August 1, 2014

Crooked River

Crooked River Dam Proposal Under Review:

Crooked RiverMaine Rivers is advocating against a proposed dam on the Crooked River.  We urge Maine’s DEP to again deny the application submitted by Scribner’s Mill Preservation, Inc.  The landlocked salmon population supported by the Crooked River is extremely valuable, economically and ecologically.  The Crooked River is Sebago Lake’s largest tributary and provides critical habitat for spawning and juvenile native landlocked salmon.  The Crooked River supports virtually all of Sebago Lake’s wild salmon production.  This indigenous population of landlocked salmon is significant because it is one of only four in the State of Maine, and has been used for restoring landlocked salmon populations in other parts of the world.

Why protect the Crooked River?

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1. The Crooked River is an extremely valuable resource for the entire state of Maine. It is the largest tributary to Sebago Lake and provides virtually all of the spawning habitat for wild landlocked salmon in the lake. Sebago Lake is famed for this fishery and supports nearly 40,000 angler days per year. Sebago Lake is one of only four watersheds that originally supported native landlocked salmon in Maine (the others are Green Lake, Sebec Lake, and West Grand Lake). Landlocked salmon were first discovered in Sebago Lake, and take their scientific name, Salmo salar sebago, from the lake.

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2. After years of effort by the Maine Department of Inland Fisheries and Wildlife, Sebago’s wild salmon population has been greatly enhanced, and wild salmon comprise more than half the population in most years. In particular, the fishery improved dramatically since a dam was partially removed at Scribner’s Mill in 1972 and another partially removed at Bolster’s Mill in 1987 and 1988. A new dam at Scribner’s mills will negatively impact both landlocked salmon adults as they migrate upstream to spawn and smolts as they return to Sebago Lake.

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3. The river provides 40% of the surface inflow to Sebago Lake, which is the drinking water source for the Portland Water District (PWD) and about 15% of Maine’s population. There are about 50,000 public water supplies in the United States. Fewer than 50 of them have received a waiver to the filtration requirements of the federal Safe Drinking Water Act, and the Portland Water District (PWD) is one of these . This waiver is only permitted for a system with (a) exceptional water quality and (b) a demonstrably strong watershed control program to prevent a diminishment of water quality.

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4. The cost to build a filtration plant to serve the Portland Water District’s system is about $70 million, and millions more per year to operate if the PWD loses it filtration waivers. Portland Water District has to do everything it can to protect water quality in Sebago Lake and the Crooked River. Damming the river could lower water quality by increasing algae production, erosion, and temperature. Even a small change in water quality could affect “sensitive users” of water from Sebago Lake, such as dialysis clinics or high-tech manufacturers. Thus, the Portland Water District  has opposed damming the Crooked River.

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5. According to Maine law, any dam construction or removal must show public benefits, including benefits to employment. Maine’s Department of Environmental Protection noted in its denial of the previous permit application to dam the Crooked River that the applicant clearly failed to provide evidence of public economic benefits associated with the construction of a dam that could not be obtained through use of electricity to run the mill from other sources. The applicant has provided no further evidence in its current application that building a dam will result in any employment benefit above using available electrical power to run its sawmill.

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6. There is simply no reason to build a dam to run this sawmill. There are too many other alternatives available to damming one of the most valuable free-flowing rivers in Maine.

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The Legislature recently confirmed that value of the free flowing nature of this river by upgrading it to AA along its entire length.

Some Background

On March 18th, 2010 the Superior Court sustained the Maine Board of Environmental Protection (BEP) issued an Order denying the application of Scribner’s Mill Preservation, Inc. (SMPI) to build a hydro-mechanical dam at an old site at Scribner’s Mill on the Crooked River. The old dam had been removed in 1972.

The Crooked River was identified in the 1982 Maine Rivers Study as one of only seven rivers in Maine that are “the state’s most significant inland fishery rivers”. It is the only one in the southern part of the state. The 1983 Rivers Act designated the Crooked River as worthy of special protection because of its value as a fishery resource. The Crooked River is the principal spawning tributary for the unique indigenous landlocked salmon of Sebago Lake, one of only four such populations native to Maine. In addition, Sebago Lake is the drinking water supply for the Portland Water District.

The heart of the BEP order denying the application states that the harm to the fishery resources of the Crooked River, including adverse impact on existing upstream passage and spawning and nursery habitat, outweighs the benefit of a dam to furnish water-power for restoration of a historic sawmill, and that the unique fishery resource is too important to put at risk.

SMPI then filed an appeal to the Maine Superior Court. The Portland law firm Verrill & Dana represented SMPI.

SMPI made a wholesale attack on the BEP Order, arguing that the BEP misinterpreted the statute governing dam construction, improperly relied on information concerning the fishery values of the Crooked River furnished by the Maine Department of Inland Fisheries and Wildlife, which SMPI characterized as distorted and prejudiced, and failed to give proper weight to economic values of its proposed historical recreation of a 19th century water-powered sawmill.

The State of Maine, by Janet Mills, Attorney General, and Lucinda E. White and Janet M. McClintock, Assistant Attorneys General, filed a brief in support of the BEP decision. The brief is a model of legal analysis, and thoroughly and cogently addresses and refutes each of SMPI’s claims.

Maine Rivers and several other groups – The Natural Resources Council of Maine, Maine Council of Trout Unlimited, Friends of the Presumpscot River, Lakes Environmental Association, The Maine Congress of Lake Associations, Sebago Lake Anglers Association, Western Foothills Land Trust and four individuals, are represented by David Swetnam-Burland and Stacy O. Stitham of the Lewiston law firm Brann & Isaacson.

They filed an Amicus Curiae (Friend of the Court) brief in the proceedings. The brief points out that: “Despite SMPI’s hyperbolic arguments that the Department and Board have been hijacked by the Maine Department of Inland Fisheries and Wildlife, and that the Board used an improper alternative use analysis in balancing the environmental and energy considerations, SMPI offers no affirmative argument or proof that the dam project will provide reasonable assurance that the project will not violate applicable state water quality standards.”

The brief further states that “…the Board was right to conclude that the economic benefits of the proposed dam were speculative, while the environmental harms to a vital natural and recreational resource – the indigenous population of landlocked salmon – were certain…”.

The Court Order sustains the BEP Order on all points. At press time, it is not known whether SMPI will appeal to the Maine Supreme Judicial Court.

Regardless of the ultimate outcome, SMPI has also filed a new application with DEP to build a somewhat less intrusive (but still harmful) dam. This proceeding is on hold pending the outcome of the court proceedings.

So the future fate of the indigenous landlocked salmon of the Crooked River – Sebago Lake ecosystem still hangs in the balance.

CROOKED RIVER DAM APPEAL DENIED

On April 16, 2009, the Maine Board of Environmental Protection (MBEP) rejected the appeal by Scribner’s Mill Preservation, Inc. (SMPI) from the December 31, 2008 order by the Department of Environmental Protection (MDEP) denying an application for a permit to construct a hydro-mechanical dam at Scribner’s Mill on the Crooked River, and affirmed the MDEP order.

The Crooked River is the principal spawning tributary for the unique indigenous land-locked salmon of Sebago Lake, one of only four such populations in Maine. More than 70% of the wild fish in Sebago are spawned in the river.  Sixty five per cent of the spawning and nursery habitat is upstream of Scribner’s Mill, the site of a dam that furnished water power to run a sawmill from 1849 to 1962 when the mill ceased operation.

The Crooked River was identified in the 1982 Maine Rivers Study as one of only seven rivers in Maine that are “the state’s most significant inland fishery rivers.” It is the only one in the southern part of the state. The 1983 Rivers Act designated the Crooked River as worthy of special protection because of its value as a fishery resource.

In 1972 the dam at Scribner’s Mill was removed. Three years later the site was acquired by Scribner’s Mill Preservation, Inc (SMPI) whose principals are John and Marilyn Hatch. Their goal has been to restore the mill as an educational exhibition of the water powered industrial technology that pre-dates fossil fuels. An application to MDEP to rebuild the dam was filed in 2002.  In 2007 a revised application was filed. It called for reconstruction of the dam with a rock ramp fishway, and an 11 acre impoundment extending upstream for a mile.

Studies conducted for the applicant showed that mature landlocked salmon could make use of the fishway, but there would be a severe reduction in the ability of juvenile salmon to migrate upstream because of water velocity.  Also, the impoundment would destroy existing salmon spawning and nursery habitat, at the same time improving habitat for such warm water predator species as small-mouth bass and pickerel.

Francis Brautigam, Regional Fishery Biologist for the Maine Department of Inland Fisheries and Wildlife (MDIFW) filed comments opposing reconstruction of the dam with MDEP. Maine Rivers, NRCM and 9 other non-governmental organizations also filed comments opposing reconstruction of the dam. All pointed out the prospective damage to the Sebago Lake salmon fishery as their reason.

Both the Departmental and Board orders denying the application conclude that the unique fishery resource is too important to put at risk, and that the prospect of harm from the dam outweighs the benefit of a historic water-powered sawmill.

SMPI has alternative options for powering its sawmill. The opponents of the dam do not oppose the reconstruction of the historic site, only the damage to the even more historic population of indigenous landlocked salmon.

In the March, 2009 issue of Fly Rod and Reel, environmental writer Ted Williams quoted a conversation he had with Marilyn Hatch, which led to his comment that the dam proponents have a “vast and impressive misunderstanding of fish.”

That observation was borne out by the presentation made for SMPI to MBEP in support of the appeal. Scott Hatch, son of John and Marilyn, attacked the MDIFW comments in many particulars, but totally missed the point that it is the overall impact on the ecosystem formed by the Crooked River and Sebago Lake, not the square yards of spawning and nursery habitat in the area of the proposed impoundment, that underlie MDIFW’s concern and MDEP’s order.

The SMPI application was a real test of the 1983 Rivers Act. It is gratifying to know that the process works. As Dana Murch, the Dams and Hydropower Supervisor in the MDEP Bureau of Land and Water Quality pointed out to the MBEP during consideration of SMPI’s appeal, a similar application for a dam in many other rivers might have been successful; but when the balancing tests of the statute were applied, the unique fishery resource was recognized as being of paramount importance.

In a separate but related proceeding, the Water Quality Reclassification bill reported out of Committee to the Maine Legislature upgrades the segment of the Crooked River at Scribner’s Mill from its existing classification as A to AA, the highest classification. No dams are permitted for AA waters. The rest of the Crooked River is already classified as AA.