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release papers North America

Westbrook Operations

June 6, 2011 S.D. Warren Company

89 Cumberland Street Ms. Kimberly D. Bose P.O. Box 5000

Secretary Westbrook, ME 04098

Federal Energy Regulatory Commission 888 First Street, NE

Brad Goulet Washington, DC 20426 Direct tel +1 207 856 4083

Direct fax +1 207 856 4456

RE: Eel Weir Project, FERC Project No. 2984-ME [email protected]

Supplement to Application

Dear Ms. Bose:

On May 26, 2011, S. D. Warren Company (Warren) filed a Supplement to its Application for New License for the Eel Weir Project (FERC Project No. 2984). That Supplement included a request that the Commission adopt modifications to the Sebago Lake Level Management Plan ("LLMP") as described in the Supplement and on a chart attached in Appendix A to the Supplement. Subsequent to the filing of the Supplement, Warren was asked by a resource agency to clarify the proposed modified LLMP as to water distribution between the bypass reach and the Canal. Warren confirms that under the proposed modified LLMP it would first direct flows to the bypass to fulfill minimum bypass flow requirements under the FERC License and the Water Quality Certification. Warren would then direct flows (i.e., above the required minimum bypass flow) to the Canal, up to 65,000 cfm (1083 cfs). Any remaining flows (i.e., above the required minimum bypass flow plus 65,000 cfm) would be directed to the bypass.

Accordingly, Warren hereby submits revised pages to the Supplement and a revised chart for Appendix A to the Supplement, confirming this clarification. For convenience, Warren is also herby submitting a complete updated Supplement. A copy of the updated Supplement (containing the revised pages and revised chart/Appendix A) is being circulated to all persons who were sent a copy of the original Supplement on May 26, 2011. If there are any questions about this clarification of the proposed modified LLMP, please contact the undersigned at (207) 856-4083.

Sincerely,

.b-tetcl &/tilLt- Brad Goulet Hydro Manager

Ends. cc: All parties as listed on the service/distribution list

attached to the May 27, 2011 Supplement (w/ encl.)

UNITED STATES OF AMERICA BEFORE THE

FEDERAL ENERGY REGULATORY COMMISSION

S. D. Warren Company 1 Project No. 2984

SUPPLEMENT TO APPLICATION FOR NEW LICENSE FOR EXISTING MAJOR WATERPOWER PROJECT UNDER 5 MW

Pursuant to Section 4.35 of the Commission's Regulations (18 CFR 5 4.39,

S. D. Warren Company ("Warren") hereby submits this supplement to its Application for

a New License for the Eel Weir Project (FERC Project No. 2984) ("Application") to

request that the Commission adopt revisions to the Sebago Lake Level Management Plan

("LLMP") including modified reporting requirements as set forth herein, and to request

confirmation that no further wetlands studies at Sebago Lake ("Lake") in connection with

the LLMP are required. As discussed below, this Supplement does not propose a

material change in the Project's operations as proposed in the Application.

Further, Warren reiterates its prior requests that the current bypass minimum flow

levels under the existing License be retained, that Warren not be required to implement a

shoreline permitting program for the Lake, and that a new shallow boat launch not be

required in the Sebago Lake Basin area near the Project facilities.

I.

Background and Updated Contact Information

The Eel Weir Project, initially licensed by the Commission in 1984l ("License"),

is located at the base of the Lake and at the head of the Presumpscot River ("River").

The Project includes a dam constructed in the late 1 8701s, a power canal leading to the

I S. D. Warren Company, "Order Issuing License (Major)," 26 FERC 62,241 (1984).

Project powerhouse, and a bypass reach in which a cold-water fishery has been

established.

Please update the contact information for this Application and the Eel Weir

Project generally to substitute the following person as the primary contact:

Brad Goulet Hydro ManagerIUtilities Engineer S. D. Warren Company 89 Cumberland Street Westbrook, Maine 04098 207-856-4083 [email protected]

In addition, please change the names and addresses of contact persons for the purposes of

communication and correspondence with respect to this Application and the Eel Weir

Project generally to the following (removing all other Warren contacts listed):

Brad Goulet* Briana O'Regan Hydro ManagerIUtilities Engineer Assistant General Counsel S. D. Warren Company Sappi Fine Paper North America 89 Cumberland Street 179 John Roberts Road Westbrook, Maine 04098 South Portland, Maine 04 106 207-856-4083 207-856-3830 [email protected] Briana.O'[email protected]

Nancy J. Skancke* Law Offices of GKRSE 1500 K St., N.W. Suite 330 Washington, D.C. 20005 202-408-5400 nj [email protected]

Maureen Winters Principal Regulatory Specialist Normandeau Associates 917 Route 12, #1 Westmoreland, New Hampshire 03467 603-355-2333 [email protected]

*I To be designated on the Commission's official service list for this Project. -

Revisions to the LLMP are in the Public Interest and No Additional Wetlands Studies at the Lake are Needed.

Warren has proposed certain modifications to the LLMP in its Application and in

subsequent communications with the Commission. By this Supplement, Warren requests

that the Commission adopt revisions to the LLMP, as outlined on the chart attached in

Appendix A to this Supplement, which reflects nearly a decade and a half of operations

under the existing LLMP and significant input from Federal and State resource agencies

and other stakeholders. In addition, given the analysis that has already been done in

connection with operations under the LLMP, no further wetlands studies are needed.

A. Background

The history of the development of the LLMP has been documented in prior

Commission orderse2 The Eel Weir Project License originally contained no requirements

for managing the level of Sebago ~ a k e . ~ The Lake is twelve miles long and about eight

miles wide with an area of approximately 45.6 square miles or 29,184 surface acres, and

a watershed of approximately ten times the size of the Lake. As affirmed by the

Commission in 1994, the Lake is used for a variety of purposes - for "power generation,

municipal and local water supply, protection of fish and wildlife in the lake and its

associated wetlands, and boating, swimming, and other recreational activities connected

to the lake."4

Following extended discussions with resource agencies and stakeholders, a

proposed plan for managing the Lake level was filed with the Commission with the stated

goal of recognizing the differing interests at and downstream of the Lake, including

2 See, S. D. Warren Company, "Order Approving Settlement and Amending License," 79 FERC 7 61,064, on rehearing 80 FERC 7 61,207 (1 997) ("1 997 Order"). See also, S. D. Warren Company, "Order Amending Lake Level Management Plan," 92 FERC f j 62,180 (2000), on rehearing 94 FERC 7 61,034 (2001).

S. D. Warren Company, "Order on Complaints," 68 FERC 7 61,2 13 at 62,O2 1 (1 994). Id. at 62,022.

recreation, fishing, public safety (downstream), and power generation. By order issued

April 2 1, 1997, the Commission approved the proposed LLMP, describing it as providing

a balance of the interests of the numerous parties a f f e ~ t e d . ~ Several minor modifications

to the LLMP were approved in August 2 0 0 0 ~ and in January 2001 .7

Under the existing LLMP Warren is directed to manage outflows from the Lake

through the Eel Weir Project to achieve specified target lake elevations and to remain

within specified target ranges of lake elevations for different seasons, with specific

Operating Parameters (describing "Normal" and "Abnormal" conditions and actions to be

taken).' In addition to the requirements under the LLMP based on lake elevations, under

the LLMP Warren is also to manage outflows under specific Operating Parameters, and is

to minimize duration of releases into the Project bypass above 4500 cfm (75 cfs) from

April 1 St to July lSt and September 1'' to November 1" to permit fishability of the bypass

79 FERC 7 61,064 at 61,311 and 61,316-17. 92 FERC 7 62,180. 94 FERC 7 61,034.

' More specifically, the LLMP directs Warren to manage the outflows from the Lake to achieve a full lake (target level of 266.65 ft. msl) no sooner than May lSt and no later than the second week in June, with a target line defined under the LLMP for the period January 1 St until May 1 ". From May 1 St forward Warren is to manage the outflows to remain within a target range (with a minimum target line and a maximum target line) and to achieve a target point of 265.17 ft. rnsl on August 1 " (with no variance). After that August lSt target point, Warren is to manage the outflows to remain within a defined target range (with a minimum target line and a maximum target line, different than the target lines earlier in the year) and to have the lake elevation no hi her than 265 ft, rnsl as a of September 1 " and no higher than 263.3 ft. rnsl as of October 15 , while moving toward a target for November 1" of 262.5 ft. rnsl +I- 0.5 ft.

From November 1 St to the following May 1 ", Warren is to manage the outflows whenever possible to achieve a lake elevation no higher than a line drawn from 263.0 ft. rnsl on November lSt to 263.5 ft. rnsl on January lSt and from 263.5 ft. rnsl on January 1 st

to 266.65 ft. rnsl on May lSt. Further, in two (2) out of nine (9) years Warren is to manage outflows to achieve a target point of 261 .O ft. msl or lower sometime between November 1 and December 3 1" (with a waiver of the November 1 St target point in such a low-lake year).

reach. Furthermore, under the LLMP Warren is to cap outflows at 60,000 cfm (1 000 cfs)

from mid-October to mid-November to accommodate salmon spawning season unless the

lake elevation is above the target range and is rising.

In its Application, Warren proposed several modifications to the LLMP, including

the removal of the 2-in-9 year low-lake requirement, a modification to the November lSt

target point, and the addition of a tolerance around the August IS' target point. Comments

were filed by resources agencies and other stakeholders in response to Warren's proposed

modifications to the LLMP. On November 29,2005, the Commission Staff issued its

Final Environmental Assessment ("FEA") for the Eel Weir Project relicensing. The FEA

accepted Warren's proposal for a tolerance around the August 1'' target point. In

addition, the FEA acknowledged Warren's proposal to lower the November 1'' target

point to 262.0 ft. msl and the State's concurrence. However, the FEA recommended

continuing the 2-in-9 year low-lake level protocol and also recommended requiring

minimum lake elevations during the January to March period, and reducing the full pond

level permitted in the spring.

Since Warren's filing of the Application and issuance of the FEA, stakeholders

have made filings periodically requesting that the Commission modify the provisions of

the LLMP. In addition, Warren, the Commission, resource agencies, and stakeholders

have now had nearly 14 years of experience under the LLMP (i. e., since 1997).

The proposed modifications to the LLMP as set forth in this Supplement do not

constitute a "material change" to the Application under Sections 5.27(c) and 4.35(f) of

the Commission's Regulations [I8 CFR $ 5 5.27(c) and 4.35(f)]. The proposed revisions

to the LLMP are not fundamental or significant to the manner in which Warren has

proposed to operate the Project in its Application -there is no change in the capacity of

the Project, no change in the location/size/composition of the Project features, and no

change in the status or identity of the applicant.

The goals of the existing LLMP are maintained in the proposed modified LLMP.

The existing LLMP sets forth parameters by which Warren shall manage outflows from

the Lake, as does the proposed modification to the LLMP set forth in this Supplement.

The existing LLMP directs Warren to avoid filling the Lake before May lSt and directs

Warren to seek to fill the Lake by mid-June - as does the proposed modified LLMP set

forth herein. Further, the existing LLMP directs Warren to limit outflows during the fall

salmon spawning season, and to minimize duration of releases into the Project bypass -

as does the proposed modified LLMP. The change from a target pointlrange framework

in the existing LLMP to an outflow range framework under the proposed revised LLMP

does not make a material difference in Lake management within the concept of Sections

5.27(c) and 4.35(f) of the Commission's Regulations.

B. Proposed Revisions to the LLMP are in the Public Interest.

Based on experience operating under the existing LLMP and input from resource

agencies and stakeholders, Warren hereby proposes modifying the LLMP under the New

License to be a flow-based regime. Warren believes these modifications will be

beneficial to interests at the Lake and downstream on the River. Further, Warren believes

that the modified reporting requirements proposed in this Supplement will provide

sufficient basis on which the Commission can monitor Warren's compliance with the

revised LLMP.

1. Proposed LLMP Modifications

As recognized by the Commission, there are very diverse interests in and around

Sebago Lake that are affected by the implementation of the LLMP. Some of the

constituents of those interests are more vocal than others; however, all of the constituents

on the Lake hold strong positions on how the Lake should be managed to benefit their

specific interests. The challenge is to ensure that there is a balance in the interests on the

Lake, at the same time to allow the Eel Weir Project (and the other hydro projects

downstream on the Presumpscot River) to provide clean, renewable energy.

Based on its experience in operating under the LLMP since 1997, Warren

believes that the proposed flow-based regime for the LLMP, as set forth in this

Supplement and specifically set out in the chart attached in Appendix A, would be more

beneficial than the LLMP provisions currently in place. Under this proposal, in summary

Warren would maintain normal outflows within a specified range during specific time

frames with adjustments outside the specified normal outflow ranges if the Lake is at or

above 266.65 ft. msl (i.e., high lake level) or is at or below 262 ft. msl (i.e., low lake

level). Warren would continue to work to achieve a full pond of 266.0 ft. msl between

May 1 and June 1 5th. Further, Warren would continue to minimize duration of releases

into the bypass of above 4500 cfm (75 cfs) to accommodate the existing very successful

fishery in the bypass, except when it is necessary for Warren to increase outflows above

the normal levels to address very high lake levels.

Specifically under the revised LLMP, for most of the year the normal range for

outflows from the Eel Weir Project would be between 30,000 to 70,000 cfm (500 to 1167

cfs) and would only deviate from that range when the lake is very high (i.e., at or above

266.65 ft. msl, the spillway crest) or when the lake is very low (ie., at or below 262 ft.

msl). Exceptions to this framework would be for the June 1 6'h to October 1 jth period

when the normal outflow range would be 24,500 to 60,000 cfrn (408 to 1000 cfs) to help

maintain the Lake at relatively high levels to accommodate boating interests and for the

October 1 6 ' ~ to November 1 5th period when the upper limit of the normal range would be

capped at 60,000 cfrn (1000 cfs) for salmon spawning season. Project outflows are the

combination of flows into the Canal and into the bypass.

In the spring, the normal minimum outflows of 30,000 cfrn (500 cfs) should

permit filling the Lake by mid-June (responding to dry years and where there is limited or

no snow melt going into the spring freshette) to support boating activities. As noted

above, reducing the normal minimum outflow for the period June 1 6th through October

1 jth to 24,500 cfrn (408 cfs) should maintain the Lake at a level that supports boating

interests on the Lake, while assisting Warren in addressing dissolved oxygen (DO)

concentrations downstream on the River.

In the spring, the normal maximum outflow of 70,000 cfrn (1 167 cfs) should

better avoid overfilling of the Lake during the spring freshette. In addition, the normal

maximum outflow of 70,000 cfrn (1 167 cfs) from November 1 6th through December 3 1 st

should allow Warren to respond to drawdowns from Brandy Pond and Long Lake

(feeding into the Lake). Further, the normal maximum outflow of 70,000 cfrn (1 167 cfs)

should give Warren the ability to prepare for subsequent reductions in outflows to

facilitate maintenance, or construction of fish facilities, at its projects downstream on the

River as those are required in the future (as provided under the Exceptions Provision of

the new Operating Parameters).

As indicated above, the normal outflows would be modified when the Lake is

very high or very low. Specifically, when the Lake is very high (i.e., at or above the

266.65 ft. rnsl), during the beginning and end of the year (from January lSt through June

1 5th and from November 1 6th through December 3 1'') Warren would increase outflows to

within a range of 70,000 to 90,000 cfm (1 167 to 1500 cfs), and during the middle of the

year (from June 1 6th through November 1 5th) Warren would increase outflows to within a

range of 60,000 to 90,000 cfm (1000 to 1500 cfs). During these very high lake periods

Warren would consult with the State resource agencies on potentially increasing the

outflows above the maximum specified to address extended high lake levels. When the

Lake is very low (i.e., at or below 262 ft. rnsl), Warren would decrease and maintain

outflows at 24,500 (408 cfs).

In further support of this revised flow regime, as outlined on the chart attached in

Appendix A, the following Operating Parameters would replace the existing provisions

(including removal of the existing LLMP provisions on "Normal Flows" and "Abnormal

Flows"):

Flows: Project outflows are the combination of flows into the Canal and the bypass. Flows will first be directed to the bypass to fulfill minimum bypass flow requirements under the FERC License and the Water Quality Certification; second, flows will be directed to the Canal up to 65,000 cfm (1083 cfs); and the remaining flows will be directed to the bypass. Warren would not make more than one change in outflows in any one calendar week of a total of more than 20,000 cfm (333 cfs), except if the Lake is above 266.5 ft. msl or if Warren believes it is necessary to adjust outflows more often to avoid exceeding the 266.65 ft. msl level or going below the 262 ft. msl level. If the lake level reaches 267.0 ft. msl or above, Warren shall be able to increase outflows above the maximum specified if necessary to reduce the lake level to 266.65 ft. msl.

Monitoring. Lake levels would continue to be monitored using an approved U.S.G.S. gage to be read remotely at least once a day, with the readings published by the U.S.G.S. For the purpose of confirming compliance with the LLMP, U.S.G.S.'s provisional average daily reading of the Lake level would be used.

Exceptions. Warren would be permitted to adjust outflows temporarily outside the range under the LLMP in the event of equipment failure, approved maintenance activities or construction of

fish passage facilities at Warren's hydro projects on the River, power supply emergencies, downstream flooding, public safety considerations, existing or predicted extreme meteorological events (including abnormal storm events and drought), or by order of local, State or Federal authorities.

Reporting would be covered by Warren's annual operations and flow compliance report.

Warren would anticipate seeking to maintain approximately the middle of the

normal outflow ranges (i. e., the "average") under the proposed revised LLMP - which

would enable Warren to maximize energy production at its Eel Weir Project and at the

other hydro projects downstream on the River, while at the same time accommodating

environmental and recreational concerns. Attached in Appendix B hereto is a graph that

shows the impact of the proposed revised LLMP on lake level based on ten years of data

from 200 1 through 20 10 ("Graph"). The Graph uses the actual ten-year average for

January lSt as the starting point, and then applies the parameters of the proposed revised

LLMP's low, high or average outflow ranges to the historical ten-year average Lake level

data. Although Warren would never actually operate the Lake under the low, high or

average outflow ranges for the entire year, the Graph demonstrates that the proposed flow

ranges would allow the Lake to be managed to accomplish a lake level curve that closely

matches the historic ten-year average. In other words, operating the Lake under a flow-

based regime as proposed in this Supplement can result in a similar lake level curve as

was accomplished in the past, while providing added benefits in terms of bypass and

downstream flows that are more protective of aquatic resources and water quality, and

provide increased generation at hydro stations downstream on the River

Warren believes that this proposed revised LLMP addresses the issues and

comments of the resource agencies and stakeholders, including addressing concerns

previously raised by certain stakeholders of the impact of what they have called

'abnormal' high flows and swings in flows. This proposed revised LLMP would also

better enable Warren to seek to maximize power generation (recognizing this valuable

renewable resource) and would be easier to implement.

Under the proposed revised LLMP there would be no requirement for Warren to

attempt to achieve 261.0 ft. msl lake level in two (2) out of nine (9) years. Warren has

never supported maintaining that requirement. Initially in this proceeding Warren

indicated it was willing to seek to achieve that 2-in-9-year low lake level if: (i) the

LLMP were modified to extend the period in which to achieve that low lake level through

February, and (ii) the LLMP were modified to acknowledge the impact of that low lake

level on Warren's ability to fill the Lake by waiving the need to achieve full pond that

year (i.e., the Spring following the low water level). Experience since it filed its

Application has further affirmed to Warren that the requirement for a 2-in-9-year low-

lake level should be removed from the LLMP.

Warren has documented in its reports under the LLMP, and the Commission has

affirmed in accepting those reports, that compliance with this 2-in-9 low-lake provision is

very difficult. Particularly, this provision has been hard to implement under the existing

LLMP, and would also be hard to implement even under the proposed revised LLMP,

given that: (i) Warren is unable to control the precipitation during this period; (ii) the

LLMP (existing and proposed revised) limits the outflow to 60,000 cfm (1 000 cfs)

between mid-October and mid-November for the salmon spawning season (as directed by

the State agencies); (iii) drawdown to accomplish the 2-in-9 low-lake level would occur

during leaf season when the falling leaves cause problems in just keeping the generating

units running under normal flows, and increased flows pull more leaves to the hydro

station; (iv) November is often one of the wettest months of the year; (v) releases of large

volumes of water from Long Lake and Brandy Pond in November (feeding into Sebago

Lake), beyond Warren's control, aggravate Warren's attempts to reduce the lake level;

and (vi) the normal lake level for this time of the year has taken much of the driving head

away from the River and canal gates, and moving large amounts of water takes an

extended period of time. This 2-in-9 low-lake requirement is also not in the public

interest because having the Lake at the low level as of January lSt reduces the likelihood

of Warren being able to fill the Lake in the spring as needed for recreation activities.

Furthermore, the theory of beach accretion previously used to support the low-lake

requirement is unsupported and is not beneficial to Lake constituents overall.

2. Pre-filing Consultation and Evidentiary Support

Warren has consulted with the Federal and State resource agencies with respect to

this proposed revised LLMP [specifically, Maine Department of Environmental

Protection ("MDEP"), Maine Department of Inland Fisheries and Wildlife, Maine

Department of Conservation, and U.S. Fish and Wildlife Service]. In addition, Warren

has also consulted with representatives of certain stakeholders that have been most

involved on this issue, i. e., the Portland Water District; Roger Wheeler and Steve

Kasprzak (representing the Friends of Sebago Lake, "FOSL"); and Charles Frechette and

Steve Nicoli (representing the interests of marina owners/operators on the Lake). In

those consultations Warren circulated the proposed revised LLMP chart and also

circulated the Graph.

From its pre-filing consultation Warren understands that there is support for the

proposed revisions to the LLMP from the resource agencies9 and FOSL, and there is also

support for, or at least non-opposition to, certain aspects of the proposed revisions from

the other potential stakeholders. However, Warren understands that due to resource

limitations the agencies plan to submit their formal comments in response to the proposed

revised LLMP when the Commission issues its public notice of this Supplement.

The proposed revised LLMP, as described above, is in the public interest and

should be incorporated into the New License for the Project.

C. No Further Wetlands Studies are Needed.

As discussed in more detail in Warren's May 20, 2009, letter to the Commission

(incorporated herein by reference), available data does not support a claim that operating

under the existing LLMP has resulted in negative impacts on wetlands. Furthermore, the

proposed revised LLMP is even less likely to affect wetlands.

The impacts of Warren's operations under the LLMP on the surrounding areas

have been extensively studied and discussed. In its 1997 Order approving the LLMP, the

Commission directed Warren to conduct studies to monitor and evaluate the effects of the

LLMP on the environmental resources of the Lake, including: evaluation of impacts on

shoreline archaeological resources, wetlands inventory and monitoring, beach profile

monitoring, recreation monitoring, and near shore water quality study. Pursuant to the

1997 Order Warren conducted the following studies:

1997 Sebago Lake Wetlands Inventory Maps 1998,1999 and 2000 Sebago Lake Wetlands Monitoring Study 1998,1999, and 2000 Sebago Lake Nearshore Water Quality Study 1998,1999 and 2000 Sebago Lake Level Management Recreation Study 1997, 1998, 1999 and 2000 Sebago Lake Beach Profile Study

For example, see Dana Murch, MDEP, email dated the May 3,20 1 1, attached in Appendix C hereto.

In addition to the studies expressly required under the 1997 Order, Warren also

performed the following studies relating to the lake level in connection with preparing

and submitting its Application: Seasonal Lake Level Study (2000-Ol), Tributary Smelt

Spawning Survey (2000-2001), Seasonal Lake Level Survey (2001), Rare, Threatened

and Endangered Species Survey (2000) and Recreation Resource Study (2002). Warren

filed the results of these studies with its Application.

These extensive studies on the potential impacts of the LLMP on various

resources in the area (including wetlands) have confirmed that there are no adverse

impacts as a direct result of LLMP implementation. The proposed modifications to the

LLMP as set forth in this Supplement will provide for more natural lake levels than the

current LLMP. Consequently, the proposed revised LLMP is even less likely to affect

wetlands. Therefore, Warren requests that the Commission confirm that no further

wetlands studies are necessary.

It is also important to note that operation of the Project is only one of many

factors that may influence wetlands along Sebago Lake's shoreline. This shoreline is

proximate to many major roads and large residential and commercial developments.

Changes in localized hydrology and nonpoint source runoff from such developments

undoubtedly impact those wetlands. In addition, significant armoring of the shoreline

continues to occur to protect the drinking water supply. As such, changes in the wetlands

over time would be the result of many anthropogenic contributing factors over which

Warren has no control.

Retention of the Existing. Bypass Minimum Flows is in the Public Interest.

In its Application, Warren proposed to continue to provide the existing bypass

reach minimum flows of: (i) 25 cfs from November 1 to March 3 1 ; (ii) 75 cfs from April

1 to June 30; (iii) 50 cfs from July 1 through August 3 1; and (iv) 75 cfs from September 1

to October 3 1 . l o Contrary to Warren's proposal, the FEA recommends that the minimum

bypass flows be increased to 75 cfs for November lSt through March 3 1 St, and 125 cfs for

April I" through October 3 1 ". Warren reiterates its proposal to continue the existing

bypass reach minimum flows.

It is evident from the record in this proceeding that under current minimum flow

requirements the Eel Weir Project bypass reach is achieving fisheries management

objectives and provides sufficient protection to fish habitat and angling suitability.

Furthermore, fisheries data collected by the State resource agencies clearly show that

implementation of current minimum flows and stocking practices in the bypass reach

have resulted in an extremely popular and highly successful salmonid fishery which is

actually exceeding nearly all of the agency management objectives. The proposed

increased bypass flows in the FEA, intended to provide additional recreational fishing in

a location that is already heavily used, are not justified particularly when balanced against

the resulting reduction in energy production (and associated negative economic impact).

Therefore, Warren requests that the existing minimum bypass flows be continued

under the New License.

' O Warren has been providing these minimum flow releases in the bypass reach since 1992, pursuant to the Commission's "Order Establishing Minimum Flow Release Requirement," 58 FERC 7 62,006 (1 992).

IV.

No Shoreline Permitting Program is Needed under the New License.

For the first time in this proceeding, the FEA recommends that a New License

include a requirement for Warren to establish a permitting program for the installation of

temporary and permanent docks, piers, water supply lines, marinas, sea-walls, rip-rap,

and other facilities, and for dredging, on the Lake shoreline. This new provision appears

to apply to lands and recreation facilities that are not owned by Warren and is justified in

the FEA by an alleged need to ensure that such recreation facilities are installed properly

and placed in appropriate areas without adverse affect on "environmental resources",

without becoming "obstacles to navigation, or a threat to the safe operation of the dam

and power plant." Warren requests that the Commission not adopt this requirement of

the FEA. If, however, the Commission is not willing to remove this requirement in its

entirety, in the alternative Warren requests that the Commission follow the framework

adopted in Northern Indiana Public Service Company, where the Commission recognized

an existing permitting system and did not impose a requirement on the licensee to

establish a duplicative program.''

Warren owns only approximately 11.7 acres of land in the Project boundary.

Those Warren-owned lands are closed to public access for safety and security purposes

and must remain closed to public access. With respect to lands both owned and not-

owned by Warren, as discussed further below the State and local governments implement

existing procedures with respect to building and recreational structures providing

' ' See, 12 1 FERC 7 62,009 at para. 4 1-42 and License Article 4 14 (2007) ("NIPSCO case").

adequate protections. No permitting program by Warren under its New License is needed

or appropriate.

As explained in prior Warren filings, the State of Maine implements a program

under the Natural Resources Protection Act (Title 38, Chapter 3, $ 5 480-A to 480-2;

"NRPA") to protect coastal wetlands and sand dunes; freshwater wetlands; great ponds;

rivers, streams and brooks; fragile mountain areas, and significant wildlife habitat.

Permits are required for certain activities that occur in, on, or over any protected natural

resource area or on land adjacent to any great pond, river, stream or brook, coastal

wetland and some freshwater wetlands. Activities requiring a permit include:

dredging, bulldozing, removing, or displacing soil, sand, vegetation, or other materials;

draining or otherwise dewatering;

filling, including adding sand or other material to a beach or sand dune;

constructing, repairing or altering any permanent structure (a permanent structure is one placed or constructed in a fixed location for a period exceeding 7 months of the year).

The requirements for a NRPA permit are extensive and permit holders are precluded

from certain activities including:

unreasonably interfere with existing scenic, aesthetic, recreational, or navigational uses;

cause unreasonable erosion of soil or sediment, or prevent naturally occurring erosion;

unreasonably harm any significant wildlife, fisheries or aquatic habitat;

unreasonably interfere with the natural flow of any surface or subsurface waters;

lower water quality;

cause or increase flooding;

unreasonably interfere with supply or movement of sand to sand dune areas; and

cross a river segment identified in the NRPA as "outstanding" unless no other alternative having less adverse impact on the river exists.

Under NRPA, the State also allows for certain activities under "permit by rule" provision;

however, those activities are subject to specific standards and limitations, thereby

protecting the environment and other constituents. Warren has the ability to participate in

NRPA proceedings if needed to protect the interests of its operation of the Project.

Furthermore, Maine law requires that every municipality protect shoreland areas

through adopting shoreland zoning maps and ordinances (Mandatory Shoreland Zoning

Act, 38 M.R.S.A. sections 435-449). Local zoning ordinances specify the types of

activities that can occur in certain areas and enforce standards for development. There

are state-wide minimum shoreland zoning ordinance requirements set forth in the State's

model ordinance regulations (MDEP Regulations, Chapter 1000) - which define

shoreland areas on any "great pond" to be 250 feet from the normal high-water line.

Local ordinances that regulate all activities within the shoreland zone (including existing

and proposed structures and uses, such as buildings, docks, utility lines) are in effect in

all of the Towns surrounding the Lake. Warren has the ability to participate in response

to any proposed change in those local zoning ordinances and to participate in any zoning

proceeding if needed to protect the interests of its operation of the Eel Weir Project.

Due to its regional significance as a water supply and recreational resource,

Sebago Lake is one of the most heavily protected shorelines in Maine. Warren believes

that adding another layer to the local and State permitting processes will not achieve a

greater protection of these resources and will not be beneficial. To the contrary,

instituting a duplicative program will add a burden on the landowners, as well as on

Warren and on all of the affected agencies and towns (which will need to consult with

Warren on applications and assist landowners with understanding the multiple layers of

approvals needed).

In summary, as in the NIPSCO case the shoreline areas around Sebago Lake are

protected by existing regulatory requirements that allow Warren to protect its interests in

fulfilling its license responsibilities. Warren is willing to accept a condition to its New

License parallel to that in the NIPSCO case requiring it to meet every six years with the

State agency staff that implements the NRPA requirements, and with the municipalities

surrounding the Lake implementing the shoreland zoning ordinances, to discuss any

changes in their permitting programs. Warren would include a summary of those

meetings in connection with its Form 80 filing, as provided in the NIPSCO case, License

Article 414.

v.

No Additional Boat Launch in the Basin is Necessary or Appropriate.

As Warren has discussed in prior filings (see, e.g., Warren's May 2009 letter to

the Commission), the shallow boat launch (for hand-carry crafts) in Sebago Basin as

proposed in the FEA is not needed. That proposed boat launch would not be used during

any significant period of the year and is potentially unsafe due to the very shallow depths,

hydraulic conditions in the White's Bridge area that could be potentially dangerous to

small boats under certain flow conditions, the potential wavelwind conditions in the

Basin, and the close proximity of the proposed access to Project facilities. Therefore,

Warren requests that the recommendation in the FEA for a shallow boat launch in the

Basin not be adopted in the New License.

VI.

WHEREFORE, Warren requests that the Commission issue it a New License for

the Eel Weir Project, FERC Project No. 2984, as specified in its Application and this

Supplement.

Respectfully submitted, I

Counsel for S. D. Warren Company

Certificate of Service

The undersigned hereby certifies that she has distributed a copy of S. D. Warren

Company's revised "Supplement to Application for New License for Existing Major

Waterpower Project Under 5 MW" filed this day in FERC Project No. 2984 on the

persons and entities listed on the Commission's official service list for this proceeding

(with updates as attached hereto).

Dated this 6th day of June, 201 1.

Counsel for S. D. Warren Company

S. D. Warren Company, Project No. 2984 Supplement to Application

(Filed M a y 2 6 , 2 0 1 1 - as revised June 6 , 2 0 1 1)

Service/Distribution List (page 1 o f 2)

Agencies: U.S. Department of the Interior: Andrew Raddant, [email protected]; and Andrew Tittler, [email protected]

U.S. Fish and Wildlife Service: Fred Seavey, [email protected]

U.S. National Park Service: Kevin Mendik, [email protected]

Maine Department of Environmental Protection: Dana Murch, [email protected]

Maine Department of Inland Fisheries and Wildlife: Francis Brautigam, [email protected]

Maine Department of Conservation: Robert Marvinney, [email protected]

Maine State Planning Office: Todd Burrowes, [email protected]

Other Entities: Portland Water District: Paul Hunt, [email protected]

FPLEmextEra: Frank Dunlap, [email protected]; and Michael Sweet, [email protected]

Friends of Sebago Lake: Stephen Kasprzak, [email protected]; and Roger Wheeler, [email protected]

Sebago Lake Landowners & Users Coalition: Stephen J. Nicoli, [email protected]

Sebago Lake Marina: Charles M. Frechette, [email protected]

American Rivers: Robbin Marks, [email protected]; and Ronald Kreisman, [email protected]

Friends of the Presumpscot River: Dusti Faucher, [email protected]

Kettle Cove Marina: Merrill Rollins, [email protected]

Town of Frye Island: Wayne Fournier (Town Manager), [email protected]

Northwest Shores Association, 66B Piscataqua Rd., Dover, NH 03820

Sebago Pines Property Owners and Road Users Assoc., P. 0 . Box 76, Naples, ME 04055

S. D. Warren Company, Project No. 2984 Supplement to Application

(Filed May 26 ,20 1 1- as revised June 6 , 2 0 1 1)

ServiceIDistribution List (page 2 of 2)

Individuals: Carol Kontos, P. 0. Box 1785, Windham, ME 04062 Doug Watts, [email protected] Nelson Thompson, 8347 Wagon Wheel Road, Alexandria, VA 22309

S. D. Warren Company, Project No. 2984

Supplement to Application (Filed May 26, 201 1 - as revised June 6,201 1)

Appendix A

S. D. Warren Company – Eel Weir Project, FERC Project No. 2984 Lake Level Management Plan for Sebago Lake

(May 26, 2011 – as revised June 6, 2011)

DATES NORMAL FLOW

RANGE

HIGH LAKE FLOW RANGE

LOW LAKE FLOW RANGE

OTHER PROVISIONS

January 1-March 31

30,000 - 70,000 cfm (500-1167 cfs)

If the lake is at or above level 266.65 ft. msl, Warren will increase outflows to between 70,000-90,000 cfm (1167-1500 cfs) and maintain outflows in that range as needed. Warren will consult with the State agencies on the potential for increasing outflows above that maximum range if deemed necessary.

If lake level is at or below 262 ft. msl, Warren will maintain outflows at 24,500 cfm (408 cfs).

Minimize duration of releases into the Project bypass of above 4500 cfm (75 cfs), except if outflows are to be increased to above 70,000 cfm (1167 cfs) to address lake levels at or above 266.65 ft. msl.

April 1 - June 15

30,000 - 70,000 cfm (500-1167 cfs)

If the lake is at or above level 266.65 ft. msl for three consecutive weeks, Warren will increase outflows to between 70,000-90,000 cfm (1167-1500 cfs) and maintain outflows in that range as needed. Warren will consult with the State agencies on the potential for increasing outflows above that maximum range if deemed necessary.


Achieve the goal of 266.0 ft. msl lake elevation between May 1 and June 15 on at least one day during this period where possible operating within the specified outflows. Minimize duration of releases into the Project bypass of above 4500 cfm (75 cfs), except if outflows are to be increased to above 70,000 cfm (1167 cfs) to address lake levels at or above 266.65 ft msl.

June 16 -October 15

24,500 – 60,000 cfm (408-1000 cfs)



Minimize duration of releases into the Project bypass of above 4500 cfm (75 cfs), except if outflows are to be increased to above 60,000 cfm (1000 cfs) to address lake levels at or above 266.65 ft msl.

October 16 -November 15

30,000 – 60,000 cfm (500-1000 cfs) – capped at 60,000 cfm (1000 cfs) for salmon spawning season.



Minimize duration of releases into the Project bypass of above 4500 cfm (75 cfs), except if outflows are to be increased to above 60,000 cfm (1000 cfs) to address lake levels at or above 266.65 ft msl.

November 16 - 30,000 – If the lake is at or above level If lake level is at or Minimize duration of releases

S. D. Warren Company – Eel Weir Project, FERC Project No. 2984 Page 2 of 2 Lake Level Management Plan for Sebago Lake (May 26, 2011 – as revised June 6, 2011)

DATES NORMAL FLOW

RANGE

HIGH LAKE FLOW RANGE

LOW LAKE FLOW RANGE

OTHER PROVISIONS

December 31 70,000 cfm (500-1167 cfs)

266.65 ft. msl Warren will increase outflows to between 70,000-90,000 cfm (1167-1500 cfs) and maintain outflows in that range as needed, and will consult with the State agencies on the potential for increasing outflows above that maximum level if deemed necessary.

below 262 ft. msl, Warren will maintain outflows at 24,500 cfm (408 cfs).

into the Project bypass of above 4500 cfm (75 cfs), except if outflows are to be increased to above 70,000 cfm (1167 cfs) to address lake levels at or above 266.65 ft msl.

OPERATING PARAMETERS:

• Flows: Project outflows are the combination of flows into the Canal and the bypass. Flows will first be directed to the bypass to fulfill minimum bypass flow requirements under the FERC License and the Water Quality Certification; second, flows will be directed to the Canal up to 65,000 cfm (1083 cfs); and the remaining flows will be directed to the bypass. Warren shall not make more than one change in outflows in any one calendar week of a total of more than 20,000 cfm (333 cfs), except if the Lake is above 266.65 ft. msl or if Warren believes it is necessary to adjust outflows more often to avoid exceeding the 266.65 ft. msl level or going below the 262 ft. msl level. If the lake level reaches above 267.0 ft. msl, Warren shall be able to increase outflows above the maximum specified if necessary to reduce the lake level to 266.65 ft. msl.

• Monitoring: Lake levels shall be monitored using an approved U.S.G.S. gage to be read remotely at least once a day, with the readings published by the U.S.G.S. For the purpose of confirming compliance with this Plan, U.S.G.S.’s provisional average daily reading of the Lake level shall be used.

• Exceptions: Warren may adjust outflows temporarily outside the range under the Plan in the event of equipment failure, approved maintenance activities or construction of fish passage facilities on any of the Warren’s hydro projects on the River, power supply emergencies, downstream flooding, public safety considerations, existing or predicted extreme meteorological events (including abnormal storm events and drought), or by order of local, State or Federal authorities.

• Reporting will be covered by Warren’s annual operations and flow compliance report.


Supplement to Application (Filed May 26,201 1)

Appendix B

S. D. Warren Company, Eel Weir Project, FERC Project No. 2984 – Lake Level Management Plan, Proposed Revision (May 2011) 2001‐2010 AVERAGED DATA

NOTES: 1) Because there were only two leap years in the data set to average, February 29th data has been omitted for 2004 and 2008. 2) January 1st starting point is the actual ten year average (2001‐2010) for that day.


Supplement to Application (Filed May 26,201 1)

Appendix C

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