The Maine Department of Environmental Protection would be required to notify lawmakers when hydropower licenses are up for renewal.
By Kevin Miller, Washington Bureau Chief
Portland Press Herald news story
AUGUSTA — Lawmakers moved Monday to increase their oversight of the Maine Department of Environmental Protection after the agency failed to exercise the state’s right to control lake levels and other water quality issues on three federally licensed dams.
Additionally, the department would be required to provide additional information to the Legislature’s Environment and Natural Resources Committee about any pending dam relicensures or modifications in which FERC allows the state to certify that the project meets water quality standards.
The bill, L.D. 1826, is a response to the fact that the DEP lost the ability to dictate seasonal water levels on three impoundments – including Flagstaff Lake near Eustis – when it failed to intervene in the FERC relicensing process. The department supported the bill and worked with the committee and the sponsor, Rep. Jeff McCabe, D-Skowhegan.
Although department staff said the deadlines were missed unintentionally, conservation organizations and news reports raised questions about whether DEP officials willfully gave up state oversight on Flagstaff Lake in late 2011. As a result, Maine abrogated its right for the next 25 years to set water levels on the lake, which is a major recreation destination for the region as well as the source for water in the Dead River that is popular with whitewater rafters.
McCabe, who is the assistant House majority leader, said his legislation is not about assigning blame for past incidents but about “moving forward” to avoid the state losing input on future dam relicensing projects.
“Any time we miss a deadline is troubling,” McCabe said.
McCabe had initially proposed a 60-day notification to the Legislature before any state deadlines for FERC relicensing of dams but extended it to six months at the request of the DEP. The committee then rewrote the bill to require an annual report looking at dams up for relicensing over the next five years.
DEP officials also said they have enhanced training, added redundancy and made other administrative changes after missing two additional deadlines: on a dam that controls water flow into the renowned fishing destination Grand Lake in Washington County as well as in Forest City Township on the Maine-New Brunswick border.
“We are confident that the additional measures we have put in place over the past several months will really focus in and help ensure the situation does not happen again,” said Heather Parent, the DEP policy director.
Dam relicensing is largely a federal issue controlled by FERC. There are 102 FERC-licensed hydropower dams in Maine with the capacity to generate up to 743 megawatts of power. Another 27 smaller hydropower dams are exempt from full FERC licensing but still subject to the state’s water quality certification authority.
Under a provision of the Clean Water Act, however, states have significant control over water quality and water levels in both impoundments and the rivers below the FERC-licensed dams. But the state must assert that authority by intervening in the FERC process. And the Maine DEP has given up that authority in three separate instances since 2011.
The most controversial involved Flagstaff.
DEP officials said the missed deadline was an omission caused by staff turnover after the state’s hydropower coordinator left and his responsibilities were disseminated to other staffers. But internal documents and staff recollections showed that DEP Commissioner Patricia Aho – a former lobbyist – had been repeatedly informed of the relicensing proceedings. A Portland Press Herald investigation also found that, as commissioner, Aho frequently worked against policies and programs that she had been paid to lobby against prior to joining the LePage administration.
Jeff Reardon, Maine brook trout project director for Trout Unlimited, said Flagstaff Lake was consistently a complex and controversial project because of the competing interests. Water level drawdowns by the dam operator often left docks of waterfront camps “high and dry” and left large, unsightly mudflats, Reardon said.
Reardon said he disagreed with some past DEP decisions on water quality during his years of work on the issue but that the department had never failed to act until 2011.
Asked whether the culture had changed at DEP, Reardon replied: “I don’t know whether the culture has changed … but the department has done things in the last three years that I have never seen before.”
Reardon supported McCabe’s bill but also proposed the five-year look-ahead eventually endorsed by the committee on a provisional vote, pending a review of the final language. The Conservation Law Foundation, Maine Audubon, Maine Rivers and the Natural Resources Council of Maine all supported the bill; no one spoke in opposition on Monday.
McCabe was pleased with the compromise and expressed gratitude for the LePage administration’s work on the issue.
“Maine has given up too much by missing these important deadlines,” McCabe said in a statement. “These mistakes cost us the ability to set water levels. It impacts wildlife, traditional sports, property owners and our recreation and tourism economies.”
