Maine Loses Ability to Have Any Say in Water Management for Next 25 Years
PORTLAND, ME – Conservation groups are charging that the deep cuts in, and ongoing reorganization of, personnel at the Maine Department of Environmental Protection have resulted in a clear case of bureaucratic malpractice. These groups and the State battled the owner of the Flagstaff Lake Hydropower Storage Project for 5 years to preserve Maine’s ability to have any say on the lake levels, water flows, recreational opportunities and other water quality issues, only to have the DEP recently and intentionally waive that right.
“This leaves the people of Maine at the mercy of the Federal Energy Regulatory Commission with respect to how much Flagstaff Lake levels can be lowered in winter and summer, what amount of water will be released to maintain flows in the Dead River and impacts to habitat and species located along the shores and the shallow waters of Flagstaff Lake,” said Jeff Reardon of Trout Unlimited, who along with Maine Rivers, Natural Resources Council of Maine and Appalachian Mountain Club, challenged the initial decision to grant a Water Quality Certification to the project in 2004.
“This is, at best, a striking example of a Department so thinly stretched that it is unable to exercise its legal authority and, at worst, a Department that has no desire to exercise that authority,” said Nick Bennett of NRCM.
In 2004, the Board of Environmental Protection ruled that the drawdown in lake levels requested by the project owner, NextEra Energy, for its FERC license violated Maine’s water quality standards. NextEra sought to reverse that decision in the Maine Law Court, the First Circuit Court of Appeals and the U. S. Supreme Court but lost at every juncture.
Under the Clean Water Act, a State is authorized to review any federal application that might impact that State’s water quality standards – it can certify that the application meets those standards, condition its certification so that with changes the application can meet those standards, or deny certification, which effectively denies the application. A state must act on water quality certifications within one year – if it fails to do so, then the right to certify is waived. In the event that states cannot meet this deadline, they can require applicants to withdraw and refile the application, restarting the clock. They can also deny certification if the applicant refuses to withdraw and refile. Applicants have routinely withdrawn and refiled their applications to evade denial. This includes NextEra, which withdrew and refiled its application in 2010 at DEP’s request.
“What’s so tragic here is that the State, after spending significant resources of the DEP and Office of the Attorney General to defend the decision, had the opportunity to require NextEra to withdraw and refile, but through inattention and then a direct decision by DEP Commissioner Aho, did not to do so. This not only hurts Maine people who use Flagstaff Lake or depend on it for their livelihood but also raises real concerns about the DEP’s ability and willingness to exercise Maine’s rights to control, manage and protect our natural resources,” said Sean Mahoney of the Conservation Law Foundation.
“The potential negative impact of this decision on the public values of Flagstaff Lake, on the whitewater rafting industry, on outstanding habitat for brook trout and landlocked salmon is extremely troubling,” said Landis Hudson of Maine Rivers. “And degradation of the biologically productive fish, loon and waterfowl shoreline habitat by unregulated dewatering, leaving public boat ramps high and dry and changing the face and nature of the public lands of the abutting Bigelow Preserve – makes the DEP’s action, or rather inaction, inexcusable,” said Ken Kimball of the Appalachian Mountain Club.
“The damage to Flagstaff Lake is done and this result underscores the need for Maine’s environmental advocates to closely watch the work of the DEP in the coming months and years,” said attorney Bill Townsend, one of the deans of Maine environmental law.
