UNITED STATES OF AMERICA111 FERC 62,065 FEDERAL ENERGY REGULATORY COMMISSION. PPL Maine LLC Project No

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1 UNITED STATES OF AMERICA111 FERC 62,065 FEDERAL ENERGY REGULATORY COMMISSION PPL Maine LLC Project No ORDER MODIFYING AND APPROVING AMENDMENT OF LICENSE (Issued April 18, 2005) On June 25, 2004, PPL Maine LLC (licensee) filed an application to amend its license for the Stillwater Project No located on the Stillwater Branch in Penobscot County, Maine. 1 The proposed amendment to article 401 would increase the reservoir elevation by one foot, while the proposed amendment to article 402 would reduce the required minimum flows in both the east and west bypassed channels. The proposed amendments to Articles 406, 407, and 408 would extend deadlines relating to the installation of upstream and downstream fish passage facilities. The proposed amendment to Article 409 substitutes a new reservation of authority to prescribe fishways under section 18 of the Federal Power Act. The proposed addition of a new license article would require the license to develop a contingent mitigation fund. Granting these amendments is in the public interest because the amendments are components of a comprehensive settlement agreement which will contribute to the fishery restoration program in the Penobscot Basin and provide for the generation of significant amounts of electric power at the hydroelectric projects covered by the agreement. For the reasons stated below, I am granting the amendment application. BACKGROUND On June 25, 2004, the licensee also filed the Lower Penobscot River Basin Comprehensive Settlement Accord (Comprehensive Settlement), which is composed of agreements entered into by the licensee, Bangor-Pacific Hydro, the Penobscot Indian Nation (PIN), the U.S. Department of the Interior (Interior) acting through its bureaus the U.S. Fish and Wildlife Service (FWS), the U.S. Bureau of Indian Affairs (BIA), and the National Park Service (NPS), the Maine agencies, 2 the Conservation Interests, 3 and the Penobscot River Restoration Trust (Trust) concerning the Veazie Project No. 2403, Milford Project No. 2534, Medway Project No. 2666, Orono Project No. 2710, Stillwater 1 A new license was issued for the Stillwater Project on April 20, FERC 61, The Maine State Planning Office, the Maine Atlantic Salmon Commission, the Maine Department of Inland Fisheries and Wildlife, and the Maine Department of Natural Resources. 3 American Rivers, Inc., the Atlantic Salmon Federation, the Maine Audubon Society, the Natural Resources Council of Maine, and Trout Unlimited.

2 Project No Project No. 2712, Howland Project No. 2721, Basin Mills Project No , Great Works Project No and West Enfield Project No The Comprehensive Settlement includes the Lower Penobscot River Multiparty Settlement Agreement, dated June 2004 (MPA or Agreement). This filing does not request that the Commission approve the Comprehensive Settlement. Rather, the parties to the Comprehensive Settlement request that the Commission approve individual project amendment applications to implement the initial phase of the Comprehensive Settlement. Section IV of the MPA requires the concurrent filing with the Commission of a number of requests and applications. These various requests and applications (Phase 1 Requests), if granted by the Commission without alteration or change that materially prejudices any party to the Agreement, will permit the parties to proceed to the subsequent phases of the MPA and thus realize the full public interest benefits contemplated by the MPA, including transfer and surrender of some licenses, 4 and increased generating capacity at other projects. Once fully implemented, this will ultimately result in restoring access to more than 500 miles of fish habitat in the Penobscot River Basin for Atlantic salmon and other anadromous fish. The State of Maine would retain 90 percent of the hydropower generated on the Penobscot because the licensees would be able to increase generation at other dams. PROPOSED STILLWATER AMENDMENT Headpond Increase In order to enhance generation output as proposed in the MPA, the licensee proposes to increase the normal impoundment level at the Stillwater Project by one foot, from feet to feet. This will result in approximately 965 megawatt hours of additional generation annually. The increase in elevation will be accomplished by simply adding one foot of height to the existing flashboard system and adding flashboards to the non-overflow sections of the dam as necessary to maintain flood flow discharge capacity while allowing the normal headpond increase. Minimum Flow Modification In order to enhance generation output as proposed in the MPA, the licensee also proposes to modify the minimum bypass flow requirements at the Stillwater Project by reducing the release to the west bypassed channel from 40 cubic feet per second (cfs) to 4 The Veazie and Great Works Projects would be decommissioned and their dams removed; Howland would be decommissioned and studied for potential dam removal.

3 Project No cfs and by reducing the release to the east bypassed channel from 155 cfs to 50 cfs. 5 This change in the minimum bypass flows will be accomplished by reducing the openings in the flashboard system on the main dam, and the section of the dam above the east channel bypass, to allow passage of the modified flows on a continuous basis. Specifically, the licensee will adjust the openings in the flashboards to provide for 20 cfs from the west channel (1.6-foot opening in the flashboards) and 50 cfs from the east channel (4.4-foot opening in the flashboards). These openings will allow the necessary releases when the headpond is up to one-foot lower than normal full pond elevation (as allowed for by article 401), and the new openings are calculated at the requested modified normal full pond elevation of feet. In addition, the licensee will continue to provide and monitor the releases according to the approved minimum flow monitoring plan. Fish Passage In order to implement the MPA, the licensee asks that Articles 406, 407, 408 and 409 be amended so that they are consistent with the DOI modified fishway prescriptions filed July 1, 2004, as specified in Attachment A of the MPA (four substitute articles for articles 406, 407, 408, and 409). Contingent Mitigation In order to fully mitigate for any potential habitat impacts associated with the requested modifications at the Stillwater Project and requested modifications at the other projects associated with the MPA, parties to the MPA developed a contingent mitigation fund (Attachment B to the MPA). The parties agreed that the impacts will be fully mitigated by removal of the Veazie Project and Great Works Project dams. If those dams are not removed, the MPA provides for the establishment of the contingent mitigation fund and requires the licensee to make monetary payments to the fund in certain circumstances, as specified in Attachment B to the MPA, to fully mitigate for the habitat impacts. The licensee proposes to add an article to the license requiring it to comply with the provisions of Attachment B. AGENCY COMMENTS On June 29, 2004, Commission staff issued a public notice of the applications and requested comments, motions to intervene, or protests. Nine entities filed comments and/or interventions in response to the public notice. The intervenors include: Interior, NOAA Fisheries, Maine State Planning Office, PIN, and the Conservation Interests (American Rivers, Atlantic Salmon Federation, Maine Audubon Society, Natural 5 Article 402 of the license, as amended June 29, 2001 (95 FERC 62,292), specifies flows of 40 cfs and 155 cfs in these channels.

4 Project No Resources Council of Maine, and Trout Unlimited). On November 3, 2004, Commission staff issued a draft environmental assessment (DEA) for comment and requested that comments be filed by November 30, On November 29, 2004, a joint letter was filed on behalf of American Rivers, Atlantic Salmon Federation, Maine Audubon Society, Natural Resources Council of Maine, PIN, and Trout Unlimited supporting the conclusion of the DEA. The FWS, by letter dated November 30, 2004, also concurred with the conclusion in the DEA. NOAA Fisheries, by letter dated November 29, 2004, provided comments and recommendations on the DEA. NOAA Fisheries states it is uncomfortable with any proposal that would bind it to an agreement it neither negotiated nor signed (article 410 for the Veazie Project, article 411 for the Milford Project, and article 409 for the Stillwater Project). NOAA Fisheries is not willing to restrict its authority to the MPA, however, it would not object to articles with reservation of authority language limiting the exercise of its prescriptive authority to Attachment A, which outlines fish passage requirements and does not prevent NOAA Fisheries from doing anything that it could reasonably be expected to do otherwise. NOAA Fisheries notes that it submitted fishway prescriptions for the basin in 1995 and that FWS offered similar prescriptions in NOAA Fisheries believes that both prescriptions remain relevant and are supported by the best available science. The MPA, however, necessitates modification to these earlier prescriptions to reach the desired fish passage and habitat related goals. Further, NOAA Fisheries believes that Attachment A to the MPA directly reflects the requirements of the USFWS July 1, 2004, prescriptions, and also satisfies the fish passage goals of NOAA Fisheries 1995 prescription. Pursuant to Section 18 of the Federal Power Act (FPA), NOAA Fisheries states it adopts and incorporates by reference the prescriptions set forth in its November 29, 2004 letter (Attachment III) as its preliminary prescriptions, consistent with Attachment A of the MPA (for the projects specified in this action). The notable exception is the articles limiting reservation of authority. NOAA Fisheries also states that the present license article modifications proposed by the licensees, excepting the reservation of authority issue outlined above, satisfy these prescriptions. NOAA Fisheries offers one additional preliminary prescription modification pursuant to Section 18 of the FPA: Integral to its development of fishways, PPL shall develop a plan to monitor the effectiveness of all the facilities and flows provided pursuant to the articles of this license that will enable the efficient, timely, and safe passage of diadromous fish migrating upstream and downstream. The plan shall include (1) a description of the criteria and a process that will be used to determine if efficient, timely, and safe passage of Atlantic salmon, American shad, alewife, blueback herring, and American eel utilizing fishways has been achieved, and (2) a process for

5 Project No evaluating whether operational modifications for American eel are necessary to achieve efficient, timely, and safe passage of American eel. The process for determining efficient, timely, and safe passage will include input and consultation with the resource agencies. In so doing, the licensee will utilize biological indicators, such as escapement and recruitment for each species, to assess whether passage for all diadromous species of concern is efficient, timely, and safe. The plan shall include a goal for upstream and downstream passage of each species of concern, a goal for minimizing migratory delay, and a goal for the survival (immediate and delayed) of upstream and downstream migration. Results of these monitoring studies, in addition to results from the monitoring process for all diadromous species, shall be submitted to the participating resource agencies and shall provide a basis for recommending future structural or operational changes at the project. On January 13, 2005, the MDEP provided a final Maine Waterway Development and Conservation Act Permit and Water Quality Certification (WQC) for the Stillwater Project. The revised WQC is attached to this order and made part of the license. In a letter dated March 21, 2005, NOAA Fisheries modifies its preliminary prescription submitted on November 29, 2004 in a manner that maintains consistency with fish passage requirements outlined in the MPA. Specifically, NOAA Fisheries reaffirms the preliminary prescription as its final modified prescription with the only change being that the process prescription for the referenced projects be omitted. In April 2005, a multi-project Final Environmental Assessment (FEA) was issued which analyzed the impacts associated with the amendment requests for the Veazie Project, Milford Project, West Enfield Project, Medway Project, and Stillwater Project. DISCUSSION As indicated in the multi-project FEA, the proposed one-foot increase in headpond elevation at the Stillwater Project will result in minor changes to the area of the project impoundment. The shoreline of the Stillwater impoundment is predominantly steep sided, so the impoundment surface area of approximately 184 acres will be increased minimally to 191 acres. There are prominent hydraulic controls at the upstream end of the impoundment, so the length of the 3.0-mile project impoundment is not expected to increase appreciably. The licensee is proposing to reduce current bypass minimum flows of 40 cfs in the west channel and 155 cfs in the east channel to 20 cfs in the west channel and 50 cfs in the east channel. The licensee s proposed minimum bypass reach flows will reduce habitat in the bypassed reaches somewhat, but the proposed flows are still consistent with the interim flows originally approved by the MDEP in the 1992 Water Quality

6 Project No Certification for the Stillwater Project. The purpose of these modified minimum flows is to provide bypass reach habitat for migratory and resident species. The flows also provide downstream Atlantic salmon smolt passage for migrants from the mainstem of the Penobscot River. The proposed flows, although lower than currently being released, should provide adequate habitat for target bypass reach species and their various lifestages and are consistent with the MPA and supported by the resource agencies. The licensee s proposal to implement the fish passage provisions of the settlement agreement, would support agency fish management plans and objectives. The proposed one-foot increase in impoundment level and decrease in minimum bypass flows would not affect existing or proposed fish passage facilities or their operations. An article, article 414, should be added to the license which requires the licensee to comply with Attachment B of the MPA in developing a contingent mitigation fund which fully mitigates any impacts caused by the requested modifications at the Stillwater Project and the other four projects associated with the MPA. In its filing, the licensee submitted a revised exhibit A drawing reflecting proposed changes to the project features for the Stillwater Hydroelectric Project. The changes are depicted in the following Table 1: Table 1 Description License Revised Exhibit A Normal Water surface elevation, with flashboards (feet mean sea level) Estimated Average Head (feet) Reservoir Surface at full pond (acres) Estimated Average Annual Generation 12,644 14,333 (MWh) Flashboards height (feet) Section C 2 3 Section D Section E Section F 2 3 Section G Section H Section I to 3.8 Section J

7 Project No The revised Exhibit A conforms to the Commissions rules and regulations and is approved by this order. This order will revise the project description in the license to reflect the changes at the project. In addition, the licensee submitted revised Exhibit F and G drawings showing the proposed revisions at the project. The revised drawings replace old F-1 and F-2 drawings, labeled FERC No and in the license. The revised Exhibit F drawings conform to the Commission's rules and regulations and are approved by this order. According to 4.39 (a) and 4.41(h) of the Commission s regulations the licensee is required to provide project boundary data in a geo-referenced format. Each drawing must contain a minimum of three known reference points. The latitude and longitude coordinates, or state plane coordinates of each reference point must be shown. Our review of the revised exhibits G-1 through G-4 found that they lack the three reference points and surveyor stamp as required by our regulations. Therefore, the licensee will be required by this order to file the drawings in compliance with the requirements of 4.39 of the Commission s regulations. Finally, the proposed increase in reservoir elevation will require editorial changes to Ordering Paragraph B of the license to reflect the changes made at the project. The licensee s request to amend its license for the Stillwater Project, with the above modification, is in the public interest and should, therefore, be approved. The Director orders: (A) The revised Exhibit A filed on June 25, 2004, conforms to the Commission's rules and regulations, and is approved and made a part of the license. (B) Ordering paragraph (B)(2) of the license is revised as follows : (2) Project works consisting of: (a) a main concrete gravity dam, about 1,720 feet long, with a maximum height of 22 feet at crest elevation feet National Geodetic Vertical Datum (NGVD), consisting of 13 sections: a non-overflow section, totaling 63 feet long, which serves as abutment and wing-wall, containing a 6-foot-wide unused stop-log sluice gate; a 381-foot-long primary spillway section, with a maximum height of 22 feet at a crest elevation of feet NGVD, topped with 3.0-foot-high pin-supported flashboards; an 85-foot-long by 2.0-footwide by 2.5-foot-high leveling concrete course topped with 1.67 foot-high pin-supported flashboards; a 43-foot-long concrete sill section on top of a ledge island topped with 0.65-foot-high pin-supported flashboards; a 174-

8 Project No foot-long ogee section, with varying heights from 4 to 20 feet, topped with 3- foot-high pin supported flashboards; a 52-foot-long ogee section, with a maximum height of 9 feet, topped with a concrete curb, 15 inches wide by 25 inches high, 1.80-foot-high-pin-supported flashboards; an 89-foot-long spillway section, with an average height of 6 feet topped with 1.05-foot-high pin-supported flashboards; a 42-foot-long spillway section, with a maximum height of 8 feet topped with to 3.8-foot-high pin-supported flashboards; an 89.5-foot-long abutment section, with an average height of 4 feet topped with 0.85-foot-high pin-supported flashboards; a 187-foot-long nonoverflow section, with varying heights from 3 to 12 feet, which abuts an abandoned powerhouse; a 63-foot-long non-overflow section, which is part of the abandoned powerhouse s foundation; a foot-long section, with varying heights from 2 to 4 feet, abutting the old and existing powerhouses; and a foot-long non-overflow section, with a downstream facing earth backfill, having a maximum height of 12 feet, topped with a 2-foot-high concrete curb and a driveway on top of the earth backfill. (b) A concrete and wooden powerhouse, about 83.5 feet long by 32 feet wide by 45 feet high, equipped with four horizontal hydro-electrical generating units: three of which are rated at 450-kilowatts (kw) each, with a net head of 19 feet and a hydraulic capacity of 560 cfs; all totaling a rated capacity of 1,950 kw; a hydraulic capacity range from 380 to 1,700 cfs; an average annual generation of about 14,333,000 kwh; and each having a net head of 19 feet; (c) An impoundment, about 3 miles long, having a surface area of about 191 acres; a gross storage capacity of approximately 1,910 acre-feet; a negligible useable storage capacity; a normal headwater surface elevation of about feet NGVD; and a normal tailwater surface elevation of about feet NGVD; (d) Appurtenant facilities (C) The following revised Exhibit F drawings, filed on June 25, 2004, conform to the Commission's rules and regulations, and are approved and made a part of the license. The superseded exhibits are eliminated from the license. EXHIBIT No. FERC. DRAWING No. DRAWING TITLE SUPERSEDED FERC. DRAWING No. F General Plan and Dam Sections F Powerhouse Plan and Sections

9 Project No (D) Within 45 days of the date of issuance of this order, the licensee shall file the approved exhibit drawings in aperture card and electronic file formats. a) Three sets of the approved exhibit drawings shall be reproduced on silver or gelatin 35mm microfilm. All microfilm shall be mounted on type D (3-1/4" X 7-3/8") aperture cards. Prior to microfilming, the FERC Drawing Number (e.g., P and P ) shall be shown in the margin below the title block of the approved drawing. After mounting, the FERC Drawing Number shall be typed on the upper right corner of each aperture card. Additionally, the Project Number, FERC Exhibit (e.g., F-1, and F-2), Drawing Title, and date of this order shall be typed on the upper left corner of each aperture card. See Figure 1. Figure 1 Sample Aperture Card Format Two of the sets of aperture cards shall be filed with the Secretary of the Commission, ATTN: OEP/DHAC. The third set shall be filed with the Commission's Division of Dam Safety and Inspections New York Regional Office. b) The licensee shall file two separate sets of exhibit drawings in electronic raster format with the Secretary of the Commission, ATTN: OEP/DHAC. A third set shall be filed with the Commission's Division of Dam Safety and Inspections New York Regional Office. Exhibit F drawings must be identified as (CEII) material under 18 CFR (c). Each drawing must be a separate electronic file, and the file name shall include: FERC Project-Drawing Number, FERC Exhibit, Drawing Title, date of this order, and file extension in the following format [P , F-1, General Site Plan, MM-DD-YYYY.TIF]. Electronic drawings shall meet the following format specification: IMAGERY - black & white raster file FILE TYPE Tagged Image File Format, (TIFF) CCITT Group 4

10 Project No RESOLUTION 300 dpi desired, (200 dpi min.) DRAWING SIZE FORMAT 24 X 36 (min), 28 X 40 (max) FILE SIZE less than 1 MB desired (E) Within 60 days from issuance of this order, the licensee is required to file for Commission approval, revised exhibit G drawings reflecting the project boundary as approved by this order. Each exhibit G drawing that includes the revised project boundary map must be stamped by a registered land surveyor and contain a minimum of three known reference points, arranged in a triangular format. The latitude and longitude coordinates, or state plane, of each reference point must be shown and identified on the drawing. (F) Articles 401 and 402 are amended as follows: Article 401: The reference in the first paragraph normal full pond elevation of feet NGVD is amended to read normal full pond elevation of feet NGVD. Article 402: The reference to minimum flows required by the article is amended to read a permanent minimum flow of 20 cubic feet per second (cfs) into the west bypassed channel and a permanent flow of 50 cfs into the east bypassed channel. (G) Article 406 is deleted in its entirely and replaced with the following: Article 406: The licensee shall install and operate permanent downstream fish passage facilities at the Stillwater Project. Fishways shall be maintained and operated to maximize fish passage effectiveness throughout fish migration period(s) as defined below. The downstream migration period is defined as April 1 to June 30 and November 1 to December 15 for Atlantic salmon, July 1 to December 31 for American shad and alewife, August to December 31 for blueback herring, and August 15 to November 15 (or other time periods determined when adequate information is available, and during any spring run that may occur) for American eel. Downstream facilities are to operate whenever generation occurs during the downstream migration period. The Licensee shall keep the fishways in proper order and shall keep fishway areas clear of trash, logs, and material that would hinder passage. Anticipated maintenance shall be performed in sufficient time before a migratory period such that fishways can be tested and inspected and will operate effectively prior to and during the migratory periods. Fishway maintenance and operational plans (including schedules) for all fish passage facilities shall be developed by the Licensee in consultation

11 Project No and cooperation with the U.S. Fish and Wildlife Service (FWS), the Penobscot Indian Nation (PIN), and other fishery agencies (including the Maine Department of Inland Fisheries and Wildlife, Maine Department of Marine Resources, Maine Atlantic Salmon Commission, and NOAA Fisheries). Functional design and final design plans for all fishways shall be developed in consultation and cooperation with the FWS, Penobscot Nation, and other fishery agencies. Downstream fishways shall consist of installation of trashracks with 1" clear opening at the powerhouse turbine intake and gated surface and bottom bypasses discharging up to 70 cfs during the downstream migration period. If shown to be necessary by studies of the effectiveness of these measures, but in no case before the expiration of the safe harbor period delimited in Attachment A, Section II(c) of the Lower Penobscot River Multiparty Settlement Agreement, the licensee shall institute nightly shutdowns for downstream eel passage for a two week period during downstream eel migration season. Within 180 days from the date of the Commission order inserting this replacement article into the license, the licensee shall file, for Commission approval, a plan for installing the licensee's trashracks. This filing shall include a schedule for installing the trashracks with 1-inch clear opening within 1 year of the effective date of the Lower Penobscot River Multiparty Settlement Agreement. Within 6 months of the effective date of the transfer of the licenses for the Veazie (no. 2403), Great Works (no. 2312), and Howland (no. 2721) Projects pursuant to the terms of the Lower Penobscot River Multiparty Settlement Agreement, the licensee shall file, for Commission approval, detailed design drawings for the surface and bottom bypasses. This filing shall include but not be limited to: (1) the location and design specifications of the bypasses; (2) a schedule for installing the facilities within 18 months of a Commission order approving the design drawings; and (3) procedures for operating and maintaining the facilities. The Licensee shall include, with the filings required by the two previous paragraphs, documentation of consultation, copies of agency and PIN comments and recommendations on the drawings, plans, and schedules after they have been prepared and provided to the agencies, and specific descriptions of how the agencies and PIN s comments and recommendations are accommodated by the Licensee's facilities. The Licensee shall allow a minimum of 30 days for the agencies and PIN to comment and to make recommendations before filing the drawings, plans,

12 Project No and schedule with the Commission. If the licensee does not adopt a recommendation, the filing shall include the licensee's reasons, based on project specific information. The Commission reserves the right to require changes to the proposed facilities and schedules. No construction of downstream fish passage facilities shall begin until the Licensee is notified by the Commission that the plan is approved. Upon Commission approval, the Licensee shall implement the proposal, including any changes required by the Commission. Until the surface and bottom bypasses specified above are installed, the licensee shall continue to operate the existing surface weir bypass facilities at the project. (H) Article 407 is deleted in its entirely and replaced with the following: Article 407: The licensee shall install and operate permanent upstream fish passage facilities at the Stillwater Project. Fishways shall be maintained and operated to maximize fish passage effectiveness throughout fish migration period(s) as defined below. The upstream migration period shall be defined April 1 to November 30 for American eel. The licensee shall keep the fishways in proper order and shall keep fishway areas clear of trash, logs, and material that would hinder passage. Anticipated maintenance shall be performed in sufficient time before a migratory period such that fishways can be tested and inspected and will operate effectively prior to and during the migratory periods. Fishway design, maintenance and operational plans (including schedules) for all fish passage facilities shall be developed by the licensee in consultation and cooperation with the U.S. Fish and Wildlife Service (FWS), the Penobscot Indian Nation (PIN), and other fishery agencies (including the Maine Department of Inland Fisheries and Wildlife, Maine Department of Marine Resources (MDMR), Maine Atlantic Salmon Commission, and NOAA Fisheries). Functional design and final design plans for all fishways shall be developed in consultation and cooperation with the FWS, Penobscot Nation, and other fishery agencies. During the first upstream eel migration season after the date of the Commission Order inserting this replacement article into the license, the licensee shall assess the appropriate location for the siting of a new upstream eel fishway at the project, in consultation with the FWS, MDMR, and PIN, and these entities approval of a proposed location, file, for

13 Project No Commission approval, a plan for the fishway. This filing shall include but not be limited to: (1) the location and design specifications of the passage facilities; (2) a schedule for installing the facilities and completing initial testing and have the fishway fully operational prior to the third upstream migration season following the effective date of the Lower Penobscot River Multiparty Settlement Agreement; and (3) procedures for operating and maintaining the facilities. The licensee shall include with the plan documentation of consultation, copies of agency and PIN comments and recommendations on the completed plan after it has been prepared and provided to the agencies, and specific descriptions of how the agencies and PIN s comments and recommendations are accommodated by the plan. The licensee shall allow a minimum of 30 days for the agencies and PIN to comment and to make recommendations before filing the plan with the Commission. If the licensee does not adopt a recommendation, the filing shall include the licensee's reasons, based on project specific information. The Commission reserves the right to require changes to the proposed facilities and schedule. No construction of upstream fish passage facilities shall begin until the Licensee is notified by the Commission that the plan is approved. Upon Commission approval, the licensee shall implement the proposal, including any changes required by the Commission. (I) Article 408 is deleted in its entirely and replaced with the following: Article 408: Within 12 months of the deadline established by Articles 406 and 407 for filing design drawings or a plan for a fish passage device, the licensee shall file with the Commission, for approval, a plan to monitor the effectiveness of all the facilities and flows provided pursuant to Articles 406 and 407 of this license that will enable the efficient and safe passage of diadromous fish migrating upstream and downstream. The results of these monitoring studies shall be submitted to the agencies listed below and shall provide a basis for recommending future structural or operational changes at the project. The monitoring plan shall include a schedule for: (1) implementation of the plan; (2) consultation with the appropriate federal, state, and tribal agencies concerning the results of the monitoring; and (3) filing the results, agency comments, and licensee's response to agency comments with the Commission. The licensee shall prepare the monitoring plan after consultation with

14 Project No the U.S. Fish and Wildlife Service, Maine Fisheries Agencies (IFW, DMR, MASC), the Maine Department of Environmental Protection, the Penobscot Indian Nation (PIN), and NOAA Fisheries. The licensee shall include with the plan documentation of agency consultation, copies of agency and PIN comments and recommendations on the plan after it has been prepared and provided to them, and specific descriptions of how the agencies and PIN s comments are accommodated by the licensee's plan. The licensee shall allow a minimum of 30 days for the agencies to comment and to make recommendations before filing the plan with the Commission. If the licensee does not adopt a recommendation, the filing shall include the licensee's reasons, based on project specific information. The Commission reserves the right to require changes to the proposed plan. Upon Commission approval, the licensee shall implement the plan, including any changes required by the Commission. If the results of the monitoring indicate that changes in project structures or operations, including alternative flow releases, are necessary to protect fish resources, the licensee shall first consult with the agencies listed above to develop recommended measures for amelioration and then file its proposal with the Commission, for approval. The Commission reserves its authority to require the licensee to modify project structures or operations to protect and enhance aquatic resources. (J) Article 409 is deleted in its entirely and replaced with the following: Article 409: Authority is reserved by the Commission to require the licensee to construct, operate, and maintain, or to provide for the construction, operation, and maintenance of, such fishways as may be prescribed by the Secretary of the Interior or the Secretary of Commerce under Section 18 of the Federal Power Act consistent with the Lower Penobscot River Multiparty Settlement Agreement. (K) The following new article is added to the license: Article 414. The licensee shall implement the requirements of Attachment B to the Lower Penobscot River Multiparty Settlement Agreement, dated June 2004 (Contingent Mitigation Fund), as it pertains to the Stillwater Hydroelectric Project.

15 Project No (L) This order constitutes final agency action. Requests for rehearing by the Commission may be filed within 30 days of the date of issuance of this order, pursuant to 18 CFR J. Mark Robinson Director Office of Energy Projects

16 Project No Water Quality Certification

17 Project No STATE OF MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION January 13, 2005 Magalie R. Salas, Secretary Federal Energy Regulatory Commission 888 First Street, N.E. Washington, DC COMMENTS RE: Application for Amendment of License Stillwater Hydro Project FERC No Dear Secretary Salas: This is in response to the Application for Amendment of License of PPL Maine LLC for the existing Stillwater Hydro Project, FERC No. 2712, located on the Stillwater Branch of the Penobscot River in the City of Old Town, Penobscot County, Maine. On December 22, 2004, the Maine Department of Environmental Protection (MDEP) issued a draft Maine Waterway Development and Conservation Act (MWDCA) Permit and Water Quality Certification, with conditions, for the proposed modification of the Stillwater Project. The draft order reflected an impoundment level increase of one foot and reduced minimum bypass flow requirements and incorporated all appropriate terms and conditions of the June 25, 2004 Lower Penobscot River Basin Comprehensive Settlement Accord. The MDEP has now issued a final MWDCA Permit and Water Quality Certification for the proposed modification of the Stillwater Project. The final permit and certification reflects the comments received by the MDEP on the draft Order. A copy of the Department Order approving the modification is attached. In summary, the proposed modification of the Stillwater Project has been certified as meeting applicable water quality standards, subject to the following conditions:

18 Project No The Standard Condition of Approval for projects under the Maine Waterway Development and Conservation Act. All existing permit conditions for the Stillwater Project as contained in Department Order #L A-N dated December 29, 1992, subject to any subsequent amendments, modifications and condition compliances, shall remain in effect except as specifically modified by this approval. Except as temporarily modified by specified conditions, the project shall be operated as run-of-river (outflow equals inflow) while passing minimum flows of 20 cfs into the west bypass channel and 50 cfs into the east bypass channel. Except as temporarily modified by specified conditions, water levels in the project impoundment shall be maintained within one foot of full pond elevation (94.65 feet msl) when flashboards are in place, and within one foot of spillway crest elevation when flashboards are not in place. The applicant shall provide upstream and downstream eel passage and downstream fish passage and shall establish a Contingent Mitigation Fund in accordance with the terms of the Lower Penobscot River Multiparty Settlement Agreement. The applicant shall conduct studies to determine the effectiveness of all required interim and permanent upstream and downstream fish passage facilities and/or operational measures. The MDEP reserves the right to require such reasonable changes in fish passage design and/or operation as are warranted by the results of the studies. We recommend that the forgoing conditions be included in the Articles of the Amendment of License issued for the Stillwater Hydro Project, in compliance with the provisions of Sections 401 (a) and (d) of the Clean Water Act. By Executive order of the Governor of the State of Maine, the terms and conditions in the attached Water Quality Certification represent the State s official recommendations regarding the subject Application for New License, superceding all preliminary recommendations by individual State agencies.

19 Project No Please direct any questions regarding these comments to Dana Murch of the MDEP staff at Sincerely, /s/ Andrew C. Fisk Andrew C. Fisk, Director Bureau of Land & Water Quality Attachment

20 Project No STATE OF MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION DEPARTMENT ORDER IN THE MATTER OF PPL MAINE LLC ) MAINE WATERWAY DEVELOPMENT AND Old Town, Maine ) CONSERVATION ACT and Penobscot County ) WATER QUALITY CERTIFICATION STILLWATER HYDRO PROJECT ) FLASHBOARD REPLACEMENT ) FINDINGS OF FACT AND ORDER #L F-M (APPROVAL) ) PERMIT MODIFICATION Pursuant to the provisions of 38 MRSA Sections 464 et seq. and Sections 630 et seq., CMR 450 (Administrative Rules for Hydropower Projects, effective date September 1, 1987), and Section 401 of the Federal Water Pollution Control Act (a.k.a. Clean Water Act), the Department of Environmental Protection has considered the application of PPL MAINE, LLC with its supportive data, agency review comments, and other related materials on file and FINDS THE FOLLOWING FACTS: 1. APPLICATION SUMMARY A. Application. The applicant proposes to replace the existing flashboard system, modify the minimum bypass flow requirements, and modify the fish passage requirements of the existing Stillwater Hydro Project, located on the Stillwater Branch of the Penobscot River in the City of Old Town, Penobscot County, Maine. The applicant also proposes to comply with the requirements of the Lower Penobscot River Basin Comprehensive Settlement Accord (Accord), dated June 25, 2004, as they apply to the Stillwater Project. B. Existing Project. The existing Stillwater Project consists of a dam, an old abandoned powerhouse, a working powerhouse, an impoundment, and appurtenant facilities. The dam and powerhouse were originally constructed in The Stillwater dam is a 1,712 foot long concrete gravity dam consisting of several different sections varying in length and configuration. The old powerhouse forms part of the dam s non-overflow section. Only parts of the walls and foundation of the old powerhouse remain. The dam ranges in height from a few inches to 22 feet. Two foot high wooden flashboards are attached to spillway portions of the dam by metal pins. The dam is located upstream of the Orono Project on the Stillwater Branch of the Penobscot River in the City of Old Town. The dam creates an impoundment with a surface area of about 184 acres at a normal full pond elevation of feet with the present flashboards. The impoundment extends upstream about 3 miles to a point just below the Gilman Falls Dam, which is part of the Milford Hydro Project.

21 Project No The project powerhouse contains four turbine-generator units with a total rated generating capacity of 1,950 KW at a gross head of 18.0 feet. The maximum hydraulic capacity of the generating units is 1,700 cubic feet per second (cfs). The operation of the Stillwater Project was approved by the DEP in Department Order #L A-N, dated December 29, Minimum flows to the bypassed reach were subsequently modified in Department Order #L E-M, dated June 18, The project is operated as a hydroelectric generating facility under the terms of FERC License No C. Summary of Proposed Modifications. The applicant proposes to install new flashboards which will be one foot taller, in place of the existing flashboards on the three sections of the project which are currently equipped with flashboards. In addition, five other sections that are not currently equipped with flashboards will have flashboards installed. The new flashboard system has been designed to allow failure when overtopped by one foot of water, at elevation feet NGVD, which is the same elevation at which the existing flashboards are designed to fail (when overtopped by two feet of water). Additionally, the flashboards will fail at a lower flow. The new flashboard system will be installed in the same manner as the existing flashboards. The replacement will not require any instream construction activity. The applicant also proposes to modify the minimum bypass flow requirements at the project by reducing from 40 cfs to 20 cfs the release to the west bypassed channel and by reducing from 155 cfs to 50 cfs the release to the east bypassed channel. These changes in minimum bypass flows will be accomplished by reducing the openings in the flashboard system on the main dam, and the section of dam above the east channel bypass, to allow passage of the modified flows on a continuous basis. These changes are subject to the provisions of the contingent mitigation fund as described in the Lower Penobscot River Basin Comprehensive Settlement Accord. The applicant also proposes to modify the fish passage requirements at the project to make them consistent with the Lower Penobscot River Basin Comprehensive Settlement Accord. D. Summary of Proposed Project Operation. The applicant proposes to continue to operate the project in a run-of-river mode, with outflows approximately equal to inflows. The normal impoundment elevation at the dam will be raised from feet to feet. This elevation will continue to be maintained when river flows are at or below the hydraulic capacity of the turbines. The impoundment surface area of approximately 184 acres will be increased by seven acres to approximately 191 acres. Due to prominent hydraulic controls at the upstream end of the impoundment the length of the project impoundment will not increase appreciably.

22 Project No JURISDICTION A. Hydropower Project Permit. The proposed flashboard replacement qualifies as the "construction, reconstruction or structural alteration of a hydropower project" under the Maine Waterway Development and Conservation Act (MWDCA), 38 MRSA Section 630 et seq. The proposed modifications of project operation qualifies as a change in the terms and conditions of the MWDCA permit currently in effect for the project that must be approved by the Department. B. Water Quality Certification. The proposed flashboard replacement and modification of project operation qualify as an "activity...which may result in (a) discharge into the navigable water (of the United States)" under the Clean Water Act (CWA), 33 USC 1251 et seq. Section 401 of the CWA requires that any applicant for a federal license or permit to conduct such an activity will comply with applicable State water quality standards. The applicant has filed an Application for Amendment of License for the Stillwater Hydroelectric Project with the Federal Energy Regulatory Commission to authorize the proposed new flashboard system and modifications of project operation. C. Terms and Conditions. Section 401 (d) of the CWA provides that a water quality certification shall set forth any limitations necessary to assure that an applicant for a federal license or permit will comply with any appropriate requirement of state law, and that such limitations shall become a condition on the federal license or permit issued for the activity. As discussed above, a permit is required under the MWDCA for the proposed new flashboard system and modifications of project operation. The MWCDA is a state water quality-related law. Consequently, the terms and conditions of any permit issued for this project constitute appropriate and necessary limitations to be set forth in any certification issued for the project. 3. APPLICABLE WATER QUALITY STANDARDS A. Classification. The waters of the Stillwater Branch and the Penobscot River affected by the Stillwater Project are currently classified as follows: Penobscot River, from the West Enfield Dam, including the Stillwater Branch, to the Veazie Dam, including all impoundments Class B. 38 MRSA 467(7)(A)(5). B. Designated Uses. Class B waters shall be of such quality that they are suitable for the designated uses of drinking water supply after treatment; fishing; recreation in and on the water; industrial process and cooling water supply; hydroelectric power generation; navigation; and as habitat for fish and other aquatic life. The habitat of Class B waters shall be characterized as unimpaired. 38 MRSA Section 465(3)(A).

23 Project No C. Numeric Standards. The numeric standards for the receiving waters are as follows. The dissolved oxygen content of Class B waters shall be not less than 7 parts per million or 75% of saturation, whichever is higher, except that for the period from October 1 st to May 14 th, in order to ensure spawning and egg incubation of indigenous fish species, the 7-day mean dissolved oxygen concentration shall not be less than 9.5 parts per million and the 1-day minimum dissolved oxygen concentration shall not be less than 8.0 parts per million in identified fish spawning areas. 38 MRSA Section 465(3)(B). D. Narrative Standards. The narrative standards for the receiving waters are as follows. Discharges to Class B waters shall not cause adverse impact to aquatic life in that the receiving waters shall be of sufficient quality to support all aquatic species indigenous to the receiving water without detrimental changes in the resident biological community. 38 MRSA Section 465(3)(C). The habitat characteristics and aquatic life criteria of Class B are deemed to be met in existing impoundments classified as B if the impounded waters satisfy Class C aquatic life criteria (the receiving waters shall be of sufficient quality to support all species of fish indigenous to the receiving waters and maintain the structure and function of the resident biological community), provided that any reasonable changes are implemented that do not significantly affect existing energy generation capability and would result in improvement in the habitat and aquatic life of the impounded waters, and further provided that, when the actual quality of the impounded waters attains any more stringent habitat characteristic or aquatic life criteria than required under Class C standards, that water quality must be maintained and protected. 38 MRSA Section 464(10). E. Antidegradation. The Department may only approve water quality certification if the standards of classification of the waterbody and the requirements of the State's antidegradation policy will be met. The Department may approve water quality certification for a project affecting a waterbody in which the standards of classification are not met if the project does not cause or contribute to the failure of the waterbody to meet the standards of classification. 38 M.R.S.A. 464(4)(F). 4. DISSOLVED OXYGEN The Department has developed a water quality model for the Penobscot River. This model has been calibrated and verified with data collected in 1997 and The Department has reviewed the proposed increase in impoundment level using this model to predict expected changes in dissolved oxygen. The model predicts that no lowering of dissolved oxygen levels should occur in the Stillwater impoundment as a result of the change in water level. Based on this review, the Department finds that the proposed impoundment level change will not have any adverse impact on dissolved oxygen conditions in the project waters.

24 Project No AQUATIC LIFE The proposed increase in impoundment full pond level and reductions in minimum flows to the bypassed reach are not expected to have any adverse impact on aquatic life in the project waters. An instream flow study was conducted in 1991 in association with the relicensing of the project (BHE 1991). The weighted usable area (WUA) for target species and lifestages was determined for both channels, at various flows. The proposed minimum flows would provide 71 and 80 percent of total maximum WUA in the west and east channels, respectively. 6. FISHERY RESOURCES A. Comprehensive Settlement Accord. The Lower Penobscot River Basin Comprehensive Settlement Accord (Accord), dated June 25, 2004, established a comprehensive settlement governing fisheries restoration for numerous anadromous and catadromous species to assist in the restoration of these species in the lower Penobscot River Basin. The Accord was designed to accomplish the following: The sale by PPL of the Veazie, Great Works, and Howland dams to the Penobscot River Restoration Trust (Trust), the decommissioning and removal of Veazie and Great Works, and the decommissioning and bypassing of Howland; The upgrading of fish passage at the remaining PPL dams in the lower Penobscot River Basin; The provision for increased power production at remaining PPL dams to replace power lost by removals/bypass; The provision for continued public outreach and other appropriate steps to address local concerns; The settlement of outstanding litigation regarding Basin Mills, Milford and other projects and resolution of the pending Great Works and Howland licensing proceedings; and, The provision of a Contingent Mitigation Fund (Mitigation Fund) in the event that the Veazie and Great Works dams are not purchased and removed by the Trust. The Accord includes the Lower Penobscot River Multiparty Settlement Agreement, dated June 2004 (MPA). The MPA is intended to: significantly enhance fishery restoration efforts in the Penobscot River Basin and resolve to the Parties' satisfaction all pending fish passage issues associated with the Veazie, Great Works, and Howland Projects ( Designated Projects ) and other hydroelectric projects in the Penobscot River Basin currently owned or operated by PPL Maine. The MPA is also intended to resolve to the Parties' satisfaction all issues raised in the requests for rehearing filed by PPL Maine's predecessor in interest, Department of the Interior, Penobscot Indian Nation, Atlantic Salmon Federation, Maine Audubon Society, Maine Council of the Atlantic Salmon Foundation and Trout Unlimited of the Federal Energy Regulatory Commission's April 30, 1998, orders for Basin Mills, Veazie, Milford, Orono, and Stillwater projects.