Mr. David Littell, Commissioner
Maine Dept. of Environmental Protection
17 State House Station
Augusta, ME 04333-0017

Mr. George Lapointe, Commissioner
Maine Dept. of Marine Resources
21 State House Station
Augusta, ME 04333-0021

Mr. Patrick Keliher, Executive Director
Maine Atlantic Salmon Commission
161 Capital Street
Augusta, ME 04333-0172


BY REGISTERED MAIL


March 20, 2006


RE: 2006 Transport of Atlantic Salmon, American Shad and River Herring above Lockwood Dam, Kennebec River, Waterville, Maine.


Dear Commissioners,

This spring and summer the State of Maine intends to transport via aerated truck adult Atlantic salmon, American shad and river herring above the Lockwood Dam in Waterville, Maine due to the completion of a “fish trap” at the dam. This fish trap was constructed as part of the dam owner’s federal license and State of Maine water quality certification order for the Lockwood Dam.

Normally, we would be highly pleased with this development. However, indisputable facts force us to adopt a different perspective. Today, none of the main-stem Kennebec River dams below Madison (Lockwood, Hydro Kennebec, Shawmut and Weston) are equipped with any safe and effective downstream passage facilities for Atlantic salmon, American shad and river herring. For this reason, we are very concerned that transport of salmon, shad and river herring above the Lockwood Dam in 2006 will result in significant turbine mortality to these fish as they attempt to migrate back down the Kennebec River after spawning, thus defeating the purpose of transporting the fish in the first place. For this reason we are requesting Maine DEP and its sister agencies suspend plans to transport of Atlantic salmon, American shad and river herring above the Lockwood Dam during the 2006 migration season.

Our concern about this situation is heightened by a March 8, 2006 Order by the Federal Energy Regulatory Commission regarding existing downstream passage at the Lockwood Dam. This Order cites recent monitoring conducted by the Lockwood Dam licensee which states downstream migrants pass through the dam turbines. The FERC Order states at p. 1:

“Based on observation from 2000 to 2004, it was determined that juvenile alewives and American shad utilize the turbines, spill and leakage along the flashboard sections, and to a lesser extent the forebay sluice. Downstream migrants were found to not use the sluice above the head gates.”

This report states that to date few alewives and shad appear to be using the two “interim” downstream passage routes provided at the Lockwood Dam to prevent these fish from entering the project turbines; and no downstream passage studies have been conducted on adult Atlantic salmon, American shad or river herring at the Lockwood Dam. The report further asserts that no studies of the effectiveness of the “interim” downstream passage measures at the Lockwood Dam are scheduled to be conducted in 2006. Studies are not to begin until 2007 at the earliest. Conditions are similar at the other three main-stem Kennebec River dams.

To our knowledge, the State of Maine has no plans to monitor the ability of adult salmon, shad and river herring to safely migrate back down the Kennebec River past these main-stem dams in 2006 -- or to determine if these animals are being killed in the turbines of these dams. Similarly, we are not aware of any contingency plans or agreements between dam owners and the State of Maine to shut down turbines or otherwise prevent these animals from being killed as they migrate down river in 2006. These facts and others outlined in this letter show that significant and severe fish kills of these species may occur in 2006 at these dams without any documentation or notice by State of Maine fisheries agencies or Maine DEP -- and no way to prevent these kills as they happen.

No evidence or facts suggest transporting salmon, shad and river herring above these dams will not cause fish kills at the Lockwood, Hydro Kennebec, Shawmut and Weston dams in 2006. All evidence and facts point to the opposite conclusion: fish kills will occur. Maine DMR and the Maine Atlantic Salmon Commission have the option and opportunity to prevent these fish kills by not transporting Atlantic salmon, American shad and river herring above the Lockwood Dam in 2006.

I. Biological Impact

The time at which post-spawned shad and river herring migrate back down the Kennebec River coincides with mid-summer low water levels in the river. During this period, nearly all river flow except flashboard leakage is channeled into the project turbines of the main-stem Kennebec dams. Post-spawned shad and herring will most likely attempt to migrate downriver through the project turbines during this period and incur significant mortality and injury. Shad and river herring tend to be in poor physical condition after spawning, are highly susceptible to de-scaling, and have difficulty tolerating minor injuries. Shad and river herring populations in the northern section of their range tend to have greater than 50 percent repeat spawners. Repeat spawners are a very important and most likely essential component of healthy shad and river herring populations in New England, Maine and the Kennebec River. Their importance to runs in the very early phase of restoration, such as on the Kennebec, are much greater. Repeat spawners are the seed corn. Their lives must be protected so they can return to the river to spawn again. This situation is especially acute for American shad, since Maine DMR does not even know how many adult American shad are in the Kennebec River today and does not know what portion of the population may be captured at the Lockwood Dam fish trap. If a significant portion of the American shad population enter the Lockwood fish trap and are transported upriver, the entire river population could lose most of its repeat spawners. This would have a grave impact on the ability of the Kennebec River’s American shad population to restore itself. This is supported by a recent statement by fisheries scientist Nate Gray of Maine DMR to the members of the Kennebec Valley Chapter of Trout Unlimited. Mr. Gray said:

"We do have the ability to catch shad and have been successful with gill net, electrofishing, as well as angling. The population is small enough where we will not sacrifice a fish to determine origin. We did a tagging study last year with RFID/pit tags as well as floy tags. I think we caught about 50. All with a gill net."

It goes without saying that if Maine DMR believes the Kennebec River American shad population is so small that they will not risk killing an adult shad to determine if it is of wild or hatchery origin (by examining its otolith, or inner ear bone), the Kennebec River American shad population cannot tolerate any loss of adult shad due to turbine entrainment in the main-stem Kennebec River dams.

At present native American shad and river herring live in the 40-mile free-flowing reach of the Kennebec River between the Lockwood Dam in Waterville and Merrymeeting Bay. There is an abundance of high quality spawning and nursery habitat for these species from Waterville to Merrymeeting Bay that today is well below its biological carrying capacity. Post-spawned shad and river herring below Waterville can swim freely to the mouth of the Kennebec River without any risk of injury at dams. This maximizes the survival of post-spawned shad and river herring, thus increasing the number of repeat spawners in future years. Without safe and effective downstream passage at the main-stem Kennebec River dams, the transport of adult shad and river herring above these dams in 2006 will undoubtedly result in the death and severe injury of these fish as they attempt to migrate back downstream during the summer months. Post-spawned shad and river herring injured at these dams are not capable of becoming repeat spawners since at this life stage they cannot tolerate injuries. This death and injury can be completely averted by not transporting adult shad and herring above the Lockwood Dam in 2006.

The situation is far more acute for Atlantic salmon. The Maine Atlantic Salmon Commission has no idea how many Atlantic salmon return each spring to the Kennebec River -- except that the number is exceedingly small. Available data since 1998 shows perhaps as few as 10-20 adult Atlantic salmon return to the Kennebec River each year to spawn, contrasted from a historic population of 100,000 salmon. This represents a population reduction of four orders of magnitude. Like all Maine and southern Canadian salmon populations, the remnant Kennebec Atlantic salmon population has declined sharply since the early 1990s and has shown no sign of rebounding to pre-1990s levels in recent years.

Despite these facts, the Maine Atlantic Salmon Commission plans to transport all Atlantic salmon captured at the Lockwood Dam to the Sandy River, located above four main-stem Kennebec River dams. This action will most likely lead to the death of all of the transported salmon as they attempt to swim back down the Kennebec River after spawning. In contrast, if these salmon were left alone and allowed to spawn in the Kennebec River and tributaries below Waterville, all of the salmon could safely return to the ocean after spawning.

The Kennebec River Atlantic salmon population is now hovering near extinction. It cannot tolerate the loss of any adult spawners. Repeat spawners are critical to Atlantic salmon populations because repeat spawning females are twice as large as maiden spawners (8 lbs. vs. 14-22 lbs.) and carry a proportionally larger number of eggs. Repeat spawners are especially critical to the Kennebec River Atlantic salmon population, which has almost no spawners left of any age or size.

Commercial fishing records from the Kennebec River prior to 1837 show that a substantial portion of the Kennebec River Atlantic salmon population consisted of adults from 18 to 22 pounds in size, ie. repeat spawners. Repeat spawning female salmon of this size carry enough eggs to equal that of two maiden females. For a population as depressed as the Kennebec River Atlantic salmon population, the viability of repeat spawners can effectively double the size of the actual population in terms of the number of eggs produced. Maine’s “plan” to transport salmon above the Lockwood Dam defeats this evolved survival attribute of Atlantic salmon by practically ensuring there will be no repeat spawners in the population. They will all be killed in the dams after spawning. It is difficult to comprehend how this practice will help the Kennebec River Atlantic salmon population recover and avoid extinction. Recruitment requires parents.

To its credit, the Maine Atlantic Salmon Commission has issued strict rules to the Lockwood dam owner regarding handling of any Atlantic salmon which enter the “fish trap” at the dam in 2006. These rules, as stated by the Salmon Commission, exist to prevent any injury to Atlantic salmon in the trap facility. Similarly, the Commission will not allow handling or transport of Atlantic salmon at the Lockwood Dam fish trap if ambient water temperatures are too high, which could result in the death of any salmon in the facility due to stress and injury. The high degree of care and concern exhibited by the Salmon Commission for adult Atlantic salmon entering the Lockwood fish trap facility is laudable and biologically sound. For the exact same reasons, no Atlantic salmon should be transported and released above the main-stem Kennebec River dams in 2006. Such a release will invariably result in the death of these salmon as they attempt to migrate back down river after spawning.

The same logic applies to Atlantic salmon smolts born from returning adult salmon. The Kennebec River Atlantic salmon population is now at the brink of extinction. It cannot tolerate any loss of Atlantic salmon smolts as they migrate to the Atlantic Ocean.

The Maine Atlantic Salmon Commission has mapped 10,000 units of Atlantic salmon growing and nursery habitat in the Kennebec River below Waterville (1 unit = 100 sq. meters of habitat). This is nearly twice the salmon habitat in the entire Machias River. Atlantic salmon born in this habitat below Waterville face no dam passages as they migrate to the Atlantic Ocean. Atlantic salmon born in the Sandy River must survive four consecutive dam passages -- without the benefit of safe downstream passage -- in order to reach the lower Kennebec River alive. The Maine Atlantic Salmon Commission has no data to estimate the mortality rate of Atlantic salmon smolts attempting to pass each main-stem Kennebec River Dam and the cumulative mortality of their attempt to pass all them, which they must to reach the Atlantic Ocean and swim to their adult feeding grounds near Greenland.

Even at an extremely optimistic estimate of 80 percent survival at each Kennebec dam, a cohort of 10,000 Atlantic salmon smolts leaving the Sandy River would be reduced to 4,000 smolts upon reaching Waterville (four dam passages). This represents 60 percent mortality due to dams alone. There is no evidence these dams allow 80 percent survival of Atlantic salmon smolts. Arithmetic shows that with smolt survival rates of less than 80 percent at each dam, nearly all of the Atlantic salmon smolts leaving the Sandy River will be dead before they reach the Kennebec River’s head of tide in Augusta, Maine. In contrast, Atlantic smolts born in the Kennebec River below Waterville, Maine face no dam passages and therefore do not suffer any death due to dam passages. This arithmetic exercise shows the chance of survival of Atlantic salmon smolts born in the river below Waterville is far higher than those born in the Sandy River.

For this reason, the “plan” to remove Atlantic salmon from the Kennebec River in Waterville and transport them above four main-stem dams lacking downstream passage makes no biological sense and is severely counterproductive to Maine’s goal of restoring the Kennebec River’s native Atlantic salmon population to its historic abundance. Far from being a plan to restore Atlantic salmon, this “plan” could in fact cause the final extirpation of Atlantic salmon from the Kennebec River.

These facts show Maine fisheries agencies’ plan to transport and release salmon, shad and river herring above the Lockwood Dam in 2006 will provide no benefit to these species, will result in the death of hundreds or thousands of these animals, and will in no way enhance or move forward Maine’s goal of restoring these animals to their historic abundance in the Kennebec River.

II. The National Academy of Sciences.

In its landmark 2004 study, Atlantic Salmon in Maine, the National Academy of Sciences paid especial attention to the remnant, wild population of Atlantic salmon in the Kennebec River. The Academy stated:

"The report on the genetic status of Maine's salmon (NRC 2002a) included salmon from Togus Stream and Bond Brook (collectively labeled Kennebec) in its comparison of genetic assignment success rates among Maine drainages (King et al. 1999). A close examination of the data (NRC 2002a) shows that the salmon populations of the Kennebec drainage are more distinct than are those of the current DPS rivers. The current populations are wild, and they should figure prominently in any restoration effort. The committee concludes that there is nothing to lose by not stocking the Kennebec (NRC 2002b). Atlantic salmon seem to be recolonizing the upper Kennebec main stem above the Togus and Bond Brook tributaries. There is preliminary evidence that salmon are already spawning as far upriver as Ticonic Falls, 19 miles above the former dam site (P. Christman, personal communication, 2002). The opportunity to observe the course of that rebound, in the absence of stocking, should not be missed."


The plan of the Maine Atlantic Salmon Commission to capture wild Kennebec River Atlantic salmon at the Lockwood Dam and transport them to the Sandy River in 2006 runs completely contrary to the scientific findings and recommendations of the National Academy of Sciences. The Academy explicitly recommended a “hands-off” policy toward Atlantic salmon in the Kennebec River. We are not aware of any data or evidence gathered by the Maine Atlantic Salmon Commission since 2004 which shows this explicit scientific recommendation of the National Academy should now be ignored.

III. Legal Impact

The decision to transport adult Atlantic salmon, American shad and river herring above the Lockwood Dam in 2006 is discretionary and within the jurisdiction of Maine DMR and the Maine Atlantic Salmon Commission. No statute requires these fish to be transported above the Lockwood Dam in 2006. In fact, the Maine Atlantic Salmon Commission has stated it will not allow Atlantic salmon to be handled or transported at the Lockwood Dam if river temperatures are too high because the stress could kill the salmon. Given the large amount of high quality spawning and rearing habitat for these species below the Lockwood Dam, there is no compelling biological reason to transport fish above Lockwood in 2006. A decision by Maine DMR and the Maine Atlantic Salmon Commission to transport salmon, shad and river herring above the Lockwood Dam in 2006 is tantamount to causing and creating a fish kill because the main-stem Kennebec Dams lack any safe and effective downstream passage for post-spawned salmon, shad and river herring.

A decision by State of Maine agencies to not transport Atlantic salmon, American shad and river herring above the Lockwood Dam in 2006 in no way violates the federal licenses for these dams, Maine water quality certification orders for these dams or the KHDG agreement. Such a decision is simply a recognition that all facts and evidence show transporting these fish above the dams in 2006 will result in the death of many or most of these fish due to turbine entrainment. The Maine Atlantic Salmon Commission has wisely stated it will not allow Atlantic salmon to be handled or transported at the Lockwood Dam if river temperatures are too high because the stress could kill the salmon. This is a plain admission by the Maine Atlantic Salmon Commission that if transporting salmon at the Lockwood Dam may harm or kill the salmon, the activity will not be conducted. All available facts and evidence show that transporting Atlantic salmon above the Lockwood Dam in 2006 places these animals in grave risk of being killed as they migrate back down river. This will defeat the entire purpose of the transport program. No biological rationale exists to transport and release these native fish into a place where their death is a near certainty.

IV. Maine Water Quality Standards.

A decision by the State of Maine fisheries agencies to transport salmon, shad and river herring above the Lockwood Dam in 2006 will violate the Class B statutory water quality standard for the Kennebec River. This standard requires the habitat be “unimpaired” and suitable for all aquatic species indigenous to the waterbody. These standards must be met at all times. The inability of any transported salmon, shad and river herring to safely migrate back down the Kennebec River after spawning in the Kennebec River above the Lockwood Dam will violate both of these narrative water quality standards and thereby cause this section of the Kennebec River to fail to meet its Class B water quality standard.

The decision by Maine fisheries agencies to transport salmon, shad and river herring above the Lockwood Dam in 2006 is discretionary. No statute allows Maine fisheries agencies to undertake activities that will cause severe violations of a waterbody’s assigned water quality standards and classification, ie. causing and creating a fish kill. This situation is entirely the work of the State of Maine itself, which agreed in 1998 to suspend immediately pending requirements for installation of safe and effective downstream passage at the Lockwood, Hydro Kennebec, Shawmut and Weston dams. This suspension was put into effect by Maine DEP in its July 31, 1998 Order which modified existing Maine water quality certification orders for these dams pursuant to the 1998 KHDG agreement.

Each of these water quality certification orders as modified in 1998 declare that the conditions within the orders provide “reasonable assurance” the dams will not violate applicable Maine water quality standards. This finding of “reasonable assurance” is required by §401 of the federal Clean Water Act and Maine statute. Water quality certification orders cannot be issued without this finding. This finding will no longer be true and accurate if Maine fisheries agencies, at their own discretion, transport salmon, shad and river herring above the Lockwood Dam. As such, the State of Maine itself -- not the dam owners -- will be knowingly violating the “reasonable assurance” portion of these water quality certification orders and thereby violating the Class B water quality standard assigned to the Kennebec River. Because the Maine water quality certification orders for these dams do not require installation of safe and effective downstream passage for salmon, shad and river herring in 2006, the only course of action that will prevent fish kills of these species and not cause violations of the Kennebec River’s assigned water quality standard is for Maine’s fisheries agencies to suspend their plan to transport salmon, shad and river herring above the Lockwood Dam in 2006.

V. A Train Wreck That Can Be Avoided.

The coming train wreck was set in motion in 1998 when Maine DEP modified water quality certification orders for the main-stem Kennebec Dams which removed requirements for installation of safe and effective downstream passage at the same date upstream passage was to be installed. Prior to their modification in 1998, these water quality certification orders logically required provision of downstream passage concurrently with the provision of upstream passage. This was based on the simple biological fact that migratory fish species must have a safe way to get downstream past dams after they have spawned.

In 1998 this sound biological reasoning was thrown out the window. Because the 1998 modifications delayed any upstream passage at the Kennebec Dams until 2006, it was decided the issue of downstream passage could be shelved until a later date. That “later date” is now upon us. It is 2006. Now the problem needs to be solved. If the problem is not solved, thousands of fish will die in 2006.

No safe and effective downstream passage exists today at any of the main-stem Kennebec River Dams. Fish released above these dams have no safe way to migrate back downriver without being killed in hydroelectric turbines. No effective facilities exist to keep migrating fish from entering these turbines and being killed. Since 1998, dam owners have had the voluntary option of placing protective screens across turbine intakes to prevent fish from entering them. They have declined to do so. Since 1998, dam owners have had the voluntary option to conduct studies to show their turbines do not harm migrating salmon, shad or river herring. They have declined to do so. Since 1998, dam owners have had the option to conduct studies showing that few, if any, migrating fish are entrained in their turbines. They have declined to do so. The State of Maine has had the opportunity to independently conduct such studies themselves. Maine has declined to do so. Dam owners and the State of Maine have the opportunity to conduct rigorous studies in 2006 to determine if transported fish are entrained in project turbines. Both have declined to do so. In 1998 Maine surrendered its legal right to require safe downstream passage at these dams in 2006 through its modification of water quality certification orders for these dams. While Maine can claim it has “no legal right” to require safe downstream passage at these dams in 2006, Maine has the option of not transporting salmon, shad and river herring above the Lockwood Dam in 2006. Maine does have this legal right. Maine has no legal right to willfully and knowingly put these animals in harm’s way -- into a place where they will almost certainly be killed -- by transporting salmon, shad and river herring above the Lockwood Dam in 2006.

VI. Conclusion

The availability of upstream passage for Atlantic salmon, American shad and river herring in 2006 should be a cause for celebration. Friends of the Kennebec Salmon would very much like to celebrate and publicize this historic moment. We are very disappointed that we cannot celebrate this moment due to the scientific facts described above. Our organization’s interest began and will always remain dedicated to the safety and welfare of the native, migratory fish of the Kennebec River. A population is wholly comprised of individuals. For this reason, our organization’s efforts focus on the individual fish of the Kennebec River. The safety and welfare of each and every one is important. The death of any individual salmon, shad or river herring due to avoidable causes is a setback to restoring these animals to their historic abundance in the Kennebec River. In the case of Atlantic salmon, the loss of one female salmon is cause for great concern. An animal population reduced to less than 20 adults cannot tolerate any loss of egg-bearing mothers. American shad are in a similarly precarious situation in the Kennebec River because despite many years of studies the State of Maine does not even know how many native adult shad remain in the Kennebec River today. Whatever their actual number, the wild, native female American shad of the Kennebec are the seed corn of the population’s restoration. They cannot tolerate any avoidable loss or death at this time. Maine’s natural resource agencies now have before them an option that will ensure that none of the Kennebec River’s native Atlantic salmon, shad and river herring are killed or injured at dams on the Kennebec River in 2006. This option consists of continuing the status quo of not transporting these animals above the Lockwood Dam. Capturing these animals at the Lockwood Dam and releasing them above the dam will kill them. These deaths can be completely avoided by not catching and trucking these fish above the Lockwood Dam in 2006. For these reasons we request Maine DEP and its sister agencies agree to suspend their plan to transport Atlantic salmon, American shad and river herring above the Lockwood Dam in 2006 and instead leave the fish alone so they may spawn below the Lockwood Dam without risk of death.


Sincerely,


Douglas Watts, president
Friends of the Kennebec Salmon
P.O. Box 2473
Augusta, ME 04338