Opposition to LD 1687, An Act Regarding the Water Quality Certification of Graham Lake on the Union River

Senator Carson, Representative Tucker, and distinguished members of the Environment and Natural Resources Committee:

My name is Nick Bennett, and I am the Staff Scientist for the Natural Resources Council of Maine (NRCM). NRCM is Maine’s largest environmental advocacy group with more than 20,000 members and supporters. I am testifying in opposition to LD 1687.

Testifying in opposition to this bill is awkward. NRCM is aware of the problems with fish passage at the Union River Dam in Ellsworth, including significant fish kills. We are also aware of the problems with the owner of the two dams at issue in this bill, Brookfield, drawing down Graham Lake extensively. This has caused a lot of misery for property owners around the lake. We understand the frustration that many feel with the Federal Energy Regulatory Commission (FERC) process for licensing the Union River dams and dams in general.

However, this bill is unlikely to help solve any of the problems at issue for the following reasons:

1. This is a FERC license proceeding. FERC has jurisdiction over the two dams at issue in this bill, and they will set the license conditions. As NRCM understands it, federal law trumps state law under these circumstances.
2. It is not a good idea to declare in statute that a drawdown of four feet in Graham Lake meets state water quality standards. It may not meet state water quality standards, and NRCM is not aware of any studies that show that it would meet water quality standards.
3. NRCM’s understanding of 401 certificates is that they last for the life of a license. They become part of a federal license. We do not believe that the Department of Environmental Protection (DEP) can revoke a 401 certificate once issued, as this bill could require DEP to do.
4. LD 1687 appears to require a Use Attainability Analysis (UAA) in a manner that is inconsistent with past UAAs with which we are familiar. UAAs are meant to be a last resort. They allow the lowering of water quality standards only when they are impossible to meet or when meeting them would cause widespread social and economic harm (40 CFR 131.10(g)). Typically, it takes a great deal of study by DEP to reach a conclusion that a UAA is necessary. The Board of Environmental Protection must then approve a UAA as must the Legislature. Finally, the U.S. Environmental Protection Agency must also approve it. This bill does not refer to data necessary to support a UAA nor does it appear to recognize the many steps a UAA requires.
5. The bill allows 10 years for fish passage construction that should take much less time to build and contains no performance standards for that fish passage.

In closing, we agree that there are many problems that need addressing on at the Union River and Graham Lake, including fish kills, poor fish passage, and excessive drawdowns. However, NRCM believes that this bill would not adequately address those problems if enacted. There may be a way for the Legislature to weigh in constructively on the FERC licensing process for the Union River, but it is not easy for state legislatures to influence FERC licensing processes. LD 1687 seems unlikely to help and may set precedents that its proponents regret. These include legislating that certain drawdown levels comply with water quality standards without evidence and legislating a 10-year timetable for fish passage that should take much less time to build. For these reasons, NRCM opposes LD 1687.

Thank you for the opportunity to testify. I would be happy to answer any questions.