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letter 12-07-2009

letter 12-07-2009

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Published by thisdog
DEP's letter to FPL Energy
DEP's letter to FPL Energy

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Published by: thisdog on Dec 08, 2011
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12/08/2011

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 VIA ELECTRONIC MAIL
December 7, 2009Frank H. DunlapSenior Environmental SpecialistFPL Energy Maine Hydro LLC160 Capitol Street, Suite 8Augusta, ME 04330RE: Application for Water Quality CertificationFlagstaff Storage ProjectFERC No. 2612Dear Frank:The purpose of this letter is to summarize the status of water quality certification for theFlagstaff Storage Project.On November 14, 2003, the Department approved water quality certification for theFlagstaff Project, subject to a number of conditions, including conditions regarding lakelevels and flow releases.With respect to lake levels, the Department established a maximum winter drawdownlimit of 24 feet below full pond, except when excessive snowpack or precipitationrequires an additional drawdown in order to maintain the historic level of flood protectionfor the Kennebec River. This approval was based in part on the Department’s findingthat “(t)he available evidence indicates that the structure and function of the resident biological community in Flagstaff Lake is the structure and function that would beexpected to exist in a water storage reservoir with a drawdown of similar magnitude.”The Department also established a maximum summer (June 1 to August 31, inclusive)drawdown limit of 4.5 feet below full pond.With respect to flow releases, the Department required that a minimum flow of 200 cfs,or such higher flow as is needed, be released from the Flagstaff (Long Falls) Dam to theDead River to achieve a target minimum flow of 300 cfs below Spencer Stream, exceptunder specified circumstances. The Department also required specified whitewater  boating flow releases from the Flagstaff (Long Falls) Dam to the Dead River.On December 9, 2003, separate appeals of the Department’s decision were filed by theTown of Eustis and by a group of non-governmental organizations (“NGOs”), includingMaine Rivers, Trout Unlimited, the Appalachian Mountain Club, and the NaturalResources Council of Maine.
JOHN ELIAS BALDACCI
GOVERNOR
DAVID P. LITTELL
 
COMMISSIONER
STATE OF MAINE
D
EPARTMENT OF
E
NVIRONMENTAL
P
ROTECTION
 
Letter to Frank H. DunlapDecember 7, 2009Page 2 of 5In its appeal, the Town of Eustis contended that the summer drawdown limit approved bythe Department would adversely affect public access and recreation, wetlands andwildlife habitat, loon nesting, and the local economy. The Town requested that the Boardmodify the Department’s action to reduce allowable summer/fall drawdowns.
1
 In their appeal, the NGOs contended that the winter drawdown limit approved by theDepartment violated applicable water quality standards for aquatic life, that theDepartment improperly created a subclass under Maine’s water quality standards withoutconducting the required use attainability analysis,
2
and that the Department’s action was based on a new interpretation of water quality standards that must be approved by EPA.The NGOs requested that the Board reverse the Department’s action and deny water quality certification for the project.On March 30, 2004, FERC issued a new license for the project incorporating the winter drawdown limit and flow requirements contained in the Department’s certification. Thenew license also incorporated the summer drawdown limit contained in the Department’scertification, but, in response to concerns expressed by the Town of Eustis, stipulated agradual drawdown over the summer/early fall months.
3
 On July 15, 2004, on appeal, the Board of Environmental Protection reversed theDepartment and denied certification for the project, without prejudice, until such time aseither EPA approves Resolves 2003, Chapter 37 (which authorized an impoundment-to-impoundment comparison for meeting aquatic life standards in water storage reservoirs)or FPL Energy conducts a use attainability analysis (UAA) to support the adoption of new water quality standards for Flagstaff Lake.
4
FPL Energy subsequently appealed theBoard’s decision to state court.On September 21, 2004, in response to the Board’s action and FPL Energy’s appeal of that action, FERC stayed the new license pending the outcome of the state litigation.FPL Energy then appealed FERC’s decision to federal court.On July 26, 2007, the Board’s action was upheld by the Maine Supreme Court. TheCourt found that the Board’s interpretation of the State’s water quality statute was
1
The Town requested that lake drawdowns be limited to 6 inches (0.5 feet) in June, 18 inches (1.5 feet) inJuly, 30 inches (2.5 feet) in August, 42 inches (3.5 feet) in September, and 60 inches (5.0 feet) in October.
2
A use attainability analysis (UAA) is “a structured scientific assessment of the factors affecting theattainment of a designated use in a waterbody. The assessment may include consideration of physical,chemical, biological and economic factors.” 38 MRSA Section 466(11-A).
3
License Article 402 provides that the licensee shall maintain water surface levels in Flagstaff Lake at or above 1 foot below full pond during June; 2 feet below full pond during July; 3 feet below full pond duringAugust; and 4.5 feet below full pond during September, based on a full pond elevation of 1,146 feet USGS.This Article does not conflict with the maximum summer drawdown limit established in the Department’scertification.
4
Because the Board denied certification for the project, no action was taken on the appeal filed by theTown of Eustis.
 
Letter to Frank H. DunlapDecember 7, 2009Page 3 of 5entitled to deference and that the Board’s position that the “impoundment-to-impoundment” standard was a new standard requiring EPA approval or a UAA was areasonable interpretation and was consistent with legislative intent. The Court also foundthat the issuance of an approval by the Department within one year of the last re-filing of the application was sufficient to prevent a waiver of certification, and that subsequentappeals of the agency decision were not required to be completed within the one-year  period for action on a request for certification. FPL Energy’s subsequent request that theU.S. Supreme Court review the case was denied, so the Maine Supreme Court’s decisionis now final.On December 23, 2008, FERC’s action was upheld by the First Circuit Court of Appeals.The Court found that the legal principles of res judicata barred it from re-examining theMaine Supreme Court’s decision upholding the validity of the Board’s denial of certification. The Court also found that FERC had authority to stay a license alreadygranted. No further appeal was filed, so the First Circuit decision is now final.As a consequence of the Maine Supreme Court and First Circuit Court decisions, theBoard’s denial of water quality certification for the project stands and FERC’s stay of thenew license for the project remains in effect. This means that, for now, the projectcontinues to operate under the terms of its original 1979 FERC license, which does notcontain any drawdown limits for Flagstaff Lake or minimum flow requirements for theDead River.In a letter dated September 24, 2009, FERC asked that FPL Energy “provide evidencethat you have filed a new certification request and inform [FERC] of any other steps youare taking to ensure that you will be able to obtain a new certification.”
5
 By letter dated November 16, 2009, FPL Energy has now submitted a new Applicationfor Water Quality Certification for the continued operation of the Flagstaff StorageProject, FERC No. 2612. The application incorporates by reference all prior filings andsubmittals related to this matter.Your application has been accepted for processing as of today’s date.It is the DEP’s understanding that FPL Energy proposes to continue to operate the projectwith lake levels generally following the long-term average operating curve, and with amaximum allowable drawdown of 36 feet below full pond. It is also the DEP’sunderstanding that a drawdown of approximately 24 feet below full pond by late March isnecessary to maintain existing flood control capacity in the Kennebec River storagesystem
6
and to allow the lake to be re-filled in the spring back to full-pond level under average runoff conditions.
5
Pursuant to section 401(a)(1) of the Clean Water Act, FERC cannot issue a new license for the projectuntil water quality certification has been granted or waived by the State.
6
This system includes, in addition to Flagstaff Lake, Brassua Lake and Moosehead Lake.

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