rule regarding the processing of applications, which reads: B. Comments on a Draft License Decision. The Department shall accept and may incorporate comments on the draft license decision after it has been made available. If the Commissioner or Board determines that the draft decision should be substantially revised as a result of comments received, a new draft must be made available in accordance with this section. Any person who submits writtend comments on a draft order will receive a copy of the final order and notice of appeal rights. The Department received comments on the revised Draft Order from MDMR, Doug Watts, and FOSL and FOMB. MDMR’s comments were minor and grammatical, and the Department incorporated the changes. The remaining comments were considered by the Department, and were determined to have been addressed previously in the first Draft Order and throughout the review process. 10. SHP APPLICATION – CONCLUSIONS AND APPROVAL WITH CONDITIONS

BASED on the above Findings of Fact and the evidence contained in the MWDCA application and supporting documents, comments, and other record materials, and subject to the conditions listed below, which are appropriate and reasonable to protect and preserve the environment and the public’s health, safety and general welfare, the Department makes the following CONCLUSIONS:

1. The applicant has the financial capacity and technical ability to undertake the project. 2. The applicant has made adequate provision for protection of public safety. 3. The project will result in significant benefits to the public, provided that adequate

measures are taken to mitigate any adverse impacts to public and private infrastructure.

4. The applicant has made adequate provision for traffic movement.


5. The proposed activity is not located within the jurisdiction of the Land Use Planning Commission.

6. The applicant has made reasonable provisions to realize the environmental benefits

and to mitigate the adverse environmental impacts of the project, provided that:

a. A final erosion and sedimentation control plan for all dam removal and fishway installation activities is prepared and implemented;

b. All access road and cofferdam fill material meets established standards and is

removed following completion of dam removal activities; c. All demolition debris and other construction spoils are reused, recycled, or

otherwise disposed of in accordance with established regulations; d. Fresh concrete does not come into contact with surface water and meets the

minimum dilution to achieve a pH of 8.5 or less; e. Appropriate measures are taken to monitor the shoreline following dam removal

and to implement bank stabilization measures, as needed; f. Appropriate measures are taken to monitor invasive plant species for a period of

one growing seasons following completion of dam removal activities; g. A phased impoundment drawdown is implemented, as proposed; h. Appropriate measures are taken to monitor and protect and/or extend upstream

drainage and outfall structures following dam removal and fishway installation, as needed;

i. Appropriate measures are taken to monitor fish passage following dam removal

and fishway installation and to take remedial actions, as needed, to ensure adequate passage through the affected river reach and its tributaries;

j. A plan to coordinate the timing of project activities to minimize the impact on fish

passage is developed and implemented; k. Adequate technical engineering data is provided to FEMA within 6 months

following removal of the Project spillways and reshaping of the eastern and western channels;

l. Appropriate measures are taken, as needed, to modify and maintain all public boat

access sites following completion of the Project;

7. The advantages of the project are greater than the direct and cumulative adverse impacts over the life of the project, provided that the project is undertaken in accordance with the provisions of Conclusion #6 above.


8. There is a reasonable assurance that the project will not violate applicable State water

quality standards, provided that the project is undertaken in accordance with the provisions of Conclusion #6 above, and subject to all conditions in this Order.

THEREFORE, the Department APPROVES the above noted MWDCA application of Sappi North America, Inc. to remove the SHP dam as described above, SUBJECT TO THE FOLLOWING CONDITIONS, and all applicable standards and regulations:

1. STANDARD CONDITIONS OF APPROVAL

All Standard Conditions of Approval for projects under the MWDCA, a copy of which is attached.

2. CONDITIONS OF PRIOR APPROVAL

All terms and conditions of Department Order #L-19717-33-E-N dated April 30, 2003 relating to the operation of the existing SHP shall remain in effect and enforceable by the Department until at least such time as project decommissioning and dam removal and fishway installation activities have commenced.

All terms and condition of Department Order #L-19717-33-E-N dated April 30, 2003 relating to upstream fish passage at the SHP shall remain in effect and enforceable by the Department until at least the completion of the SHP activities to the satisfaction of the Department, in consultation with MDMR and USFWS as necessary, including the removal of the spillways, the construction of the double Denil fishway, and the reshaping of the eastern and western channels.

Furthermore, all Findings of Fact and Conclusions, as well as all other terms and conditions, in Department Order #L-19717-33-E-N and subsequent Orders shall remain in effect until FEC issues a final surrender Order.

3. EROSION AND SEDIMENTATION CONTROL PLAN

A. The applicant shall, in consultation with the Department and the general

contractor chosen to perform the dam removal and fishway installation activities, prepare, submit, and implement a final erosion and sedimentation control plan for project dam removal and fishway installation activities, including plans to secure the site for over-wintering between construction seasons, if necessary. The plan shall be reviewed and approved by the Department21 prior to the initiation of dam removal activities.

21 Review and approval by the Department is achieved through application for a condition compliance order.


B. In addition to any specific erosion and sedimentation control measures included in the plan approved by the Department under Part A of this condition or otherwise set forth in this Order, the applicant and its agents shall take all necessary measures to ensure that their activities do not result in erosion or sedimentation during or following the approved activities, except for any unavoidable sedimentation that occurs as a result of dam removal and fishway installation activities.

4. TIMING OF ACTIVITIES

The applicant shall, in consultation with the Department and appropriate state and federal fisheries agencies, prepare, submit, and implement a plan to coordinate the timing of project activities to minimize the impact on fish passage and resident fish populations. The plan shall be reviewed and approved (see footnote 21) by the Department prior to the initiation of dam removal activities.

5. HISTORIC AND ARCHAEOLOGICAL RESOURCES

The applicant shall implement the Historic Properties and Management Plan (HPMP) based on the Programmatic Agreement as required by the FERC and the Maine SHPO to protect Section 9 and 15 of the Cumberland and Oxford Canal as it relates to erosion.

The applicant will ensure that a written and photographic history of the National Register of Historic Places mill structures are preserved and are recorded with the Historic American Engineering Record/Historic American Building Survey.

6. ACCESS ROAD/COFFERDAM FILL

Any temporary access road and cofferdam fill placed in the waterway or within the 100-year floodway boundaries of the waterway shall consist of clean stone fill or sandbagged clean granular fill free from vegetable matter, lumps or balls of clay and other deleterious substances. That portion passing a No. 200 sieve shall not exceed 10% fines, by weight. All temporary access road and cofferdam fill shall be removed following completion of dam removal activities.

7. DEMOLITION DEBRIS

All demolition debris and construction spoils shall be reused, recycled or otherwise disposed of in accordance with the Maine Solid Waste Management Regulations.

8. CONCRETE CURING

Concrete shall be precast and cured at least three weeks before placing in the water, or where necessary, shall be placed in forms and shall cure at least one week prior to


contact with surface water. A minimum of 15 gallons of water per square foot of new concrete shall be flowed over new concrete to maintain the pH of discharge water at or below 8.5.

9. IMPOUNDMENT DRAWDOWN

The drawdown of the SHP impoundment shall occur in phases, as proposed by the applicant, in order to minimize the impact on fish and wildlife resources, shoreline stability, and water quality. In the first phase, the initial drawdown of the impoundment will be accomplished by opening the head gate and waste gates to direct the Presumpscot River flow to the western channel and dewater the eastern channel for demolition and removal of the eastern portion of the dam. In the second phase, the head gates will be closed to stop flow in the western channel and fill placed to divert flow to the eastern channel for demolition and removal of the western portion of the dam.

10. BANK STABILIZATION

A. The applicant shall, in consultation with the Department, take appropriate

measures to monitor the shoreline following dam removal and to implement bank stabilization measures, as needed.

B. Within one year following the completion of dam removal and fishway

installation activities, the applicant shall submit a report detailing the results of shoreline monitoring and any bank stabilization measures taken to remediate any significant stream bank erosion or slumping. This report shall be reviewed and approved by the Department(see footnote 21).

11. INVASIVE PLANT SPECIES MONITORING AND CONTROL

A. The applicant shall monitor the newly exposed shoreline and river bottom areas following dam removal for invasive plant species , for a period of one vegetative growing season following completion of dam removal activities.

12. POST-DAM REMOVAL FISH PASSAGE

A. The applicant shall take appropriate measures to monitor fish passage following

dam removal and fishway installation, and to implement remedial actions, as needed, to ensure adequate passage through the affected river reach and its tributaries, as described in Sections 2.1.6, 2.1.7.1, and 2.1.7.2 of the Settlement Agreement, and as detailed in Exhibit B of the same document, titled “Effectiveness Testing and Adjustment Plan”.


13. UPSTREAM DRAINAGE/OUTFALL STRUCTURES

A. The applicant shall, in consultation with the affected parties, monitor and protect and/or extend upstream drainage and outfall structures, as needed.

B. Within one year following the completion of dam removal activities, the applicant

shall submit a report detailing the results of the monitoring and any measures taken to protect and/or extend upstream drainage and outfall structures following dam removal and fishway installation. This report shall be reviewed and approved by the Department (see footnote 21).

14. FLOODWAY MAP REVISIONS

Within one year following completion of dam removal and fishway installation activities, the applicant shall provide to the City of Westbrook all potentially useful technical information in the applicant’s possession or control to support a request to the Federal Emergency Management Agency to revise the floodway maps for the Presumpscot River in the City of Westbrook and other affected towns to take into account the dam removal and fishway installation. A copy of this technical information shall also be provided to the Department. The applicant shall provide technical engineering data to the Federal Emergency Management Agency (FEMA) regarding changes in flood flow elevations within six months of the removal of the spillways and reshaping of the eastern and western channels.

15. PUBLIC BOAT LAUNCHES and PRIVATE DOCKS

The applicant shall, in consultation with the MDIFW and the City of Westbrook and affected parties, take appropriate measures, as needed, to modify remaining public boat access sites and private docks existing at the time of application was submitted to the Department, as necessary to accommodate lowered water levels, following dam removal and fishway installation.

16. SEVERABILITY

In the event that any provision, or part thereof, of this permit and/or certification is declared to be unlawful by a reviewing court, the remainder of the permit and/or certification shall remain in full force and effect, and shall be construed and enforced in all respects as if such unlawful provision, or part thereof, has been omitted, unless otherwise ordered by the court.


11. WQC AMENDMENT APPLICATIONS – CONCLUSIONS AND APPROVALS WITH CONDITIONS

BASED on the above Findings of Fact and the evidence contained in the WQC Amendment applications and supporting documents, comments, and other record materials, and subject to the Conditions listed below, which are appropriate and reasonable to protect and preserve the environment and the public’s health, safety and general welfare, the Department makes the following CONCLUSIONS: 1. SHP. The applicant has provided sufficient evidence that an extension of time to conduct

all construction activities contemplated by Sappi’s MWDCA application, including the demolition of the east channel and west channel spillways at the SHP and install the proposed two-channel fish passage facility, is warranted and does not impact water quality or violate any water quality standards. Therefore, the Department concludes that, as conditioned below, the proposed revision of the existing WQC for the SHP with respect to the deadline for operational upstream fish passage is a minor change and will not significantly affect any issues identified during previous Department reviews of the SHP.

2. Mallison Falls. The applicant has provided adequate evidence that the proposed WQC

amendment to have the additional option to surrender its FERC license for the Mallison Falls Project and remove all dam spillways within three years of achieving the American shad and blueback herring trigger numbers at Saccarappa will create an appropriate opportunity for volitional fish passage as an alternative to engineered fish passage; therefore, the Department concludes that, as conditioned below, the proposed WQC amendment meets the designated use of habitat for fish and other aquatic species, 38 M.R.S § 465(4)(A), and all other applicable water quality standards.

3. Little Falls. The applicant has provided adequate evidence that the proposed WQC

amendment to have the additional option to surrender its FERC license for the Little Falls Project and remove all dam spillways within three years of removal of the dam spillways at Mallison Falls will not adversely affect species of indigenous fish or violate any applicable water quality standards; therefore, the Department concludes that, as conditioned below, the proposed WQC amendment meets the designated use of habitat for fish and other aquatic species, 38 M.R.S § 465 (3)(A), and all other applicable water quality standards.

4. Gambo. The applicant has provided adequate evidence that the proposed WQC

amendment to remove the requirement for fish passage construction for the term of the license for the Gambo Project is warranted under the changed circumstances since issuance of the 2003 Combined WQC and does not affect or violate any fish passage requirements or applicable water quality standards. There are no Phase I fish passage requirements for this project under the existing 2003 Combined WQC, and Phase II fish passage provisions for this project have no firm deadline and are left to the discretion of MDMR, which now includes ASC and supports the WQC amendment, and MDIFW, which does not oppose the WQC amendment. As conditioned, applicable water quality standards will continue to be met for the term of the license, even if extended as


contemplated by the Settlement Agreement; therefore, the Department concludes that the proposed WQC amendment meets the designated use of habitat for fish and other aquatic species, 38 M.R.S § 465 (4)(A), and all other applicable water quality standards.

5. Dundee. The applicant has provided adequate evidence that the proposed WQC

amendment to remove the requirement for fish passage construction for the term of the license for the Dundee Project is warranted under the changed circumstances since issuance of the 2003 Combined WQC and does not affect or violate any fish passage requirements or applicable water quality standards. There are no Phase I fish passage requirements for this project under the existing 2003 Combined WQC, and Phase II fish passage provisions for this project have no firm deadline and are left to the discretion of MDMR, which now includes ASC and supports the WQC amendment, and MDIFW, which does not oppose the WQC amendment. As conditioned, applicable water quality standards will continue to be met for the term of the license, even if extended as contemplated by the Settlement Agreement; therefore, the Department concludes that the proposed amendment meets the designated use of habitat for fish and other aquatic life, 38 M.R.S § 465-A (1)(A), and all other applicable water quality standards.

THEREFORE, the Department APPROVES the above noted WQC Amendment applications of S.D. Sappi Company for the Saccarappa, Mallison Falls, Little Falls, Gambo, and Dundee Projects, as described above, SUBJECT TO THE FOLLOWING CONDITIONS, and all applicable standards and regulations:

1. STANDARD CONDITIONS OF APPROVAL

Standard Conditions #1, 2, 3, 4, and 10, as attached below, apply to the upstream WQC Amendments.

2. SPECIAL CONDITIONS OF APPROVAL

All terms and conditions of Department Order #L-19717-33-E-N dated April 30, 2003 and subsequent Orders relating to the operation of the existing SHP, including fish passage, shall remain in effect and enforceable by the Department as specified above in Condition 2 (“Conditions of Prior Approval”) set forth in Section 10 of this Order.

3. WQC AMENDMENTS

All terms and conditions of Department Orders #L-19717-33-N-M (Saccarappa), #L-19716-33-E-N (Mallison Falls), #L-19715-33-E-N (Little Falls), #L-19714-33-E-N (Gambo), and #L-19713-33-E-N (Dundee) remain in effect for the upstream Mallison Falls, Little Falls, Gambo and Dundee Projects, except as follows: Saccarappa. Special Condition #5.A. of Department Order #L-19717-33-E-N reads as follows: A. The applicant shall install and operate upstream fish passage facilities at the project:


Phase I. A Denil “fish ladder” or other passage facilities of comparable efficiency in passing the target species, designed to pass at least 18,000 American shad, 109,000 blueback herring, and 273 Atlantic salmon annually. These facilities, which shall include a counting, trapping and sorting facility, must be operational no later than 2 years after passage is available at the downstream Cumberland Mills dam.

Phase II. Convert or replace the Phase I passage facilities with a fish lift, or other passage facilities of comparable efficiency in passing the target species, designed to pass up to 58,000 American shad, 353,000 blueback herring, and 426 Atlantic salmon annually. These facilities, which shall include a counting, trapping and sorting facility, must be operational no later than 2 years after (1) notification from the Department of Marine Resources, the Department of Inland Fisheries and Wildlife, and the Atlantic Salmon Commission of initiation of Phase II restoration above Gambo Dam and (2) the capacity of the installed Phase I passage facilities has been reached for any of the target species.

Department Order #L-19717-33-N-M hereby modifies Special Condition #5.A. for the Saccarappa Project as follows:

B. The applicant shall install and operate upstream passage facilities at the project: Phase I. A Denil fishway, or other passage facilities of comparable efficiency in passing the target species, designed to pass at least 18,000 American Shad, 109,000 blueback herring, and 273 Atlantic salmon annually. These facilities, which shall include a counting, trapping, and sorting facility, must be in operation no later than eight years after passage is available at the downstream Cumberland Mills dam. Phase II. Convert or replace the Phase I passage facilities with a fish lift, or other passage facilities of comparable efficiency in passing target species, designed to pass up to 58,000 American shad, 353,000 blueback herring, and 426 Atlantic salmon annually. These facilities, which shall include a counting, trapping and sorting facility, must be operational no later than 2 years after (1) notification from the Department of Marine Resources, the Department of Inland Fisheries and Wildlife, and the Atlantic Salmon Commission of initiation of Phase II restoration above Gambo Dam and (2) the capacity of the installed Phase I passage facilities has been reached for any of the target species.

Mallison Falls. Condition 5. of Department Order #L-19716-33-E-N reads as follows:

A. The applicant shall install and operate the following upstream fish passage facilities at

the project:

Phase I. A Denil “fish ladder” or other passage facilities of comparable efficiency in passing the target species, designed to pass at least 4,200 American shad, 26,000 blueback herring, and 32 Atlantic salmon annually. These facilities, which shall


include a counting, trapping and sorting facility, must be operational no later than 2 years after passage of at least 2,960 American shad or 18,020 blueback herring in any single year at the downstream SHP.


B. The applicant shall install and operate downstream passage facilities designed to pass

American shad, blueback herring and Atlantic salmon at the project. These facilities shall be operational concurrent with the completion of upstream anadromous fish passage facilities at the project or within 2 years following notification by the Department of Marine Resources or the Atlantic Salmon Commission of sustained stocking of anadromous fish above the Mallison Falls Dam, whichever comes first.

Department Order #L-19716-33-G-M herby modifies Condition 5. as follows:

A. Upon the occurrence of 2,960 American shad or 18,020 blueback herring passing in

any single season at the Saccarappa fish counting facility, S.D. Sappi shall either (1) two years thereafter construct and operate upstream and downstream fish passage facilities at the project in accordance with A., Phase I and Phase II, and B. of Section 5 of the 2003 Water Quality Certification for the Mallison Falls Hydroelectric Project (Project #L-19716-33-E-N) and as required by the Mallison Falls Project FERC license, or (2) three years thereafter surrender its FERC license, and remove, at a minimum, all dam spillways at the Project.

Upstream Fish Passage - Phase I. A Denil fishway or other passage facilities of comparable efficiency in passing the target species, designed to pass at least 4,200 American shad, 26,000 blueback herring, and 32 Atlantic salmon annually. These facilities, which shall include a counting, trapping and sorting facility, must be operational no later than 2 years after passage of at least 2,960 American shad or 18,020 blueback herring in any single year at the downstream SHP.

Phase II. Convert or replace the Phase I passage facilities with a fish lift, or other passage facilities of comparable efficiency in passing the target species, designed to pass up to 44,000 American shad, 270,000 blueback herring, and 185 Atlantic salmon annually. These facilities, which shall include a counting, trapping and sorting facility, must be operational no later than 2 years after (1) notification from the Department of Marine Resources and the Department of Inland Fisheries and Wildlife of initiation of Phase II restoration above Gambo Dam and (2) the capacity of the installed Phase I passage facilities has been reached for any of the target species.


Downstream Fish Passage. The applicant shall install and operate downstream passage facilities designed to pass American shad, blueback herring and Atlantic salmon at the project. These facilities shall be operational concurrent with the completion of upstream anadromous fish passage facilities at the project or within 2 years following notification by the Department of Marine Resources of sustained stocking of anadromous fish above the Mallison Falls Dam, whichever comes first.

Little Falls. Condition 5. of Department Order #L-19715-33-E-N reads as follows:


the project:

Phase I. A Denil “fish ladder” or other passage facilities of comparable efficiency in passing the target species, designed to pass at least 3,100 American shad, 19,000 blueback herring, and 15 Atlantic salmon annually. These facilities, which shall include a counting, trapping and sorting facility, must be operational no later than 2 years after passage of at least 2,960 American shad or 18,020 blueback herring in any single year at the downstream SHP.



American shad, blueback herring and Atlantic salmon at the project. These facilities shall be operational concurrent with the completion of upstream anadromous fish passage facilities at the project or within 2 years following notification by the Department of Marine Resources or the Atlantic Salmon Commission of sustained stocking of anadromous fish above the Little Falls Dam, whichever comes first.

Department Order #L-19715-33-G-M hereby modifies Condition 5. as follows:

A. Upon the occurrence of 2,960 American shad or 18,020 blueback herring passing in

any single season at the Saccarappa fish counting facility, S.D. Sappi shall either (1) two years thereafter construct and operate upstream and downstream fish passage facilities at the project in accordance with Section 5 A. of the 2003 Water Quality Certification for the Little Falls Hydroelectric Project (Project #L-19715-33-E-N) and as required by the Little Falls Project FERC license, or (2) three years after removal of the Mallison Falls spillways, surrender its FERC license, and remove, at a minimum, all dam spillways at the Project.


Upstream Fish Passage - Phase I. A Denil fishway or other passage facilities of comparable efficiency in passing the target species, designed to pass at least 3,100 American shad, 19,000 blueback herring, and 15 Atlantic salmon annually. These facilities, which shall include a counting, trapping and sorting facility, must be operational no later than 2 years after passage of at least 2,960 American shad or 18,020 blueback herring in any single year at the downstream SHP.

Phase II. Convert or replace the Phase I passage facilities with a fish lift, or other passage facilities of comparable efficiency in passing the target species, designed to pass up to 43,000 American shad, 263,000 blueback herring, and 168 Atlantic salmon annually. These facilities, which shall include a counting, trapping and sorting facility, must be operational no later than 2 years after (1) notification from the Department of Marine Resources and the Department of Inland Fisheries and Wildlife, of initiation of Phase II restoration above Gambo Dam and (2) the capacity of the installed Phase I passage facilities has been reached for any of the target species.

Downstream Fish Passage. The applicant shall install and operate downstream passage facilities designed to pass American shad, blueback herring and Atlantic salmon at the project. These facilities shall be operational concurrent with the completion of upstream anadromous fish passage facilities at the project or within 2 years following notification by the Department of Marine Resources of sustained stocking of anadromous fish above the Mallison Falls Dam, whichever comes first.

Gambo. Condition 5. of Department Order #L-19714-33-E N reads as follows:


the project:

Phase I. No upstream fish passage facilities required.

Phase II. A fish lift, or other passage facilities of comparable efficiency in passing the target [species], designed to pass up to 40,000 American shad, 244,000 blueback herring, and 153 Atlantic salmon annually. These facilities, which shall include a counting, trapping and sorting facility, must be operational no later than 2 years after (1) notification from the Department of Marine Resources, the Department of Inland Fisheries and wildlife, and the Atlantic Salmon Commission of initiation of Phase II restoration above Gambo Dam and (2) passage of at least 620 American shad or 3,800 blueback herring in any single year at the downstream Little Falls Project.


American shad, blueback herring and Atlantic salmon at the project. These facilities shall be operational concurrent with the completion of upstream anadromous fish passage facilities at the project or within 2 years following notification by the Department of Marine Resources or the Atlantic Salmon Commission of sustained stocking of anadromous fish above the Gambo Dam, whichever comes first.


Department Order #L-19714-33-G-M herby modifies Condition 5. as follows:

A. No fish passage facilities are required for the term of the FERC license issued on

October 3, 2003 for the Gambo Hydroelectric Project, or for the term of any extension by amendment of that license.

Dundee. Condition 5. of Department Order #L-19713-33-E-N reads as follows:


the project:

Phase I. No upstream fish passage facilities required.

Phase II. A fish lift, or other passage facilities of comparable efficiency in passing the target species, designed to pass up to 20,000 American shad, 122,000 blueback herring, and 64 Atlantic salmon annually. These facilities, which shall include a counting, trapping and sorting facility, must be operational no later than 2 years after (1) notification from the Department of Marine Resources and the Department of Inland Fisheries and wildlife, of initiation of Phase II restoration above Gambo Dam and (2) passage of at least 4,020 American shad or 24,460 blueback herring in any single year at the downstream Gambo Project.


American shad, blueback herring and Atlantic salmon at the project. These facilities shall be operational concurrent with the completion of upstream anadromous fish passage facilities at the project or within 2 years following notification by the Department of Marine Resources of sustained stocking of anadromous fish above the Dundee Dam, whichever comes first.

Department Order #L-19713-33-N-M hereby modifies Condition 5. as follows:

A. No fish passage facilities are required for the term of the FERC license issued on October 3, 2003 for the Dundee Hydroelectric Project, or for the term of any extension by amendment of that license.


STANDARD CONDITIONS OF APPROVAL TO BE ATTACHED TO HYDROPOWER PERMITS 1. Limits of Approval. Project approval is limited to and includes the proposals and plans contained in the

application and supporting documents submitted and affirmed to by the applicant. All variances from the plans and proposals contained in said documents are subject to the review and approval of the Administering Agency prior to implementation.

2. Noncompliance. Should the project be found, at any time, not to be in compliance with any of the conditions

of this approval, or should the permittee construct or operate this project in any way other than as specified in the application or supporting documents, as modified by the conditions of approval, then the terms of this approval shall be considered to have been violated.

3. Compliance with all Applicable Laws. The permittee shall secure and appropriately comply with all applicable

federal, state and local licenses, permits, authorizations, conditions, agreements, and Orders prior to or during construction and operation of the permitted project.

4. Inspection and Compliance. Authorized representatives of the Administering Agency or the Attorney General

must be granted access to the premises of the permittee at any reasonable time for the purpose of inspecting the construction or operation of the project and assuring compliance by the permittee with the conditions of this approval.

5. Initiation and Completion of Construction. If construction is not commenced within 3 years and completed

within 7 years from the date of issuance of the Authorizing Agency’s permit, this approval will lapse, unless a request for an extension of these deadlines has been approved by the Commissioner.

6. Construction Schedule. Prior to construction, the permittee shall submit a final construction schedule for the

project to the Administering Agency. 7. Approval Included in Contract Bids. A copy of the project’s approval must be included in or attached to

contract bid specifications for the project. 8. Approval Shown to Contractor. Work done by a contractor pursuant to the project’s approval may not begin

before a copy of the approval has been provided to the contractor by the permittee. 9. Notification of Project Operation. The permittee shall notify the Commissioner or Director of the

commencement of commercial operation of the project within 10 days prior to such commencement. 10. Assignment of Transfer of Approval. Written consent to transfer an approval must be applied for no later than

two weeks after the assignment or transfer of ownership of property covered by an approval under these Rules. Pending Administering Agency determination on the application for a transfer or assignment of ownership of an existing approval, the person(s) to whom such property is assigned or transferred shall bide by all of the terms and conditions of that approval and is jointly and severally liable with the original permitee for any violation of the terms and conditions thereof. To obtain the Administering Agency’s approval of transfer, the proposed assignee or transferee must demonstrate the financial capability and technical ability to (1) comply with all terms and conditions of the approval and (2) satisfy all other applicable statutory criteria. As used in this paragraph, “transfer of ownership” means a change in the legal entity that owns a project that is the subject of a permit issued pursuant to this chapter. A sale or exchange of stock (or in the case of a limited liability corporation, of membership interests), or a merger, is not a transfer of ownership for the purposes of this rule provided the legal entity that owns the project remains the same.

Effective November 2, 2017 DEPLW0430

DEP INFORMATION SHEET Appealing a Department Licensing Decision

Dated: March 2012 Contact: (207) 287-2811

SUMMARY

There are two methods available to an aggrieved person seeking to appeal a licensing decision made by the Department of Environmental Protection’s (“DEP”) Commissioner: (1) in an administrative process before the Board of Environmental Protection (“Board”); or (2) in a judicial process before Maine’s Superior Court. An aggrieved person seeking review of a licensing decision over which the Board had original jurisdiction may seek judicial review in Maine’s Superior Court.

A judicial appeal of final action by the Commissioner or the Board regarding an application for an expedited wind energy development (35-A M.R.S.A. § 3451(4)) or a general permit for an offshore wind energy demonstration project (38 M.R.S.A. § 480-HH(1)) or a general permit for a tidal energy demonstration project (38 M.R.S.A. § 636-A) must be taken to the Supreme Judicial Court sitting as the Law Court.

This INFORMATION SHEET, in conjunction with a review of the statutory and regulatory provisions referred to herein, can help a person to understand his or her rights and obligations in filing an administrative or judicial appeal. I. ADMINISTRATIVE APPEALS TO THE BOARD

LEGAL REFERENCES

The laws concerning the DEP’s Organization and Powers, 38 M.R.S.A. §§ 341-D(4) & 346, the Maine Administrative Procedure Act, 5 M.R.S.A. § 11001, and the DEP’s Rules Concerning the Processing of Applications and Other Administrative Matters (“Chapter 2”), 06-096 CMR 2 (April 1, 2003).

HOW LONG YOU HAVE TO SUBMIT AN APPEAL TO THE BOARD The Board must receive a written appeal within 30 days of the date on which the Commissioner's decision was filed with the Board. Appeals filed after 30 calendar days of the date on which the Commissioner's decision was filed with the Board will be rejected.

HOW TO SUBMIT AN APPEAL TO THE BOARD

Signed original appeal documents must be sent to: Chair, Board of Environmental Protection, c/o Department of Environmental Protection, 17 State House Station, Augusta, ME 04333-0017; faxes are acceptable for purposes of meeting the deadline when followed by the Board’s receipt of mailed original documents within five (5) working days. Receipt on a particular day must be by 5:00 PM at DEP’s offices in Augusta; materials received after 5:00 PM are not considered received until the following day. The person appealing a licensing decision must also send the DEP’s Commissioner a copy of the appeal documents and if the person appealing is not the applicant in the license proceeding at issue the applicant must also be sent a copy of the appeal documents. All of the information listed in the next section must be submitted at the time the appeal is filed. Only the extraordinary circumstances described at the end of that section will justify evidence not in the DEP’s

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record at the time of decision being added to the record for consideration by the Board as part of an appeal.

WHAT YOUR APPEAL PAPERWORK MUST CONTAIN

Appeal materials must contain the following information at the time submitted:

1. Aggrieved Status. The appeal must explain how the person filing the appeal has standing to maintain an appeal. This requires an explanation of how the person filing the appeal may suffer a particularized injury as a result of the Commissioner’s decision.

2. The findings, conclusions or conditions objected to or believed to be in error. Specific references and facts regarding the appellant’s issues with the decision must be provided in the notice of appeal.

3. The basis of the objections or challenge. If possible, specific regulations, statutes or other facts should be referenced. This may include citing omissions of relevant requirements, and errors believed to have been made in interpretations, conclusions, and relevant requirements.

4. The remedy sought. This can range from reversal of the Commissioner's decision on the license or permit to changes in specific permit conditions.

5. All the matters to be contested. The Board will limit its consideration to those arguments specifically raised in the written notice of appeal.

6. Request for hearing. The Board will hear presentations on appeals at its regularly scheduled meetings, unless a public hearing on the appeal is requested and granted. A request for public hearing on an appeal must be filed as part of the notice of appeal.

7. New or additional evidence to be offered. The Board may allow new or additional evidence, referred to as supplemental evidence, to be considered by the Board in an appeal only when the evidence is relevant and material and that the person seeking to add information to the record can show due diligence in bringing the evidence to the DEP’s attention at the earliest possible time in the licensing process or that the evidence itself is newly discovered and could not have been presented earlier in the process. Specific requirements for additional evidence are found in Chapter 2.

OTHER CONSIDERATIONS IN APPEALING A DECISION TO THE BOARD

1. Be familiar with all relevant material in the DEP record. A license application file is public information, subject to any applicable statutory exceptions, made easily accessible by DEP. Upon request, the DEP will make the material available during normal working hours, provide space to review the file, and provide opportunity for photocopying materials. There is a charge for copies or copying services.

2. Be familiar with the regulations and laws under which the application was processed, and the procedural rules governing your appeal. DEP staff will provide this information on request and answer questions regarding applicable requirements.

3. The filing of an appeal does not operate as a stay to any decision. If a license has been granted and it has been appealed the license normally remains in effect pending the processing of the appeal. A license holder may proceed with a project pending the outcome of an appeal but the license holder runs the risk of the decision being reversed or modified as a result of the appeal.

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WHAT TO EXPECT ONCE YOU FILE A TIMELY APPEAL WITH THE BOARD

The Board will formally acknowledge receipt of an appeal, including the name of the DEP project manager assigned to the specific appeal. The notice of appeal, any materials accepted by the Board Chair as supplementary evidence, and any materials submitted in response to the appeal will be sent to Board members with a recommendation from DEP staff. Persons filing appeals and interested persons are notified in advance of the date set for Board consideration of an appeal or request for public hearing. With or without holding a public hearing, the Board may affirm, amend, or reverse a Commissioner decision or remand the matter to the Commissioner for further proceedings. The Board will notify the appellant, a license holder, and interested persons of its decision.

II. JUDICIAL APPEALS

Maine law generally allows aggrieved persons to appeal final Commissioner or Board licensing decisions to Maine’s Superior Court, see 38 M.R.S.A. § 346(1); 06-096 CMR 2; 5 M.R.S.A. § 11001; & M.R. Civ. P 80C. A party’s appeal must be filed with the Superior Court within 30 days of receipt of notice of the Board’s or the Commissioner’s decision. For any other person, an appeal must be filed within 40 days of the date the decision was rendered. Failure to file a timely appeal will result in the Board’s or the Commissioner’s decision becoming final.

An appeal to court of a license decision regarding an expedited wind energy development, a general permit for an offshore wind energy demonstration project, or a general permit for a tidal energy demonstration project may only be taken directly to the Maine Supreme Judicial Court. See 38 M.R.S.A. § 346(4).

Maine’s Administrative Procedure Act, DEP statutes governing a particular matter, and the Maine Rules of Civil Procedure must be consulted for the substantive and procedural details applicable to judicial appeals.

ADDITIONAL INFORMATION

If you have questions or need additional information on the appeal process, for administrative appeals contact the Board’s Executive Analyst at (207) 287-2452 or for judicial appeals contact the court clerk’s office in which your appeal will be filed. Note: The DEP provides this INFORMATION SHEET for general guidance only; it is not intended

for use as a legal reference. Maine law governs an appellant’s rights.

Documents

STATE OF MAINE DEPARTMENT OF ENVIRONMENTAL ......Maine Waterway Development and Conservation Act, 38 M.R.S. 630–637, the Administrative Regulations For Hydropower Projects , 06-096