March 25, 2018
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Groups accuse DEP of ‘bureaucratic malpractice’ involving western Maine dam

By Kevin Miller, BDN Staff

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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