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Groups accuse DEP of ‘bureaucratic malpractice’ involving western Maine dam

By Kevin Miller, BDN Staff
Posted Dec. 08, 2011, at 8:10 p.m.
Last modified Dec. 09, 2011, at 12:23 p.m.
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View Flagstaff Lake, Maine in a larger map

Several conservation groups allege that Maine environmental regulators inadvertently or intentionally dropped the ball in a federal hydropower case and in the process lost the chance to control lake levels and water quality in Flagstaff Lake for 25 years.

A spokeswoman for the Maine Department of Environmental Protection acknowledged Thursday that the department “lost sight” of the Flagstaff Lake issue because of recent staffing changes. But she said the department will still have influence as the Federal Energy Regulatory Commission reviews the project.

“Maine DEP intends to have a very present voice in the FERC process as that federal body balances the many uses for and appropriate water levels of that man-made lake moving forward,” wrote Samantha DePoy-Warren, a DEP spokeswoman.

Power generation company NextEra Energy controls water levels in Flagstaff Lake and in the Dead River — both popular recreational spots — as well as in the Kennebec River through a dam on the lake. The Maine DEP has had a major hand in those water levels through a provision in the federal Clean Water Act that allows states to review federal applications for possible impacts on water quality and either certify or reject that the application meets the state’s standards.

But five organizations active in water quality issues — Trout Unlimited, the Conservation Law Foundation, Maine Rivers, the Appalachian Mountain Club and the Natural Resources Council of Maine — said this week that the DEP lost that influence last month when the department missed a deadline in the water quality certification process.

As a result, NextEra’s request to draw down water from the lake will be handled entirely by FERC, which they suggest was “bureaucratic malpractice” on the state’s part. Representatives of the groups said that means FERC will be making decisions on water levels that will affect camp owners, whitewater rafting organizations as well as fish and other wildlife.

“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,” Jeff Reardon with Trout Unlimited said in a statement.

The groups contend that the DEP should have requested that NextEra withdraw and then refile its application or reject it outright, thereby maintaining state influence on the water level issue. The groups said applicants — including NextEra — routinely withdraw and refile applications in order to avoid a rejection.

Sean Mahoney with the Conservation Law Foundation said it is unclear to him and to others whether this was merely a lapse because of understaffing or whether it was a conscious decision by senior officials at the DEP not to put pressure on NextEra. But Mahoney said the state lost its only chance to attach binding requirements to a federal dam application.

“The bigger issue is that this has shown a real problem with what the governor has done to the DEP,” Mahoney said in a telephone interview on Thursday.

But the DEP’s DePoy-Warren said there was nothing intentional or insidious in the department’s handling of the case.

The DEP’s top dam specialist, Dana Murch, retired earlier this year along with many other senior staffers at the department who opted to take an incentive package offered by the LePage administration as part of cost-cutting measures. Murch’s responsibilities then were divided among several staff members, resulting in the lapse involving NextEra’s application.

When department officials and a representative from the Attorney General’s Office realized that the deadline was rapidly approaching, they requested that NextEra withdraw and refile the application. But the company did not do so, DePoy-Warren said.

She added that the department plans to be fully involved in the FERC review process, however.

“We are already proactively reaching out to FERC to offer our data and expertise on this issue so it may be a part of their considerations,” DePoy-Warren wrote in an email on Thursday. “This is certainly not a forgone conclusion and we think we can accomplish similar goals by being engaged in the FERC process that we would have from the water quality certification process.”

On Wednesday, DEP Commissioner Patricia Aho announced plans for a major reorganization that DePoy-Warren said should help avoid similar lapses in the future. Under the new structure, there will be more cross-training that will allow department staffers to more easily step into each others’ roles, she said.

Several environmental groups, however, have questioned whether the reorganization will result in the efficiencies, environmental protections and improved services promised by the LePage administration.

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  • Anonymous

    So the environmentalists want to keep the water level in the lake high?

    I’m surprised they aren’t calling for the dam to be removed, the Dead River water course to be restored, and the town of Flagstaff to be rebuilt.

    Beautiful as Flagstaff Lake is, it can be kind of creepy when the water’s low and the old roads and foundations start poking through.

  • Anonymous

    Part of the plan by the governor and commissioner.  First fire or demoralize long term employes so they take the retirement package.  Then reorganize the department along dysfunctional lines to make what remains ineffective.  That way the DEP can’t ruin the business climate.

  • Anonymous

    Convenient.

  • poormaniac

    The water level in Flagstaff has been raised and lowered routinely for years , how about some facts proving that the state’s involvement in this process is going to change anything.

  • Anonymous

    More whining and LePage bashing?

    What DO THEY WANT NOW?  Lake levels are maintained to balance power generation needs vs. other uses of the impound. Perhaps the reporter should unveil their intervenor agendas in the interests of full transparency. 

    These groups want to take out dams.  Not a smart idea given the damage raging rivers have caused to our roads, bridges, and watersheds because of torrential rains and the increased impervious surfacing of watersheds.

  • Anonymous

    Flagstaff lake has a power dam . If it was not for the power dam there would be no lake an no water in the river an no rafting either

  • Anonymous

    Check out the board of directors for NextEra. I believe this crew could have handled a little “pressure.” Shame on DEP for “losing sight” of Flagstaff Lake.

  • Anonymous

    An out of state corporation controlling Maine’s waters. You don’t see an issue with this?

  • Anonymous

    You know the history of Flagstaff is tragic, a complete injustice to the residents of the flooded towns who were scattered in 1949, but survivors return each first Sunday in August for a picnic and church service at the church in Eustis built from salvage. I talked to a CMP retiree a few years ago who said there could be an issue with the deeds purchased by CMP back then. There’s a chance the CMP title might disappear and revert back to the original owners if they ever take down Long Falls Dam. I think the original Dead River flowing past Eustis and Stratton, along the north face of the Bigelow Mt. Range would be pretty neat. A bummer if you own a camp abutting Flagstaff Lake, but there aren’t that many and it wouldn’t take that much to compensate camp owners for this lost equity. They still have their camps, just with a different view. 

  • http://pulse.yahoo.com/_F7VMUU5NIDG3Y2AUPJUMBJY7B4 JEFF

    I guess the only one’s forgetting anything is the special interest groups blasting Maine DEP. This dam and subsequent lake formed by it’s construction may have, and not by design created a place that supports a whole host of recreational activities and opportunities .The  lake that formed is for the express purpose  to be released through the dam to manufacture electricity, plain and simple and not for any other persons  or groups that arose by happenstance of this lake.

  • Anonymous

    Not true. There are no generators at Long Falls Dam. It was build for flood control, and to provide regulated flow to dams with generators down stream. 

  • Anonymous

    The environmental groups here are bad for maine – each one of them has thier hand out in the process for something, they drive up the costs of licensing and do nothing for anything but line thier pockets. If people could sort through all the details and complexities of these processess they would see this abuse. As for the DEP they will still have sufficient control and input, thier is no crisis.

    What is being said here is that more than likely Flaggstaff will draw its waters closer to design rathr than being limited by some present day feel good constraint.

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