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'Notwithstanding'
First on the agenda was L.D. 1210, a proposal from Sen. Brad Farrin (R-Somerset) that would rewrite Maine’s process for issuing water quality certifications that a dam owner needs to operate.
Before issuing that certification, the Maine Department of Environmental Protection currently measures ecological parameters, like the dam’s habitat impacts, along with the economic benefits it provides.
If the dam’s negative environmental impacts exceed the other criteria the department measures, then the state can hold off on issuing a water quality certification until the owner proves that the dam can meet its standards (see the Ellsworth Hydroelectric Project, for example).
Alternatively, the state can approve the dam’s certification if it has suboptimal environmental impacts but scores well in other criteria, or simply choose to waive the certification process and allow the dam to operate without it.
Farrin’s bill would alter this process by making economic and energy benefits the deciding factor. Without prioritizing those benefits, Farrin argued, the state would continue to lose viable hydroelectric dams and fall behind on energy demands and renewables goals.
“This bill makes sure that the (DEP) takes into account the full benefits of hydro power, not just this environmental impact, but also its role in our clean energy goals, decarbonization efforts and baseline power loads needs,” Farrin testified.
Despite Farrin’s stated intentions to continue weighing environmental outcomes, opponents testified that a single word in the bill means it would do the opposite. As written, L.D. 1210 instructs the DEP to consider a dam’s economic and energy factors “notwithstanding” its environmental impacts.
That conflicts with the federal Clean Water Act’s protections for state waterways, according to DEP hydropower coordinator Laura Paye, a change that would require approval from the U.S. Environmental Protection Agency.
“The Clean Water Act does not place economic considerations above environmental considerations,” Paye told committee members. The bill “is directly modifying a federal process.”
Proponents like major Maine dam owner Brookfield Renewable and the paper company Sappi, meanwhile, argued that the legislation would reign in what they view as DEP’s overly broad interpretation of its role certifying water quality and provide the necessary stability for their businesses to operate.
It was less than five years ago that the state’s near denial of a water quality certificate to Brookfield’s Shawmut Project on the lower Kennebec River became a flashpoint in the governor’s race.
Overall, legislators appeared skeptical of the bill while others floated simply removing “notwithstanding” and finding a compromise that puts more emphasis on economic and energy criteria without sacrificing environmental standards.
Moratorium and more
The other two bills both come from Rep. Richard Campbell (R-Orrington) and would have more wide-ranging, immediate effects on Maine rivers.
The first, L.D. 212, would prevent the state from approving a dam’s removal until the owner has made “all reasonable efforts” to sell the dam and provides estimates for the dam’s monetary value and electrical or mechanical power.
Campbell’s second proposal, L.D. 430, is an emergency measure that would set a two-year moratorium on dam removal and dewatering, extend state deadlines for dam forfeiture and task the DEP with compiling a report on the options available for Maine communities to protect themselves from the negative impacts of dam removal.
He testified that both measures sprouted from the ongoing forfeiture of three Bucksport-area dams, where municipal officials have asked legislators to elongate the statutory process that allows the dams’ parent company, AIM Development USA, to abandon all three dams and dewater the lakes they form without finding a new owner.
“The biggest concern is the devastation that the release of that water would have on the town,” Campbell testified.
Though Paye and legislators expressed interest in reworking the bills to address the issue in Bucksport, they voiced opposition to the legislation’s broad language.
Paye testified that L.D. 212 would make DEP an arbiter of private sales and require them to “subjectively evaluate whether a dam owner's failed sales negotiations are sufficient to demonstrate they made a reasonable effort.”
That provision and the dam removal study proposed in L.D. 430 are both outside of the department’s purview, Paye added, while a moratorium would burden owners of retired dams slated for or undergoing removal.
The DEP has already recommended L.D. 62, a bill that would amend and lengthen the dam forfeiture process, and Paye said the department is receptive to extending it to match the 210 days in Campbell’s proposal. |
