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.
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,
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.
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.
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
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.
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).
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.
Because the Board denied certification for the project, no action was taken on the appeal filed by theTown of Eustis.