The Maine Department of Environmental Protection is holding hearings this week in Farmington as it considers whether to grant two necessary permits for a controversial $1 billion Central Maine Power transmission project that would be located in some pristine wooded areas of the state.
But its decision-making process is very different from that of the Maine Public Utilities Commission, another regulatory body reviewing parts of CMP’s request to build a 145-mile transmission corridor from the Canadian border to Lewiston.
The DEP, the PUC, the Land Use Planning Commission and other regulators all have to pass on some aspect of the CMP project.
Here are all the things these different entities will be considering as they review this project, when they expect to make their decisions and how those decisions will affect whether it’s ultimately constructed.
The different entities
To date, the PUC’s hearings, which started earlier, have garnered the most publicity. But the spotlight shifted this week to the combined hearings of the DEP and the LUPC, which oversees the unorganized territory.
There are two major differences in how the DEP and PUC decide whether or not to green flag the CMP project.
One is that the PUC has three commissioners who, with staff input, will make the final decision on CMP’s request for a certificate of public convenience and necessity on its project.
The DEP commissioner, with staff input, will make the final decision on CMP’s request for two permits, one for site location, the other for compliance with the Natural Resources Protection Act, said DEP spokesman David Madore.
The DEP decision also will include the recommendation from the LUPC, whose commissioners will rule on whether the CMP project is allowed and whether it meets the land use standards in the unorganized territory, said LUPC regional supervisor Bill Hinkel.
The second major difference is that the DEP does not allow stipulations such as the one submitted to the PUC, with Gov. Janet Mills’ support, for a 40-year benefits package worth $250 million to towns along the transmission corridor.
Parties to that case can file exceptions and comments on the PUC staff’s recommendation, which came in the form of a 162-page Examiners’ Report, by April 8.
The PUC commissioners are expected to make their decision in April, and will likely firm up the exact date next week, said PUC spokesman Harry Lanphear.
The DEP commissioner’s decision is expected in late October or early November, Madore said.
The NECEC would pipe electricity from the Canadian border through western Maine for use by Massachusetts to meet that state’s clean-energy goals.
What CMP has to prove to environmental regulators
In October 2017, CMP applied for the two types of permits from the DEP: site location and Natural Resources Protection Act.
In this week’s hearings, the DEP and LUPC are focusing on whether CMP can demonstrate that its project:
— Will not unreasonably interfere with the scenic character where it plans to locate its transmission line.
— Will not unreasonably harm any significant wildlife habitat, freshwater wetland plant habitat, or threatened or endangered plant habitat.
— Will not unreasonably impact “protected natural resources” as defined by the Natural Resources Protection Act.
— Has no reasonable alternatives that would have less of an adverse impact on the recreational and natural features of a river crossing.
— Will provide compensation for unavoidable impacts to resources such as cold water fish habitat.
What information those regulators will use to decide
The DEP and LUPC public hearings include citizens and parties to the case, also known as intervenors. The two regulators plan to hold one last public hearing on May 9 to handle overflow questions and information.
After May 9, the public will have 10 calendar days to file written comments to the DEP about the information in the record. Then, for another seven days after that, the public can respond to written comments submitted during the previous 10-day period. Then the record closes.
“From that we have 150 days to take all of the information, including the transcription of the hearings this week, and once it’s done it will be submitted into the record for this project,” Madore said.
“The staff will take all information submitted and all of the information we’ve asked CMP to provide and go through all of that,” he said. “It’s volumes of work considering what this project is. The staff will review it and lay it against the statute and the rules and look at whether [CMP] has met the standard to prove it should be granted the permits.”
The commissioner will consider the staff’s recommendations, then decide whether to approve or deny the permit applications.
Unlike the PUC’s process, the DEP does not allow for a stipulation that would offer financial and other benefits.
“We are bound by statute and rules,” Madore said. “Stipulations are not an opportunity. People can’t just say to us ‘Please add this in’ or ‘Please consider this.’”
Madore said that under the current timetable, the commissioner will make a decision in late October or early November.
After the commissioner issues a final decision, there’s another opportunity for people to challenge it before the Board of Environmental Protection. That board, which is separate from the DEP, can hear the entire case again and decide whether to support the commissioner’s decision or deny it, Madore said.
Anyone not happy with results before the board can take their objections one step further and challenge the commissioner’s decision in court.
What about the Unorganized Territory?
The LUPC will rule on whether the CMP project should be allowed within the Unorganized Territory, an area of northwestern Maine including 429 townships with no local, incorporated municipal government.
The LUPC is a nine-member board composed of county and gubernatorial appointees who will certify to the DEP whether the CMP project is an allowed use within the areas where it is proposed.
The commission also will determine whether the project meets any land use standards that are not considered in the DEP’s review under the Site Location of Development Act.
The commission’s certification is then incorporated into the final permitting decision by the DEP, said LUPC regional supervisor Hinkel.
The commission held a public hearing with the DEP on April 2 as part of the DEP’s week-long hearings. The LUPC and DEP will continue the hearings on May 9.
“Sometime after the hearing and after having the opportunity to review and consider all the hearing materials, the commission will deliberate and ultimately vote on a decision regarding the Site Law certification at a meeting,” Hinkel said.
Staff typically prepare materials to help the commission with its deliberation. This may include preparation of a staff recommendation. The commission will provide the time and location of its meetings following the hearing once they are scheduled. All meetings are open to the public.
How could the Legislature play a role?
Madore said the Legislature will debate a number of bills that potentially could affect how and when the DEP proceeds.
One bill from Sen. Brownie Carson, D-Harpswell, would make the DEP study the project’s net effect on carbon emissions in New England, Quebec and other regions. Greenhouse gas emissions have been one of the most contested aspects of the project.
“The Legislature is asking for additional things that doesn’t come into our statute, so that could create some legal issues,” Madore said.
“If the [greenhouse gas study] were to come in, we don’t know how that would play because it doesn’t fit into any of our statutes now as being part of what we would be reviewing for information,” he said.
“Depending on what the Legislature decides to do with that issue could have an impact on whether we can proceed or not,” he said.