Conservation group accuses DEP of intentionally relinquishing oversight of Flagstaff Lake

Posted Jan. 04, 2012, at 5:16 a.m.

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AUGUSTA, Maine — An environmental group is accusing the state Department of Environmental Protection of deliberately relinquishing oversight of Flagstaff Lake in Eustis.

Last month the DEP acknowledged that it had inadvertently ceded oversight of water quality and water levels at the 20,000-acre lake to the Federal Energy Regulatory Commission following a reapplication by the Flagstaff Lake HydroPower Storage Project. The department attributed the lapse to an ongoing restructuring that included the August retirement of Dana Murch, the DEP manager of dams and hydropower.

However, Sean Mahoney, an attorney with the Conservation Law Foundation, said Tuesday that the DEP’s explanation was “at best completely uninformed and at worst deliberately false.”

Shortly after the news broke that the state had effectively surrendered oversight of Flagstaff to FERC for the next 25 years, Mahoney’s organization filed a freedom of information request for memos and emails related to the Flagstaff issue.

The documents, provided to the Sun Journal, show that top DEP officials, including Commissioner Pattie Aho, were closely tracking the Flagstaff reapplication. The documents show Aho, a former lobbyist with Pierce Atwood, in August discussed the relicensing with former colleague Matt Manahan, a Pierce Atwood attorney representing the dam owner, Florida Power and Light.

Mahoney said the release of the documents did not produce a “smoking gun” proving that Aho and Manahan formulated a way to let state oversight expire. However, he said the DEP’s explanation last month that the waiver somehow slipped through the cracks doesn’t pass the straight-face test given the attention top-line officials had given the issue.

“The documents show that it wasn’t just a DEP staff person that blew a deadline,” Mahoney said. “It shows that top officials in the department blew a deadline, which is either gross incompetence or simply deliberate.”

Mahoney believes it’s the latter, arguing that explaining the loss of oversight as a lapse allowed the administration to avoid a policy debate that would have drawn out conservation groups.

Environmental groups had worked for 15 years to require the dam owner at Flagstaff to meet stricter water quality standards and water levels.

Jeff Reardon, with Trout Unlimited, told the Sun Journal last month that losing the waiver meant that the federal government, not the state, would determine for the next 25 years how much Flagstaff Lake levels can be lowered in winter and summer months and how much can be released to maintain flows in the Dead River.

Reardon said the water levels were critical to habitat and species located along the shores and the shallow waters of Flagstaff Lake.

Mahoney initially called the DEP’s decision to allow the waiver to lapse “bureaucratic malpractice.” His letter to Aho, sent Tuesday, was more strident.

He wrote that it was troubling that Aho made a decision not to act on the reapplication after meeting with Manahan, the FPL attorney and a former colleague of Aho’s.

Samantha DePoy-Warren, a spokeswoman for the DEP, declined to comment on Mahoney’s three-page letter. She said the department would offer a “more informed” response once it had time to review the missive.

Last month the DEP said it would work closely with FERC to ensure that the agency weighed the state’s concerns about water quality and water levels at Flagstaff, a man-made lake.

Mahoney said the department should do more than that. He said that if the lapse was simply a blown deadline, the DEP should stipulate in its dam license for the Flagstaff Storage Project that dam owner meet state water quality standards.

Mahoney also challenged the DEP to clarify its reason to waive oversight of the Flagstaff Storage Project and issue an apology to stakeholders.

Mahoney said he understood there may be a policy debate about allowing state oversight of the dam. What he rejected, he said, was the way the DEP appeared to avoid that discussion.

The state and conservation groups have battled the owner of Flagstaff Lake Hydropower Storage project for five years to ensure that the state had final say on lake levels, water flows and recreational opportunities.

Earlier this year the Attorney General’s Office alerted the DEP that the deadline for water quality certification and the relicensing of the dam was drawing near. The DEP then asked the dam owner to refile paperwork to buy the state more time. The dam owner declined and in November the state lost oversight.

Murch, the former DEP supervisor of dams and hydropower, alerted staff about the deadline via a series of exit memos.

Murch was replaced by Dawn Hallowell. However, Mahoney believes the DEP officials left her unaware of the Flagstaff application.

The DEP is scheduled Wednesday to present its reorganization plan to lawmakers on the Legislature’s Natural Resources Committee.

To see more from the Sun Journal, visit sunjournal.com.

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