An Act Regarding the Water Quality Certification of Graham Lake on the Union River (AFTER DEADLINE)
Maine Legislature, Session 129, LD 1687
Committee: Environment and Natural Resources
Sponsors: LUCHINI, GROHOSKI, CARSON, GRAMLICH, TUCKER
Amends: 38 MRSA §464

Legislative Document
No. 1687
S.P. 552
In Senate, May 7, 2019
An Act Regarding the Water Quality Certification of Graham Lake 
on the Union River
(AFTER DEADLINE)
(EMERGENCY)
Approved for introduction by a majority of the Legislative Council pursuant to Joint Rule 
205.
Reference to the Committee on Environment and Natural Resources suggested and ordered 
printed.
DAREK M. GRANT
Secretary of the Senate
Presented by Senator LUCHINI of Hancock.
Cosponsored by Representative GROHOSKI of Ellsworth and
Senator: CARSON of Cumberland, Representatives: GRAMLICH of Old Orchard Beach, 
TUCKER of Brunswick.
Emergency preamble. Whereas, acts and resolves of the Legislature do not 
become effective until 90 days after adjournment unless enacted as emergencies; and
Whereas, Graham Lake in the City of Ellsworth is an impoundment lake that is 
created by a privately owned dam for the purpose of generating electricity; and
Whereas, the water level of the lake can fluctuate substantially depending on the 
dam owner's need to generate electricity and other seasonal factors; and
Whereas, there are many recreational users of the lake and waterfront homes with 
docks that in the past several years have been left dry due to extremely low water levels; 
and
Whereas, the next recreation season is likely to commence well before the 
expiration of the 90-day period; and
Whereas, in the judgment of the Legislature, these facts create an emergency within 
the meaning of the Constitution of Maine and require the following legislation as 
immediately necessary for the preservation of the public peace, health and safety; now, 
therefore,
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  38 MRSA §464, sub-§9-A, ¶C-1 is enacted to read:
C-1.  For the purposes of water quality certification under the Federal Water 
Pollution Control Act, Public Law 92-500, Section 401, as amended, and licensing of 
modifications under section 636, Graham Lake, located in the Union River, main 
stem, is deemed to have met the habitat characteristics and aquatic life criteria in the 
existing impoundment if that habitat and aquatic life satisfy the aquatic life criteria 
contained in section 465, subsection 3, paragraph C, except that habitat and aquatic 
life in the portions of the water body affected by annual drawdowns of up to 4 feet 
may reflect the effects of such drawdowns, based on a use attainability analysis 
conducted by the board pursuant to subsection 2-A.
Sec. 2.  Volitional upstream fish passage for Ellsworth Lake and Graham 
Lake.  For the purposes of water quality certification of the multistation hydropower 
facility at the Ellsworth Hydroelectric Project, Federal Energy Regulatory Commission 
Project Number 2727, under the Federal Water Pollution Control Act, Public Law 92-
500, Section 401, as amended, and licensing of modifications under the Maine Revised 
Statutes, Title 38, section 636, and any other licensing proceeding affecting the project, 
the failure to install a volitional upstream fish passage for anadromous fish species at 
Ellsworth Lake Dam and Graham Lake Dam within 10 years of federal relicensure of the 
project constitutes a revocation of a water quality certification under the Federal Water 
Pollution Control Act, Public Law 92-500, Section 401.  For purposes of this section, 
"volitional upstream fish passage" means a fish passage in which a fish swims upstream 
past an obstruction under the fish's own volition rather than being trapped and hauled 
around the obstruction by means other than the fish's own volition.
Sec. 3.  Department of Environmental Protection water quality 
certification of Ellsworth Hydroelectric Project.  The Department of 
Environmental Protection may not waive water quality certification authority under the 
Federal Water Pollution Control Act, Public Law 92-500, Section 401, as amended, for 
any state or federal licensing regarding the Ellsworth Hydroelectric Project, Federal 
Energy Regulatory Commission Project Number 2727, and shall file any water quality 
certification issued by the department to the United States Environmental Protection 
Agency for approval under the Federal Water Pollution Control Act.  A failure of the 
Department of Environmental Protection to file timely a water quality certification with 
the United States Environmental Protection Agency under this section is deemed to be a 
denial of water quality certification by the department for state and federal licensing 
purposes.
Emergency clause.  In view of the emergency cited in the preamble, this 
legislation takes effect when approved.
SUMMARY
This bill provides that for the purposes of water quality certification under the Federal 
Water Pollution Control Act:
1.  Graham Lake located in the Union River in the City of Ellsworth may be subject 
to drawdowns of lake levels of up to 4 feet and still be deemed to meet state water 
classification standards;
2.  The Department of Environmental Protection may not waive water quality 
certification under the Federal Water Pollution Control Act for the Federal Energy 
Regulatory Commission license for the Ellsworth Hydroelectric Project and failure of the 
department to file timely a water quality certification is deemed to be a denial of water 
quality certification; and
3.  The Ellsworth Hydroelectric Project is subject to an involuntary water quality 
decertification if the project does not provide for a volitional upstream fish passage over 
both the Graham Lake Dam and Ellsworth Lake Dam within 10 years of the project's 
relicensure.