107 FERC ¶ 61, 120

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Before Commissioners: Pat Wood, III, Chairman;

Nora Mead Brownell, and Joseph T. Kelliher.

FPL Energy Maine Hydro, LLC Project No. 2552-065

ORDER DENYING REHEARING AND STAY

(Issued May 6, 2004)

1. Save Our Sebasticook, separately, and Town of Winslow (Town) and Save Our

Sebasticook, jointly, seek rehearing of an order of the Commission, issued January 23,

2004, approving the surrender of FPL Energy Maine Hydro, LLC’s (FPL Energy) Fort

Halifax Project No. 2552, on the Sebasticook River, in Kennebec County, Maine, and

authorizing partial removal of the project dam. 106 FERC ¶ 61,038. For the reasons

discussed below, we deny rehearing. We also deny requests for a stay of the surrender

order.

2. The 1.5-megawatt Fort Halifax Project is located about 1,400 feet upstream of the

confluence of the Sebasticook River and the Kennebec River, of which the Sebasticook is

a tributary. The project was constructed in 1907-08 and was first licensed to Central

Maine Power Company (Central Maine) in 1968. Central Maine Power Co., 40 FPC 433

(1968). The Commission issued a subsequent license to Central Maine in 1997. Central

Maine Power Co., 81 FERC ¶ 61,249 (1997).

3. In 1998, Central Maine and other owners of hydropower projects in the Kennebec

River Basin (Kennebec Hydro Developers Group, or KHDG) entered into an agreement

with the State of Maine, federal fisheries agencies, and a group of conservation

organizations known as the Kennebec Coalition, under which the project owners would

provide funds for fish restoration and the removal of the Edwards Dam, the lowermost

dam on the Kennebec, in exchange for an extension of existing license deadlines for the

provision of fish passage at the various projects. In respect to the Fort Halifax Project,

the KHDG Agreement provided for the installation of a temporary fish pump and trap-and-

transport facility for the capture of upstream-migrating alewives (river herring).

The agreement also provided for the replacement of these facilities by a fish lift that

4. Upon submission of the agreement as a settlement, the Commission amended the

pertinent licenses, including the Fort Halifax Project license, to include the fish passage

requirements set forth in the agreement. Edwards Manufacturing Co., Inc., 84 FERC

¶ 61,227 (1998). In 1999, the project was transferred to FPL Energy, which installed the

temporary fish pump. However, in June 2002, FPL Energy filed an application to

surrender the license, because it had determined that the economics of the project would

not justify the costs of installing and maintaining the fish lift required by the agreement

and the license. As part of the application, FPL Energy proposed to remove several

sections of the dam to provide fish passage. FPL Energy later modified its original

proposal to widen the dam breach and to alter the method of removal.

5. In the proceeding initiated to process the surrender application, the Commission

solicited public comment, and the Commission staff prepared a draft and final

environmental assessment (EA). The staff analyzed the dam removal proposal and

several alternatives, including surrender of the license with cessation of generation but

without dam removal. The staff also considered denial of the surrender application and

continued project operation, using a fish pump developed with improved technology

(Canavac fish pump). The final EA did not recommend an alternative. In our

January 23, 2004 Order, we granted the surrender application and required the licensee to

remove the dam in accordance with its modified proposal.

6. FPL Energy’s proposal was generally supported by state and federal agencies and

by conservation groups, primarily because partial dam removal would provide fish

passage, but was opposed by a number of individuals, Save Our Sebasticook, and the

Town, which were concerned with preserving the reservoir and its environment and with

anticipated adverse environmental and other effects of drawing down the reservoir. On

rehearing, Save Our Sebasticook and the Town (collectively, the opponents) object to the

role of the KHDG Agreement in our surrender determination and request that we rehear

the application in the light of information that they assert we did not previously have the

opportunity to consider.

7. The opponents complain that the KHDG Agreement was not developed in an open

process, and that inclusion of the Kennebec Coalition, but not of local communities, as a

signatory prevented a proper appreciation of the public interest before the agreement was

finalized. The opponents contend that the agreement precluded the licensee from

including the Canavac fish pump alternative in its surrender application, with the result

that the Commission was deprived of relevant information, was unable to consider use of

this pump in lieu of dam removal, and was limited to considering the options only of

denying the surrender application or granting it and requiring dam removal. The

opponents ask us to rehear the application with the option of considering the Canavac fish

pump as an alternative means of achieving fish passage.

8. The validity of the KHDG Agreement and the procedures under which it was

formulated are not matters for consideration in this surrender proceeding. Although the

Commission did incorporate fish passage provisions of the agreement as conditions of the

Fort Halifax Project license, the license amendment proceeding in which this was

accomplished became final long ago and cannot be revisited here.

9. Moreover, as we stated in the surrender order, a licensee is free to seek surrender

of its license, and we cannot require a licensee to continue operating and maintaining a

project against its will. 106 FERC ¶ 61,038 at P 31 and n.15. That a licensee may be

seeking license surrender to implement the terms of a private agreement does not alter the

applicability of this principle. However, although we do not deny surrender applications,

we can consider, as we did in this proceeding, whether to require dam removal as a

condition of the surrender or to allow a dam to remain in place. Thus, contrary to the

opponents’ assertions, the KHDG Agreement did not limit the Commission’s ability to

consider whether partial dam removal should be a condition of license surrender. Our

decision to authorize partial removal of the dam was based on the record in this

proceeding, including the submissions of the opponents of dam removal and the

environmental analysis of the effects of removing the dam and of leaving it in place.

10. The limitations contained in the KHDG Agreement did not deprive us of

information about the Canavac fish pump. To the contrary, as the opponents

acknowledge, the EA assessed the capabilities of this fish pump and reached certain

conclusions about its probable effectiveness in passing the targeted species of fish. In

addition, Commission staff conducted a technical conference in October 2003 at which

additional information about the Canavac pump was presented. The record thus contains

considerable information about the fish pump.

Project No. 2552-065 - 4 -11.

Our inability to require installation and operation of a Canavac fish pump was the

result not of a lack of information about the pump but of the fact that the application filed

by the licensee was one for surrender of its license. Even if the KHDG Agreement had

not restricted the licensee’s pursuit of the fish pump option, we would not have required

the licensee to install and operate a Canavac fish pump in connection with an application

to surrender the license. Such a requirement would have been incapable of enforcement

by the Commission upon surrender of the license and termination of Commission

jurisdiction, as well as financially unwarranted, given that project generation would cease

if the license were surrendered. Therefore, no purpose would be served in reevaluating

the application with a view to selecting the Canavac fish pump option, as the opponents

urge us to do, because the limitations on the exercise of our authority in a surrender

proceeding would continue to preclude this option.

12. As we explained in the surrender order, we could have required installation and

operation of the Canavac fish pump only in connection with an application to amend the

license, but the licensee filed no such application, and we could not have compelled it to

file one. The record leaves little doubt that, in refraining from seeking a license

amendment to authorize use of a fish pump, the licensee was constrained by the terms of

the KHDG Agreement. However, the agreement’s requirements for a fish lift to the

exclusion of other fish passage facilities were consented to by the licensee, which also

voluntarily sought an amendment of its license to include those provisions as license

conditions. The present surrender proceeding is not an appropriate forum for

reconsidering whether other fish passage options should have been explored in that

amendment proceeding.

13. The opponents state that the licensee and some state agencies did not provide

documentation to support their belief that partial dam removal would not result in an

overall reduction of wetlands. The opponents believe that there may, in fact, be a

significant wetland reduction, and they ask us to review the documentation provided by

the licensee and the state agencies to validate the assumption that no impact would occur.

14. The Final EA concluded that a portion of the existing wetlands would be degraded

with the drawing down of the impoundment, but that wetlands would naturally

reestablish in some areas along the river. It concluded that, overall, the acreage of

deciduous swamp, shrub swamp, and emergent marsh/wet meadow wetland cover types

in the project area would remain about the same or increase slightly following dam breach.

Project No. 2552-065 - 5 -

Staff’s conclusions about the effect of partial dam removal on wetlands were

not based on the assumptions of the licensee or the agencies but rather on its own

independent analysis of the record. Since the staff already considered the record on this

matter, and since the opponents have not alleged any inadequacies in staff’s review, there

is no reason to examine the underlying documentation again.

15. The opponents object that our order did not reflect the actual status of the

Sebasticook River fisheries restoration, which they assert is behind schedule due to

delays by the Maine Department of Marine Resources (Maine DMR). They state that

two upstream hydropower projects on the Sebasticook, the Benton Falls Project No. 5073

and the Burnham Project No. 11472, will not have upstream fish passage facilities in

place by the deadlines specified in the KHDG Agreement. They contend that Maine

DMR has no plans in place for trap-and-truck operations to substitute for those that will

be lost if the Fort Halifax dam is breached. They also argue that the reintroduction plan

for alewives into upstream lakes has not been resolved, that actual alewife stocking plans

have been delayed for the past two seasons, that American shad returns to the

Sebasticook are significantly below forecasts, and that Maine DMR has not developed a

plan to provide fish passage at numerous other non-hydropower dams upstream in the

Sebasticook system. The opponents contend that Maine DMR did not provide the

Commission with complete information regarding these delays, which they ask us to

16. In concluding that FPL Energy should partially remove the project dam in

conjunction with the surrender of its license, we relied to a considerable extent on the fact

that federal and state fisheries agencies, conservation groups, and hydropower project

owners had developed a plan for restoration of anadromous fish in the Sebasticook and

Lower Kennebec Rivers according to an established schedule. 106 FERC ¶ 61,038 at P

35. We do not agree with the opponents that delays in the fisheries restoration efforts

should affect whether partial dam removal is warranted. Even if these efforts are behind

schedule or have not yet been as successful as anticipated, the opponents’ arguments do

not suggest that Maine DMR intends to abandon those efforts. It is a matter of when, not

if, anadromous fish restoration in the Sebasticook will occur. Since fish passage at Fort

updated information on these issues. Maine DMR is under no obligation to provide such

information, and we lack authority to require it to do so.

Project No. 2552-065 - 6 -Halifax

is a necessary part of that restoration, we see no purpose in contributing to delays

in restoration efforts by rescinding our dam removal authorization, particularly since it is

clear such an action will not cause the federal and state agency signatories to the KHDG

Agreement to accept any fish passage facilities other than a fish lift at the dam.

17. The opponents argue that we did not receive complete and accurate information on

the full extent of the existing recreational use and the impacts of partial dam removal on

future recreation potential. They ask us to require Maine DMR to submit a

comprehensive study that details existing uses in all four seasons and estimates "actual

future shoreline angling opportunities."

18. The Final EA found that elimination of the reservoir would result in the loss or

reduction of certain recreational activities, including boat-based angling and waterfowl

hunting opportunities, ice skating, ice fishing, snowmobiling, and carry-in boat access,

but that shoreline angling activities might increase. Id. at P 44. The opponents do not

explain why the information relied upon by the staff to reach these conclusions was

incomplete or inaccurate. In any event, there was sufficient opportunity in this

proceeding for any party to provide evidence of recreational use of the reservoir. Maine

DMR was under no obligation to provide such information, and we lack authority to

require it to do so.

19. The opponents assert that our order recognized but did not adequately address the

negative consequences of partial dam removal. They argue that our action will cause

unnecessary risks and burdens to fall on the Town and its residents. The opponents are

particularly concerned that the full extent of some effects of breaching the dam will not

be known until after the reservoir has been lowered and the site is no longer under the

Commission’s jurisdiction. These effects include sediment contamination, risk of ice

jamming and flooding, soil and bank erosion, and deterioration of project structures over

time. The opponents also object to the loss of public recreational access and the burden

of replacing a Town sewer line that crosses the reservoir and may be partly exposed after

the drawdown.

20. The EA analyzed these issues, and we considered them in our order. The EA

concluded that exposure of contaminated sediments would be limited and would not

result in human health impacts; to address this issue, we included revegetation and

stormwater outfall monitoring provisions as conditions of the surrender. Id. at P 39 and

Ordering Paragraph (C). We also required the licensee to include measures to control

sedimentation and erosion during the removal process. Id. at Ordering Paragraph (E)(2).

Both the EA and the order acknowledged that ice jamming could increase after the dam is

breached. Id. at P 41. We imposed conditions to ensure that the remaining project

facilities would be in a safe and stable condition during and after completion of the

Project No. 2552-065 - 7 -partial

dam removal. Id. at P 50 and Ordering Paragraph (E). We addressed opponents’

recommendations for replacement recreational facilities and access after the

impoundment is drawn down. Id. at P 51. We discussed the Town’s sewer line and

noted that it had been constructed pursuant to an easement granted by the licensee’s

predecessor. Id. at P 53-55.

21. The measures we required in this proceeding to address issues raised by opponents

of the partial dam removal are ones that would sufficiently address environmental

impacts, such as possible exposed sediments and erosion, with short-term measures that

could be undertaken while the project remains under the Commission’s jurisdiction. The

opponents do not convince us that these measures, which were based on the staff’s

conclusions in the EA, would be inadequate. As we explained in the surrender order,

such long-term measures as ensuring the maintenance of recreational access or of the

condition of the remaining project facilities would necessitate continuing Commission

jurisdiction, whereas surrender of a license entails the termination of the Commission’s

jurisdiction. Id. at P 49-52. Once the surrender becomes effective, any continuing issues

would be properly addressed under applicable state regulation. In some respects

surrender and dam removal might create costs or losses for the Town and its residents,

but the opponents do not explain why avoidance of those impacts should require the dam

recognized that there would be some adverse consequences of partial dam removal but

determined that, on balance, this action, with the conditions we imposed, had significant

benefits over leaving the dam in place.

22. The opponents argue that we did not consider certain information in our order.

They state that an abandoned landfill is located adjacent to a stream that flows into the

impoundment, and that the extent of "potential exposures" in this area upon draining of

the impoundment is unknown. Issues relating to this landfill were not raised during the

environmental review process, despite sufficient opportunity, and the opponents do not

now explain why lowering the impoundment should have any effect on the landfill. The

opponents note that the Comprehensive Plan for the Town of Winslow recognizes the

value of the impoundment and establishes the goal of preserving it. The staff’s EA and

our order considered the uses and benefits of the impoundment to the local community.

The opponents claim that our analysis did not consider information from the Maine

Department of Transportation (Maine DOT) indicating that the risk of scouring on

possible only with the approval of the licensee and the Commission.

23. The opponents request that we consider complete removal of the project as the

preferred means of achieving fish passage if we do not revise our surrender order to allow

use of the Canavac fish pump. In our surrender order, we considered the total dam

removal alternative, which had been analyzed in the EA, and concluded that its

advantages over partial dam removal were not significant, since the proposed breach

would be adequate for fish passage. We also concluded that total dam removal would

increase the potential for sedimentation and would result in the complete, rather than

partial, loss of an historic structure. Moreover, no party to the proceeding had advocated

total dam removal. Id. at P 37. The opponents do not give any reason for seeking total

project removal at this stage of the proceeding.

24. The opponents ask us to stay the surrender order if we do not rescind it, to allow

the completion of an ice-jamming study required by the U.S. Army Corps of Engineers

(Corps), as well as to give the opponents additional time to pursue resolution "through

other means" of the "many remaining issues" generated by the partial removal decision.

James L. Gorham, an intervenor in the proceeding, also seeks a stay of the decision, to

enable him to obtain access to and review information about meetings among the

signatories to the KHDG Agreement.

25. In acting on stay requests, the Commission applies the standard set forth in the

Administrative Procedure Act, 5 U.S.C. § 705, i.e., the stay will be granted if the

considers a number of factors related to the public interest, such as whether the movant

will suffer irreparable injury in the absence of a stay and whether the issuance of a stay

would substantially harm other parties.

Project No. 2552-065 - 9 -26.

The opponents do not furnish much information about the ice-jamming study,

other than that the Corps has required the licensee to conduct it to determine how much

the risk of ice jamming might increase following breach of the dam, and that completion

of the study is expected in May 2004. In our order, we recognized that ice jamming

could increase once the dam is breached and concluded that this effect was not capable of

being mitigated by any measures that we could impose in a surrender proceeding. Id. At

P 41. Our determination that the benefits of partial dam removal outweigh the adverse

effects encompassed this finding of an increased potential for ice jams. Since we have

already acknowledged this adverse effect, the results of the Corps-required study are

unlikely to cause us to reconsider our decision to authorize partial dam removal. The

Commission’s authorization to remove a dam is independent of any actions that the

Corps may require before it grants permission to conduct dam removal activity under its

27. Otherwise, the opponents do not specify what issues they intend to address during

the pendency of a stay, what courses of action they expect to pursue in addressing those

issues, or how long a stay would be required for their purposes. Mr. Gorman seeks a stay

to address matters relating to the formulation of the KHDG Agreement, but, as we have

stated, such matters are not pertinent to our disposition of the surrender application.

28. The movants have not demonstrated that staying our action would enable them to

take any action likely to result in a modification of our decision to allow partial dam

removal. Therefore, although denying the stay requests might preclude the movants from

pursuing certain matters or obtaining certain information before the dam removal process

begins, we are not convinced that failure to obtain a stay would cause them irreparable

harm. Issuance of a stay would interfere with the licensee’s plans, which it is already

For these reasons, we find that justice does not require a stay of our surrender order.

authority to issue permits for the discharge of dredged or fill material into United States

waters.

dam on March 22, 2004.

Project No. 2552-065 - 10 -The

Commission orders:

(A) The requests for rehearing of the Commission’s January 23, 2004 Order in

this proceeding filed by Save Our Sebasticook, individually, and by Town of Winslow

and Save Our Sebasticook, jointly, are denied.

(B) The requests for stay of the Commission’s January 23, 2004 Order filed by

Town of Winslow and Save Our Sebasticook and by James L. Gorman are denied.

By the Commission. Chairman Wood concurring with a separate statement

attached.

( S E A L ) Commissioner Kelly not participating.

Linda Mitry,

Acting Secretary.

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

FPL Energy Maine Hydro, LLC Project No. 2552-065

(Issued May 6, 2004)

WOOD, Chairman, concurring:

I am sensitive to the concerns raised by Save Our Sebasticook and the Town of

Winslow. The loss of the Fort Halifax Project’s reservoir and the affect on the

surrounding environment will certainly have a deep and lasting impact. However, the

staff’s Environmental Assessment (EA) fully and adequately addressed the

environmental issues concerning the surrender and partial removal of the project’s dam.

Taking into consideration the issues raised by the parties and the findings and

recommendations contained in the EA, I must conclude that the economics of operating

the project with the needed improvements for adequate fish passage makes surrender FPL

Maine Hydro’s only alternative. I disappointedly concur.

___________________________

Pat Wood, III

Chairman

Get the facts on the dam.

Opportunities for Public Input on Fort Halifax Dam Fisheries Restoration Plans and/or Dam Licensing Decisions.

TU/Kennebec Coalition Filings at FERC  Regarding Fort Halifax Dam

Summary of FERC and ACOE related activity during 2004 Pertaining to the Fort Halifax Project No. 2552-065

Expected Impacts to Ice Regime on Sebasticook and Kennebec RiversResulting from Breaching of Ft. Halifax Dam