August 28, 2013

More dam relicensing slips past Maine's DEP

The agency misses deadlines and loses its say on five water-control projects, but says the impact will be 'zero.'

By Colin Woodard cwoodard@pressherald.com
Staff Writer

The Maine Department of Environmental Protection has again missed critical deadlines and cost the state its authority to set terms in the federal relicensing of dam projects, raising concerns for environmentalists and at least one key lawmaker.

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In this May 2011 file photo, David Swayze of New York City fishes in Grand Lake Stream, Maine. Maine now has no say over the terms of the 25-year licenses for two storage dams and two dikes that control water levels and flow in Grand Lake and Sysladobsis Lake in Washington County, one of Maine's premier areas for landlocked-salmon fishing, and a dam at Forest City Township, on the Maine-New Brunswick border, because the Maine Department of Environmental Protection has again missed critical deadlines.

Shawn Patrick Ouellette / Staff Photographer

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Forest City Dam DEP letter
Western Branch Dams DEP letter

Maine now has no say over the terms of the 25-year licenses for two storage dams and two dikes that control water levels and flow in Grand Lake and Sysladobsis Lake in Washington County, one of Maine's premier areas for landlocked-salmon fishing, and a dam at Forest City Township, on the Maine-New Brunswick border.

The dams are owned by Woodland Pulp LLC, which uses them to store and release water that generates power at the paper company's Grand Falls and Woodland dams downstream.

Dam relicensing is a federal issue, but states can dictate terms on water quality issues -- including seasonal water levels affecting recreation, fish spawning and fish passage -- under a provision of the federal Clean Water Act.

By missing two March 2 filing deadlines, the DEP irrevocably waived its authority over the dam relicensing in Washington County.

On Monday, the Federal Energy Regulatory Commission posted letters from the DEP, which said that it had missed the deadlines, and that it was "completely unintentional on the department's part."

The letters, dated Aug. 19 and signed by DEP land resource division director Mark Bergeron, blamed personnel changes in August and October 2011 for "miscommunication between me and department staff regarding the deadline."

After missing the deadline, the department asked "Woodland Pulp LLC and their consultants" to take action to reset the clock by a year, Bergeron wrote, but "to date, they have not been willing to do that."

In an interview, Bergeron said the development, while regrettable, will have no adverse effects because the state has not had concerns with how the dams are operated or with water quality and the health of fish in the affected lakes. He said he was unaware of any concerns among fishermen or other groups with an interest in the lakes.

"The net effect (of the missed deadline) on the ground would be zero," Bergeron said.

But Sen. Jim Boyle, D-Gorham, a co-chairman of the legislative committee that oversees the DEP, said he is concerned about the missed deadlines.

"In my experience, the staff at these departments know when the deadlines are, and they have long lead times. It troubles me that we are missing deadlines on three different situations," he said. "One of the concerns we raised with the commissioner earlier this year is: Do you have enough staffing?"

'WHO IS MINDING THE STORE' AT DEP?

In November 2011, the DEP lost its authority over the terms of the relicensing for the dam controlling Flagstaff Lake in western Maine, where low water levels in the summer have led to dust storms and wreaked havoc on the tourism economy of Eustis and other lakeside communities.

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 DEP Commissioner Patricia Aho and other key officials had been fully and repeatedly informed about the dam and its deadlines.

DEP emails showed that Aho, who previously was a lobbyist with the Pierce Atwood law firm in Portland, had even met with the attorney for the Flagstaff dam's owner, her former Pierce Atwood colleague Matt Manahan, who briefed her on the issue.

DEP staff members at various levels subsequently got reminders of the impending deadline, including one the day before the Nov. 15 deadline from Assistant Attorney General Jan McClintock alerting them to the situation and its ramifications. No action was taken.

Manahan has represented Woodlands Pulp LLC -- formerly called Domtar -- in the Forest City and Grand Lake-area relicensing proceedings at least as recently as November 2011. He did not respond to an interview request.

A series of stories in the Portland Press Herald and Maine Sunday Telegram, published June 16, 17 and 18, revealed that Aho had stifled laws and programs she had been paid to defeat as a lobbyist. Aho was nominated to her post by Gov. Paul LePage in mid-2011.

"It's ironic that for an administration that wants to have as much control as possible, here we go again giving up another opportunity to have our say in how our resources are used," said Sean Mahoney of the Conservation Law Foundation, which first exposed the missed deadline at Flagstaff Lake. "It's inexcusable."

Jeff Reardon of Trout Unlimited, a national fish conservation group, said he hasn't followed the relicensing of the dams in the Grand Lake area, but the missing of critical deadlines raises serious concerns about how the DEP is being managed.

"I don't know if there are any significant controversial issues here, but if there are, the DEP has lost their ability to control them," Reardon said.

"If in fact it's an accident, it's a very bad sign and raises the question of who is minding the store," he said. "Because from the water management point of view, I would say this is among one of the most important authorities DEP has."

Reardon said that, to his knowledge, Maine never missed a dam project water certification deadline before Aho became DEP commissioner. Forest City and the Grand Lake dams are separate projects, so the department has now missed three.

DEP INSISTS ERRORS UNINTENTIONAL

Two dams and two dikes are in Woodland Pulp's West Branch Storage Project: the West Grand Lake Dam, Bonney Brook Dike, Farm Cove Dike and the Sysladobsis Lake Dam, all in unorganized territories near the village of Grand Lake Stream on the west branch of the St. Croix River.

The Forest City dam spans the U.S.-Canada border on the main branch of the St. Croix, more than an hour's drive north of Grand Lake Stream.

In an interview, Bergeron and DEP hydropower coordinator Kathy Howatt said that, before missing the March 2 deadline to submit paperwork to renew the state's authority, they got no last-minute warning from the state Attorney General's Office.

Bergeron said his division was understaffed and that he and Howatt were overwhelmed by another project: assembling documents related to a disputed Sebago Lake weir for the Maine Supreme Judicial Court.

"We were all in the middle of doing that and unfortunately we missed the deadline," he said. "This was completely inadvertent."

In a written statement, the DEP said the commissioner's office did not learn of the mistake until mid-June.

"This inadvertent and accidental mistake is unfortunate but it does not reflect the high value that the department places on the protection of our environment and natural resources," the statement said. "This unintentional mistake should not have happened and we have taken further internal steps to review our processes so situations like this will not happen in the future."

Howatt said the department has not missed any other dam licensing deadlines.

The next one is in February, when the DEP must file paperwork to extend its certification authority over the relicensing of the Brassua Dam, west of Moosehead Lake.

Dams in the Vanceboro, Buxton and Ellsworth areas are in earlier relicensing stages.

"I don't believe there were any contested elements," Howatt said of the projects that had March deadlines. "Everything that Woodland Pulp proposed to do was a continuation of what they were already doing, which we knew were meeting water quality standards."

FEW COMPLAINTS ON WATER LEVELS

Although the terms of the new licenses will remain in force for a generation, the proceedings have had a low public profile in the area. When FERC held a public hearing on the relicensing in nearby Baileyville in 2009, not a single member of the public attended, the one-page transcript of the hearing shows.

Jeff McEvoy, a master guide and owner of Weatherby's Sporting Camps in Grand Lake Steam, said Woodland Pulp has generally done a good job managing water levels in the area, although he would like to see higher minimum water levels in winter to protect nests of landlocked salmon.

"Generally speaking, there aren't any contentious issues. I think the waters have been managed pretty well, in recent years especially," McEvoy said. "But it's unfortunate that more isn't written into the license, because you just never know what the next owner is going to have up his sleeve."

Colin Woodard can be contacted at 791-6317 or at:

cwoodard@pressherald.com

Twitter: @woodardcolin

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