November 1, 2013

Maine legislators try to end missed dam deadlines

A bill would tighten oversight of the DEP when it comes to dam relicensing to keep the state from losing its say on water levels.

By Colin Woodard
Staff Writer

AUGUSTA — Lawmakers want to impose firmer oversight of the Department of Environmental Protection’s handling of dam relicensing after the state missed deadlines for three projects.

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2013 Press Herald File Photo/Shawn Patrick Ouellette The state Department of Environmental Protection missed the November 2011 deadline for using its authority to set terms for water levels at the dam at Flagstaff Lake in western Maine, shown with Bigelow Mountain in the background. Water levels affect waterfront property owners, fish spawning and passage, and recreation for a generation.

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House Democrats are advancing a bill that “would require DEP to have a plan to address dam relicensing deadlines and share it with legislative committees of jurisdiction,” said a statement they released Thursday. The measure was unanimously endorsed by the Legislative Council, so it can be introduced in the legislative session that starts in January.

Under Commissioner Patricia Aho, the DEP has missed deadlines for three dam projects, irrevocably waiving the state’s authority to set terms for water levels in reservoirs and rivers that affect waterfront property owners, fish spawning and passage, and recreation for a generation. The department came within hours of missing a fourth deadline this year. Maine had never before missed one of the critical “water certification” deadlines, on which hinge the state’s powers to dictate terms in what is otherwise a federal relicensing process.

“Maine has missed too many critical deadlines,” the bill’s sponsor, Assistant House Majority Leader Jeff McCabe, said in a written statement. “These are serious mistakes that forfeited Maine’s authority to set water levels that impact fish, boating and more.”

In an interview, McCabe said the bill would require the DEP to report to the Legislature as dam deadlines approach and also would tighten requirements for public input. He said he will seek out Sen. Tom Saviello of Wilton, the ranking Republican on the committee that has oversight for dams, as a possible co-sponsor. Saviello proposed similar legislation to the Legislative Council. He could not be reached for comment Thursday.

The DEP missed deadlines in November 2011 for the dam at Flagstaff Lake in western Maine, and last March for the Forest City and West Branch Project dams on the St. Croix River in eastern Maine. Public records revealed that in February the department also came within hours of missing the deadline for the Brassua Dam, near Moosehead Lake.

The missed deadline at Flagstaff was particularly contentious. It effectively squashed a nearly decade-long effort by residents of the lakeside town of Eustis to stop the dam’s owner, Florida Power & Light, from lowering lake levels to the point where boating, swimming and other recreation became impossible, sometimes replaced by late-summer dust storms. (The Flagstaff and Brassua dams have since been sold to Canada-based Brookfield Power.)

At the time, a DEP spokeswoman claimed that the missed deadline was an accident, “something that was lost sight of during the transition of leadership” in the department. But internal documents and the recollections of key staffers subsequently revealed that Commissioner Aho and other key officials had been fully and repeatedly informed about the dam and its deadlines, had met with the dam owner’s attorney, and had even received a last-minute warning of the pending deadline from an assistant attorney general.

Aho’s former colleagues at Pierce Atwood – the Portland law firm where she was a lobbyist until she joined the DEP in 2011 – represented Florida Power & Light in the relicensing process, as well as the owner of the two St. Croix dams, Woodland Pulp LLC.

A more recent public records request by the Press Herald, for dam relicensing documents and correspondence over the past year, revealed a department in disarray, with the hydropower coordinator unfamiliar with the deadlines and dams, and often not in possession of the proper files.

In a recent interview with the Press Herald, five key DEP managers and staffers who have been involved with the dam relicensing effort ascribed the failures to work overload, staff reductions, inexperience and miscommunication among officials.

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