June 25, 2013

The lobbyist in the henhouse: Whose interests is Maine’s DEP commissioner serving?

For two years, public servant Patricia Aho has overseen Maine's environmental protection. But whom does she really serve? A seven-month investigation by the Telegram points to her former corporate clients. Part 1 of a 3-day series.

By Colin Woodard cwoodard@pressherald.com
Staff Writer

(Continued from page 4)

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Maine DEP Commissioner Patricia Aho

Carl D. Walsh/Staff Photographer

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Flagstaff Lake near Eustis, seen here last month with Bigelow Mountain in the background, experiences dramatic changes in water level in summer, thanks to utility drawdowns at a dam on the eastern side of the lake. Residents say the drawdowns adversely affect the quality of life in and around the lake. The Maine Department of Environmental Protection, led by Commissioner Patricia Aho, missed a filing deadline and deprived the state a say in how the dam is regulated. The DEP’s inaction cleared the way for the issuance of a new federal license that lacked stricter water-level rules and will remain in effect until 2036. Aho’s office called the blown deadline an oversight, but internal documents and department insiders tell a very different story.

Shawn Patrick Ouellette/Staff Photographer

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From lobbyist to DEP commissioner

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A Portland Press Herald/Maine Sunday Telegram investigation has found Patricia Aho, a former industrial and corporate lobbyist who became commissioner of the state’s Department of Environmental Protection in 2011, has scuttled programs and fought against laws that were opposed by many of her former clients in the chemical, drug, oil, and real estate development industries. Under Aho, the DEP has:

Frozen the Kid Safe Products Act – a 2008 law to protect fetuses, babies and children from potentially damaging chemicals – by blocking efforts to bring more chemicals under the law’s jurisdiction, chemicals produced by Aho’s former lobbying clients.

Reduced enforcement actions by 49 percent against large developers and landowners. Aho had unsuccessfully fought to weaken many of the laws at issue as the longtime lobbyist of the Maine Real Estate and Development Association.

• Fought to roll back recycling programs that are strongly opposed by former clients of Aho and a still-active lobbyist, Ann Robinson, the governor’s regulatory reform adviser.

Oversaw a purge of information from the DEP’s website and a clampdown on its personnel, restricting their ability to communicate relevant information to lawmakers, the public, policy staff and one another.


MONDAY: Led by a former chemical industry lobbyist, the Maine DEP has stalled efforts to regulate substances that are potentially harmful to children and to the development of unborn fetuses. 

TUESDAY: So-called “product stewardship” regulations – even recycling efforts with industry and bipartisan support – find staunch resistance at the Maine DEP, where a former corporate lobbyist has taken the helm.

For the past decade, Flagstaff-area residents had fought to get more stringent water level rules written into the dam's new license, which was up for renewal for the first time since the dam was built. The legal mechanism to do so was through the state DEP, which could impose such requirements under the federal Clean Water Act.

As early as 2004, federal records show, the town had asked the DEP and the Federal Energy Regulatory Commission to ensure that the dam's new license require that the lake be kept at certain minimum levels in summer and early fall. That same year, the Board of Environmental Protection -- an independent body that reviews environmental regulations -- ruled that FPL's winter drawdowns were too severe and, to protect aquatic life, should be limited to less than 9 feet below full pond capacity, rather than the 24 feet allowed under the proposed license.

There was a catch: DEP had to file paperwork by Nov. 15, 2011, or it would lose its seat at the table and, along with it, the means to modify the federal license, which FERC was otherwise ready to approve.

Aho missed the deadline.

Aho's spokeswoman, Depoy-Warren, later claimed the failure to file the paperwork had been an accident, "something that was lost sight of during the transition of leadership."

But according to both internal documents and Dana Murch, the staffer who oversaw DEP's dam relicensing efforts for more than 30 years until September 2011, Aho and other key officials had all been fully and repeatedly informed about the dam and its deadlines.

Murch said he personally briefed the commissioner and other senior managers face to face on the approaching Flagstaff deadline that summer. "She certainly knew what the regulatory options were and where the project file was," says Murch, who also highlighted the deadline in exit memos sent to staff.

Aho was also briefed on the issue by FPL. Department schedules and correspondence acquired by the Conservation Law Foundation through a public records request showed that Aho met in her office Aug. 4, 2011, with FPL's attorney -- her former Pierce Atwood colleague Matthew Manahan -- and two FPL officials seeking to "update Pattie on the status of Flagstaff."

DEP staff at various levels subsequently received reminders of the impending deadline, including one sent the day before to the staffer responsible for Flagstaff, Dawn Hallowell, by Assistant Attorney General Jan McClintock noting that if no action was "done by tomorrow, certification will be deemed waived by operation of law." Hallowell forwarded the email to her supervisor, land and water bureau director Michael Mullen, meaning that even at the last hour, key staff were aware of what was about to happen.

"I think it's disingenuous for the department to argue they did this in ignorance," says Jeff Reardon of Trout Unlimited, which had fought for tighter water level targets. "We could have gotten a better situation, and it's entirely possible Eustis and Stratton could have gotten a better summer target."

"This was a once-in-a-lifetime opportunity to get a balance between hydroelectric energy generation and environmental values," says Murch, the longtime DEP dam relicensing expert. "The legally proper way to have moved forward would have been to (do an) analysis to try to figure out what the appropriate new water standards would be to meet all needs and impacts. Find out how much environmental bang you get for each foot of water you don't draw down from the lake and what the negative impacts are."

"They chose the sit-on-your-hands-and-do-nothing option," he adds.

The result was something of a slam dunk for FPL and anyone else who owns the dam between now and 2036, when the new license expires, as it killed more stringent limits on drawdowns, both in summer and off-season.

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Additional Photos

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Current and former employees of the Maine Department of Environmental Protection say they’ve been pressured against vigorously implementing or enforcing laws that have long been opposed by companies represented by Commissioner Patricia Aho’s former employer, Pierce Atwood, the state’s largest law firm. The firm’s Portland office building on Commercial Street is pictured earlier this month.

Gabe Souza / Staff Photographer

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A sign warns about water-level changes at Flagstaff Lake in Eusis that could result from decisions by owners of the Flagstaff dam.

Colin Woodard / Staff Writer

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