EPA Called to Rule on Presumpscot River Fish Passage Prohibition

STANDISH, ME—The Friends of Sebago Lake (FOSL) and Friends of Merrymeeting Bay (FOMB) are demanding Maine’s Dept. of Environmental Protection seek federal EPA approval before considering a dam owner’s proposal to block passage of salmon, American shad and river herring on southern Maine’s Presumpscot River, outlet of Sebago Lake, Maine’s second largest lake.

The two affected dams, at Gambo Falls and Dundee Falls located in Windham and Gorham, Maine are several miles below Sebago Lake and 15 miles above Casco Bay in Portland. According to sworn testimony by scientists with the Maine Dept. of Marine Resources, more than 65 percent of the sea-run fish habitat in the Presumpscot River alone (not including Sebago and its tributaries), lies above Gambo Dam -- now proposed as the upper limit of migratory fish passage. The dam owner, South African Pulp and Paper (SAPPI), has submitted applications seeking permanent State prohibition on fish passage at the dams. The Maine DEP issued a draft Order on Sept. 11, 2018 supporting the request.

In response, Friends of Sebago Lake and Friends of Merrymeeting Bay have demanded the State seek and receive federal review and approval for this action. Under the U.S. Clean Water Act (CWA), the federal EPA (Environmental Protection Agency) is required to make final determinations on state decisions prohibiting native fish passage at federally licensed hydro-electric dams. A second Draft order issued on Sept. 27, 2018 rejected the group’s comments.

“The DEP Draft Order and comments of the dam owner cannot be more explicit: they want to legally prohibit passage of native fish on the Presumpscot River in perpetuity, “ said Roger Wheeler of Standish, Maine, president of the Friends of Sebago Lake. “The U.S. Clean Water Act and U.S. Supreme Court rulings on the Presumpscot River say this is against the law.”

Ed Friedman of Bowdoinham, Maine, chair of Friends of Merrymeeting Bay, said the Presumpscot issue is identical to that on the St. Croix River in eastern Maine, where a 1995 Maine law banned the passage of native, sea-run alewives and river herring at the Grand Falls Dam on the U.S.-Canada border. After a finding by EPA that the law violated our Clean Water Act, the Maine Legislature removed fish passage prohibition in 2013. Fish returns on the St. Croix since then have climbed steadily hitting record numbers in 2018, with more than 250,000 river herring and more than 150 American shad, from nearly zero 10 years ago.

“The issue on the Presumpscot today is no different than on the St. Croix River in 2013,” Friedman said. “The Clean Water Act clearly says the State of Maine cannot use the CWA to legally block passage of native fish on Maine Rivers. The St. Croix is proof when historic habitat is reopened, fish will likely return.”

The Presumpscot River in Portland was until 2000 considered the most polluted river in New England. Its recovery began in 1999 with the closure of SAPPI’s pulp-making factory in Westbrook which had so impaired water quality, the river below it was unable to support fish. In 2002, the Smelt Hill Dam, at the mouth of the river was removed, allowing native salmon, shad and river herring to freely migrate up the river for the first time since 1738.

At issue today are standing legal requirements for SAPPI to build fishways at its five hydro-electric dams on the river from Westbrook to Gorham. The instant matter before the Maine DEP is an application by SAPPI to remove fishway requirements at its Gambo and Dundee Dams, which are essential to restoring fish passage to Sebago Lake and the numerous lakes above it, including Long Lake in Naples, and the Crooked River, which stretches to Bethel, Maine. FOSL and FOMB are represented in the case by Green Justice Legal of New Orleans, Louisiana.