Senator Brenner, Representative Tucker, and members of the ENR Committee:
My name is Nick Bennett, and I am the staff scientist for the Natural Resources Council of Maine (NRCM), Maine’s largest environmental advocacy group with more than 25,000 members and supporters. I am testifying in strong opposition to LD 1979.
This primary purpose of this bill is to make it more difficult or impossible for Maine’s resource agencies to require fish passage that works at hydropower dams.
It would do this in two ways. Section 1 of the bill would require the Department of Agriculture, Conservation, Forestry (DACF) to develop river management plans for every major river in the state. DACF lacks the expertise or the staff to do this. This requirement is actually in existing law. This task fell to DACF in 2012 when the State Planning Office was dissolved. Giving this authority to DACF was a mistake, and the agency has never developed a river management plan since then. Making it develop a large number of these plans now would require a large fiscal note. It also appears to be the intent of LD 1979 to give these river management plans regulatory authority with deference to existing uses, such as hydropower dams and wastewater discharges. If this is the case, these plans would diminish the authority of the Department of Environmental Protection (DEP) to enforce water quality standards. The reduced authority for DEP would threaten Maine’s ability to continue administering the Clean Water Act, which the U.S. Environmental Protection Agency (EPA) used to do for us. NRCM does not want to see that happen.
Section 2 of the bill would prevent our resource agencies from recommending fish passage standards that are stricter than any Federal Energy Regulatory Commission (FERC) fish passage recommendations in order to protect endangered species. It would also prevent DEP from being able to deny a license to dams that do not meet the state water quality standards if FERC fails to offer requirements strict enough to do so. That is taking away another key ability from DEP, again threatening Maine’s delegated authority under the Clean Water Act.
If the Legislature is willing to take away DEP’s ability to enforce its own standards, as LD 1979 requires, EPA will have no choice but to reevaluate Clean Water Act authority delegation to Maine. NRCM does not believe that Maine will benefit environmentally or economically if EPA resumes enforcement of the Clean Water Act here.
The key proponent of this bill is Brookfield, the largest dam owner in Maine. Brookfield has many dams with egregiously poor fish passage in Maine, including the Ellsworth Dam on the Union River, the Brunswick Dam on the Androscoggin River, and the first four dams on the Kennebec River between Waterville and Skowhegan. The Shawmut Dam, which is the third dam on the river, is currently undergoing a FERC relicensing process. FERC has said it will produce an Environmental Impact Statement (EIS) for this process looking at the cumulative effects of the Shawmut Dam combined with the other three dams in August. As part of this relicensing, Brookfield sought water quality certification for the Shawmut Dam. In order to receive a license that will last from 30 to 50 years, a dam owner must demonstrate that it meets state water quality standards. This is a federal requirement under section 401 of the Clean Water Act. To demonstrate that it meets standards, a dam owner must apply to DEP, which then issues a decision either to grant certification, grant certification with conditions, or deny certification. DEP rightly issued a draft denial for the Shawmut Dam last summer because Brookfield’s proposed fish passage measures would not work.
In response, rather than propose fish passage measures that would work, Brookfield withdrew its application and submitted an essentially identical one two months later.1 DEP has not yet ruled on that application. Brookfield also fanned panic by falsely claiming that the denial would result in the Shawmut Dam’s removal and that this would put the Sappi Somerset Mill out of business. Unfortunately, Sappi made similar statements. A water quality certification denial does not equate to dam removal. It simply means that the dam owner needs to propose actions that will allow the dam to meet water quality standards.
We understand that there is substantial concern about the Sappi Somerset Mill, and rightly so. This is one of Maine’s largest employers. We think it is unlikely that the removal of the Shawmut Dam would damage the mill’s operations, but NRCM would never support removal of the dam if it were a threat to Sappi. We have met with Sappi management and union leadership to assure them of this. We have also written a letter to Sappi management to this effect, which I have attached to this testimony as Exhibit 2. Nor would any agency issue a permit for the dam’s removal if it would put the mill out of business. NRCM has been heavily involved in dam removals on the Kennebec and Penobscot Rivers. In both cases, when the Edwards Dam and the Great Works Dam came out, it was as a result of major settlement agreements. Funding for the dam removal project paid to move industrial and municipal in-river infrastructure in the case of the Edwards Dam. The municipal and industrial entities in question did not have to pay. In the case of the Great Works Dam, the members of the Penobscot River Restoration Trust, made up of some of the same environmental groups that are testifying today in opposition to LD 1979, paid to move the water intake for the Old Town Mill and the Old Town sewage outfall out of our own pockets. In any scenario that resulted in removing the Shawmut Dam that NRCM can imagine, it would involve substantial public funds and funds from conservation interests that could defray the costs of moving municipal and industrial infrastructure. No Maine dam removal has resulted in the loss of mill jobs, and we believe no Maine dam removal ever will.
The problem here is Brookfield. Brookfield has failed to propose fish passage that will work for Shawmut and its other Kennebec dams. These dams block vast amounts of habitat for all species of native sea-run fish. They block one of the largest and highest quality pieces of Atlantic salmon spawning and rearing habitat in the country: the Sandy River and its tributaries. Without access to the Sandy, Atlantic salmon, which once numbered in the hundreds of thousands in the Kennebec but are down to a run of about 30 fish, will disappear from the river. And because the Kennebec and the Penobscot are the only large rivers left in U.S. with Atlantic salmon populations, losing them in the Kennebec will likely lead to their extinction in this country.
The problem with Brookfield’s four dams is that they generate very small amounts of power, so Brookfield needs to run them on the cheap. That means the company is proposing the least expensive fish passage it thinks it can get away with, and we should all be grateful that the State of Maine has called Brookfield on it. Brookfield is one of the largest energy companies in the world, but these four dams are not very relevant from an energy perspective. Shawmut and the other three Kennebec projects contribute about 0.43 percent of the state’s energy generation.2 The four dams between Waterville and Skowhegan represent only six percent (46.9 MW out of 742 MW total)3 of Maine’s overall hydroelectric capacity. Factor in Maine’s 300 MW4 of solar generation and its 9965 MW of installed wind generation, and the percentage of renewable capacity of the four projects becomes smaller still. Moreover, Maine’s solar generation capacity is expected to grow by an additional 1,300 MW over the next 5 years.6 Even assuming that the capacity factor of the Kennebec projects is 67%7 and that for solar generation in Maine is only 15%,8 expected new solar generation capacity in the very near term dwarfs the capacity of Brookfield’s four Kennebec dams by more than 5 to 1.
Brookfield needs to propose fish passage that will work at its four Kennebec dams, or it should sell these dams to an entity that is willing to do so. We believe that there is the possibility of a globally significant Kennebec restoration project if Brookfield sold its dams for a fair price to buyers who would remove them. This would also leverage funding to meet the needs of industrial and municipal river users as well, including Sappi. If it does not wish to sell these dams, Brookfield needs to propose fish passage that restores the sea-run fisheries of the Kennebec on which the health of the Gulf of Maine and our multi-billion-dollar marine industries depend. LD 1979 would let Brookfield get away with the destruction of resources that belong to all Maine people: our rivers and our fisheries. It is the job of our state agencies to protect these resources.
The ENR Committee should help our resource agencies continue to do their jobs and reject LD 1979.
Thank you for the opportunity to testify.
1 The joint comments of NRCM, Maine Rivers, Atlantic Salmon Federation, and Trout Unlimited on the problems with Brookfield’s second application for Water Quality Certification are attached to this testimony as Exhibit 1
2 Maine Department of Marine Resources. 2020. Kennebec River Management Plan Diadromous Resources Amendment. P. 30. Accessed at: https://www.maine.gov/dmr/laws- regulations/documents/Final%20Amendment_12_22.pdf#page=30
3 Kleinschmidt Associates. 2015. Maine Hydropower Study. Prepared for Maine Governor’s Energy Office. Tables 1-1 and 2-1. Accessed at https://www.maine.gov/energy/sites/maine.gov.energy/files/inline-files/001-ME-GEO-Rpt-02-04-15.pdf
4 Solar Energy Industries Association. Accessed at https://www.seia.org/state-solar-policy/maine-solar.
5 American Clean Power. Accessed at: https://cleanpower.org/wp- content/uploads/2021/02/ACP_MarketReport_4Q2020.pdf, P. 11.
6 Solar Energy Industries Association. https://www.seia.org/state-solar-policy/maine-solar.
7 2020. Kleinschmidt Associates. Brookfield White Pine Hydro LLC. Application for New License for Major Water Power Project – Existing Dam. Shawmut Hydroelectric Project (FERC No. 2322). January P. B-2. Accessible at https://1drv.ms/u/s!AkLlihAdyxqVklBuZIG6A5l9pnd8?e=sWgbBm.
8 Energy Information Administration. Accessed at https://www.eia.gov/todayinenergy/detail.php?id=39832.