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
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.
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.
After the retirement of longtime hydropower coordinator Dana Murch in the summer of 2011, dam relicensing was initially decentralized, with various dams turned over to officials in DEP regional offices and to others staying at headquarters. Mark Bergeron, the DEP’s land resource division director, said that was done because of a reduction in land division permit applications and the associated fees, which helped pay for the support staff.
Jim Beyer, who oversaw the St. Croix dams until early January 2012, said workloads in the regional offices became problematic. “I had three wind projects pending,” he said.
At headquarters, the land and water bureau also fell behind. Michael Mullen, the bureau’s director at the time, said they found themselves “up against a deadline” for the Flagstaff Dam in November 2011. He said the department made a “last minute” request of Florida Power & Light to take what is usually a routine action to reset the deadline by a year, and that, to the department’s surprise, the company refused.
“I have not been aware of anyone refusing to withdraw and refile when asked to,” Mullen said.
That’s because the alternative for dam owners is to have their entire application denied. But in this case, the DEP did nothing because, according to Mullen, “we would have had to write a denial order and we weren’t prepared to do that.”
“Out of the Flagstaff case we learned that we can’t wait until the hour of the (deadline) unless we have the denial order ready to go,” Bergeron said.
Still, department documents show that staff members in the various DEP offices subsequently remained on top of the annual deadlines for the other dams. That is, until late 2012, when the department reversed itself, hired a new hydropower coordinator, Kathy Howatt, and started recentralizing licensing oversight in Augusta.
The Brassua dam deadline was nearly missed in February, apparently because of confusion over what the deadline was. On March 20, the department missed the deadlines for both St. Croix-area dams, with officials unaware of their mistake for weeks.
“We did miss those St. Croix deadlines, and that was just a communications breakdown between Kathy, myself and Jim Beyer, who had been managing them before” from the regional office in Bangor, Bergeron said. “We’ve implemented some internal processes already for the upcoming projects so that we know exactly when they are and other folks are notified, even if the hydropower coordinator is sick or away. We’re on top of it as we speak.”
According to DEP records, the next water certification deadline is Feb. 13, for the Brassua dam.