DEP Commissioner Patricia Aho testifying before the Environment and Natural Resource committee. I was there for a work session on LD 1244, “An Act To Amend Environmental Permitting Standards”; the Commissioner was actually testifying on a different bill at the time, she did not comment on LD 1244. Photograph by George Fergusson, 29 April 2015

The Maine Department of Environmental Protection introduced proposed legislation this past spring entitled “An Act To Amend Environmental Permitting Standards.” The proposed legislation, designated LD 1244 and sponsored by Republican Senator Thomas Saviello, was turned over to the Committee on Environment and Natural Resources (ENR) of which he is co-Chair, on Apr 7, 2015. The main thrust of the legislation had to do with changes to the application and permitting process for wind power and micro hydro projects, but sections 10 and 11, tacked onto the end of the bill, were proposed changes to Title 38 MRSA §840 otherwise known as the Water Level Law. This is the law that governs the water level petition process including a requirement for an adjudicatory hearing. This Maine Legislature Information Page  has links to everything pertaining to LD 1244.

I first became aware of the bill on April 24th, a few weeks after it was introduced, and I developed an immediate interest. I didn’t initially feel the need to bring it up on this site because the proposed changes to the law would not affect the Clary Lake water level order, which is already issued, though not yet enforced. However I believed the changes would have a profound impact on other parties contemplating their own water level petitions and so decided to take a stand on the issue. Though I missed the initial work group session where the ENR Committee solicited public testimony, I did attend a subsequent work group session, submitted written comments on behalf of the Clary Lake Association, and was given a brief opportunity to speak on the bill despite the time for public testimony having already passed. I am grateful to both chairs of the committee, Senator Saviello and Representative Welsh, for this opportunity. I believe the Committee heard what I had to say.

The changes requested by the Department included requiring mandatory mediation before any member of the public could file a petition, which I actually thought was a fine idea, but I felt the language was way too loose and needed to be tightened up. In addition, the Department wanted to raise the application fee to cover the actual costs of conducting an adjudicatory hearing. The original language of Section 11 as initially proposed is as follows:

“If the department holds an adjudicatory hearing as a result of a petition or request, the department may charge petitioners or requestors an appropriate licensing fee sufficient to cover costs incurred in conducting the hearing and reviewing evidence, including the time spent by state employees and necessary consultants and contractors in preparing, presenting and reviewing testimony, and in preparation of a department order establishing a water level regime and, if applicable, minimum flow requirements.”

To me, this sounded like rewarding people who call the police to report a crime by charging them for the costs of investigating that crime. It didn’t seem right. Granted, the fee when we filed our petition in January 2012 was a paltry $147 which by anybody’s reckoning was insufficient, and had no where to go but up, but the proposed open-ended bill language sounded to me like the Department could charge whatever they felt like, and it could run into a lot of money. As much as I appreciated the Department’s concerns, I just wasn’t comfortable with their solution.

Apparently neither was the ENR committee. They requested the Department do some research and come back to the Committee with an actual not-to-exceed price for conducting an adjudicatory hearing. They did. The price: not to exceed $20,000. There then followed Committee Amendment S-156 which included striking out the language requiring mandatory mediation and modifying Section 11 to read in part:

“If the department holds an adjudicatory hearing as a result of a petition or request, the department may charge petitioners or requestors an appropriate licensing fee, not to exceed $20,000, sufficient to cover costs incurred in conducting the hearing and reviewing evidence, including the time spent by state employees and necessary consultants and contractors in preparing, presenting and reviewing testimony, and in preparation of a department order establishing a water level regime and, if applicable, minimum flow requirements.”

This bill appeared to be headed to become law. A number of people opposed to the bill also testified or provided written comments including Jeffrey Reardon of Trout Unlimited and Brandon Kulik, a party to the Branch Pond water level petition and a fisheries biologist with Kleinschmidt Associates. Brandon Kulik related to me later that he’d recently spoken with parties at DEP who said the Branch Pond water level petition cost the Department $20,000 and that the Clary Lake petition likely cost even more. Certainly, no one is questioning that a contentious and disputed water level petition can take a great deal of time and cost the Department a lot of money, the only question is who should pay for it. At the work session I attended, Mark Bergeron and Heather Parent of DEP spoke in favor of the legislation. On May 4th it was voted on by the ENR committee and given the recommendation “Ought to Pass.” And then something interesting happened. On June 10 at another meeting of the ENR committee, Democratic Senator Catherine Breen proposed an amendment S-227 to the Committee Amendment S-156; it was read and adopted. This new amendment, if it were implemented, would impose a one-year moratorium on water level petitions. Here’s an excerpt of the Senate Amendment S-227:

Sec. 5. 38 MRSA §840, sub-§7 is enacted to read: 7. Applicability beginning October 1, 2015. Beginning October 1, 2015, the board or the commissioner may not conduct an adjudicatory hearing for the purpose of establishing a water level regime or minimum flow requirements and may not issue an order establishing a water level regime or minimum flow requirements, except that the commissioner may conduct an adjudicatory hearing and issue an order in accordance with this section on a request or petitions submitted prior to October 1, 2015 or may amend or rescind an order issued prior to October 1, 2015. All orders establishing a water level regime or minimum flow requirements issued by the board or the commissioner prior to October 1, 2015, or after October 1, 2015 on a request or petitions submitted prior to October 1, 2015, remain in effect and enforceable until they expire or are rescinded or amended under this subarticle.
This subsection is repealed September 30, 2016.

I don’t know what discussion there was around the new amendment, if any, but the legislation came out of committee with an “Ought To Pass” recommendation. LD 1244 with amendments was subsequently passed by the House on June 12 and by the Senate on June 15. It is now law.

So what’s this got to do with Clary Lake? Nothing, right? We already have our water level order. Well, on June 15, responding to a Procedural Order dated June 2nd, issued by the Lincoln County Superior Court judge hearing the appeal of the Clary Lake water level order, Anthony Buxton, an attorney with the law firm Preti Flaherty who is representing Pleasant Pond Mill LLC (PPM) and Aquafortis Associates LLC (AQF) filed their response informing the Court of their intent to continue to represent PPM and AQF in their appeal. Furthermore, Buxton cited LD 1244 and it’s amendments in his response stating that “the Department has persuaded the Legislature that the Water Level statute… is so flawed that it must be essentially suspended by placing a moratorium on the right of citizens to initiate water level proceedings at least until October, 2016” which clearly shows that Mr. Buxton intends to use this legislation to attack the Clary Lake water level order. I have no doubt this tactic will be unsuccessful.

Clearly, DEP’s purpose for initiating this legislation was to first ensure that a sufficient effort had been made by lake shore owners or other parties to resolve a water level dispute through mediation before considering filing a petition, and second, to revise the fee structure in the statute so as to offset the substantial costs associated with holding an adjudicatory hearing for a water level proceeding, once a water level petition was filed. This legislation is about money, and who should pay it. Period. As the record shows, there is nothing in the legislation or the testimony submitted by the Department or by anyone else suggesting that the Department feels the water level law is in any way “flawed” or in need of an overhaul. I’m sure the Court will see this is the case and dismiss Mr. Buxton’s allegation.

We will continue to monitor this matter and provide updates if and when any new information becomes available.