Wednesday, December 4, 2013
Maine DEP Commissioner Patricia Aho chairs a hearing in Aurora on June 6. In 2011, Aho decentralized responsibility for dam relicensing. She re-centralized it after a deadline was missed.
Carl D. Walsh/Staff Photographer
AUGUSTA — The Maine Department of Environmental Protection’s dam re- licensing efforts have been in confusion and disarray over the past year, according to emails and other documents obtained through a public records request.
The state’s hydropower coordinator was often unaware of precisely which dams she was responsible for, when critical deadlines were, and even the identity of a key federal counterpart in the process. Nearly a year into her job, she wasn’t in possession of the files for some dam projects, including ones whose deadlines she had already missed.
Department emails obtained by the Maine Sunday Telegram also show that the LePage administration came within hours of missing a critical deadline that would have caused the state to lose authority over the federal relicensing of a dam near Moose- head Lake.
The DEP has missed deadlines for three other dam projects under Gov. Paul LePage, irrevocably waiving the state’s authority to set terms on water levels in reservoirs and rivers that affect recreation, fish spawning and passage, and waterfront property owners for a generation.
On Feb. 12, the DEP’s hydropower coordinator, Kathy Howatt, discovered by chance that she was hours away from missing the deadline for the Brassua dam, which lies to the west of Moosehead Lake in Somerset County and was about to be sold to Ontario-based Brookfield Power. She notified DEP Commissioner Patricia Aho, who, after several hours of contemplation, authorized her to take action to ensure the deadline was met, department emails show.
Local residents have sought tighter controls on water levels in Brassua Lake, where rapid changes have disrupted boating and sportfishing guides. Had the deadline been missed, the state would have lost the ability to require the dam owner to make changes until the next time the dam was up for relicensing, a quarter century or more down the road.
A month later, Howatt missed the March 20 deadlines for two more dam projects in eastern Washington County: the Forest City dam (which created Spednic Lake), and two storage dams and two dikes that control water levels and flow on Grand Lake and Sysladobsis Lake and are together called the West Branch Project. She did not discover her mistake for more than a month, emails and staff notes reveal, possibly because she was not in possession of the Forest City dam files and wouldn’t be for many months to come.
Department spokeswoman Jessamine Logan said by email last week that nobody at the department would be available to answer questions of any kind about the dam issues until Oct. 15 because they were busy reviewing “all of the ramifications that the federal government shutdown” had on funding and operations.
Sean Mahoney, executive vice president of the Conservation Law Foundation, said the newly disclosed emails “show the institutional memory of the department has been eviscerated.” The foundation is the environmental group that first made public that the DEP had missed its Nov. 15, 2011, deadline at Flagstaff Lake, which is drained down by the dam owner in late summer, ending the tourism, boating and swimming season and provoking dust storms in the lakeside town of Eustis.
“You’re putting new people into these roles who don’t have the institutional memory or aren’t being properly trained on what the responsibilities are and that’s a problem,” Mahoney said. “This is a failure to manage and supervise some of our most important resources: our rivers and our lakes and our hydro power.”
Dana Murch, who oversaw dam relicensing at the DEP for 30 years until his retirement in September 2011, said he was troubled by what the emails revealed.
When he left, Aho decided to parcel Murch’s job out to several people working in regional offices, Murch said, and he spent three months training them and ensuring they had memos clearly indicating the situation with each dam project and what the key deadlines were. But at the beginning of October 2012, the department reversed course, re-centralizing relicensing in Augusta and putting Howatt – who had no previous experience with dam relicensing – in charge.
“For whatever reasons, the department decided they wanted a single person in charge, and you can make an argument to do that; but to do it without training that person is unconscionable,” he said. “In terms of complexity, the regulation of hydro projects is second only to nuclear power plants. There’s layer upon layer of statutes and agencies and regulations.”
State Sen. James Boyle, D-Gorham, who co-chairs the legislative committee overseeing the DEP, said Aho told him the recentralization had been in response to the missed deadline at Flagstaff the previous year.
Dam relicensing is a federal issue, but states can dictate terms on key issues – including seasonal water levels affecting recreation, fish spawning and fish passage – under a provision of the federal Clean Water Act, via the “water quality certification” process. Typically, a state will have to go through the annual formality of requesting the dam owner to withdraw and resubmit his application once a year until all issues are resolved. If it does not do so by the deadline, the state automatically waives all authority under federal law.
Murch said this makes the water quality deadlines perhaps the single most vital ones to the state. “If you miss it, you are losing the state’s one, once-in-a-generation opportunity to weigh in on these projects,” he said.
But emails show that months after taking her position, Howatt was not aware of the deadlines for the three dam projects that were in the midst of this water certification process, even though they were clearly indicated in Murch’s memos for each project and in the relevant department database, the Application Tracking System or ATS.
On Oct. 10, 2012, shortly after taking her new position, Howatt was having trouble locating the files for the Brassua project. The staffer listed in the ATS as being the project manager – Dawn Hallowell – responded that day to say, “I never had the file and don’t really know what the situation is.”
“I wish I could tell you more about it,” Hallowell added, “. . . or actually give you a file for review.”
On Dec. 3, 2012, a legal intern at the Conservation Law Foundation wrote Howatt asking what the deadlines were for the West Branch Project and another St. Croix dam in Vanceboro. Howatt didn’t know, so she reached out to Jim Beyer, an official in the DEP’s Bangor office who had been handling the St. Croix area dams. Beyer informed the foundation of the impending deadline: March 20. In a separate email to Howatt, Beyer said: “I have it on my calendar to send . . . (dam owner) Woodland Pulp a letter in March requesting a withdraw and resubmission.”
That never happened. In early January, Howatt took formal oversight of the St. Croix-area dams, although she indicated she wasn’t sure of their specific names. She still didn’t have the files for these dams, requesting Jan. 4 that they be sent down from Bangor. Later emails indicate that the Forest City files didn’t reach her hands until July 9, four months after the key deadline had passed for that dam. She apparently didn’t know who her counterpart was at the Federal Energy Regulatory Commission for the projects until early August, when she asked a colleague for the name.
The emails also indicate Howatt did not learn she had missed the March 20 deadline for Forest City and West Branch until mid-April. Instead of informing the commissioner’s office, she and Beyer tried to fix the damage by contacting the dam’s owners – Woodland Pulp – and asking them to voluntarily withdraw and resubmit their paperwork. At first, the company appeared willing to do so, but at a meeting in early June they said they would not. Officials from Woodland Pulp did not respond to an interview request.
According to memos they sent each other, Commissioner Aho and policy director Heather Parent did not learn of the missed deadlines until June 20. In handwritten comments, Parent asks why the deadline was missed. “Isn’t there a process in place?” she wrote in the margins of a memo from Howatt on the topic. “As coordinator, it’s your responsibility to know deadlines!!”
The Portland Press Herald first reported the missed deadlines at Forest City and West Branch on Aug. 27, after the DEP reported the missed deadline to the federal government. At the time, Howatt and her supervisor, Mark Bergeron, told the paper the missed deadline had been March 2, rather than March 20. They also said the deadline had been missed because Howatt was overwhelmed with compiling court records for proceedings involving the Eel Weir dam in Sebago Lake, but Murch says he had already compiled and organized those records before leaving the department.
“All they would have to do is make a duplicate copy of the record,” he said. “That’s literally a clerical person’s job, standing by the copier.”
According to DEP records, the next water certification deadline is for the Brassua dam on Feb. 13, 2014.
Colin Woodard can be contacted at 791-6317 or at: