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Maine Dam Removal Policy Advisory Group Minutes
Acting SPO Director, David Keeley, called the meeting to order with a welcome, a round of introductions and an agenda review. Betsy Elder presented a set of ground-rules for productive participation in the discussion and solicited comments. The group accepted them.
David indicated the Land and Water Resources Council formed the Maine Dam Removal Policy Advisory Group to solicit input from the primary stakeholders on dam removal issues for the Council to consider as it reviews the State’s dam removal laws and policies this fall, and that the Advisory Group itself is not tasked with developing the State’s dam removal policy. In carrying out this advisory role, committee members will educate themselves and others about pertinent Maine dam removal issues through a collaborative dialogue. The Committee discussed the charge and agreed to work collaboratively, make decisions by consensus as opposed to voting, and offer policy recommendations for the Council’s consideration by December 2002 in time for the current Administration and Council to consider them. Fall meetings of the Advisory Group are on November 7th (9-12:00) and December 3rd (1-4:00pm) at the State Planning Office. Under this schedule, the Land and Water Resources Council would consider the Committee’s recommendations at its December 12, 2002 meeting.
Several members offered suggestions for other stakeholders that might be added to the Advisory Group (e.g., a representative from the Utility Committee, municipalities, etc.). The group agreed there were many other parties with an interest and that it needs ways to keep people informed of our discussions over the next three months. Betsy described the pending SPO website for this committee.
Several questions came up regarding the regulatory process and DEP’s Dana Murch offered a brief summary of the application of the MWDCA (Maine Waterway Development and Conservation Act) and the NRPA (Natural Resources Protection Act) in dam removal cases. Roughly 750 dams were registered with DEP in 1993 (when registration was discontinued as a result of a then new law on Dam Abandonment). Approximately 125 of these are hydropower dams and subject to State scrutiny under the MWDCA and Clean Water Act (401 Water Quality Certification) in the event of a dam removal. Roughly 625 of the previously registered dams are non-hydro dams subject to the NRPA in the event of a dam removal.
Betsy offered a summary of and an update on her progress in producing an SPO dam removal Website (under special projects on SPO web page) and A Compendium of Maine State Agency Hydropower and Dam Removal Policies. Betsy offered a summary presentation of her Summer Survey of Dam-Owners 2002. This data seems to suggest that among non-hydro dams, which were well represented in the survey, dam removal and dam abandonment are not the intended or preferred outcomes that dam owners envision for their dams in the near future. For non-hydro dams, the need for potential repairs for safety purposes and to maintain the water levels that are currently enjoyed by landowners in proximity to the dams appears to be an emerging issue.
There was a long discussion about whether the dam removal policy should apply only to non-hydro dams or to FERC dams as well. A suggestion to have Stephanie Lindloff from the N.H. Department of Environmental Services make a presentation at the next meeting was offered before the morning break.
After the break there was more discussion about whether dam removal policy should apply to both hydro and non-hydro dams. Dana Much suggested that the volume of aging non-hydro dam infrastructure on the Maine landscape is likely to precipitate an insurance crisis for many dam-owners in the near future. It was noted that safety issues have driven dam removal and repair programs in New Hampshire and Pennsylvania. It was noted generically that lake outlet dams are unlikely to be removed as the lakeshore property owners will usually find the necessary resources to preserve the water levels that they have come to appreciate. The group agreed that discussion of dam removal policy and subsequent recommendations to the Land and Water Resources Council should encompass both hydro and non-hydro dams.
The Committee then used the remainder of its time discussing the many issues the Group might address. Betsy presented the ranking results of the eleven Committee members who identified their issues in advance. She then solicited three primary issues from Advisory Group members who had not articulated them prior to the meeting. It was agreed that all issues would be identified and not ranked at this time. (Please find an amalgamation of the group’s input and work together on 9/24/02 in a separate document dated 9/30/02 that articulates Guiding Principles and Observations for Dam Removal Policy in Maine.)
A series of next steps were identified including:
§ State agencies provide their input to the Compendium within two weeks to that materials could be provided to the Advisory Group; § Prepare a matrix of issues identified by the Committee and distribute prior to the next meeting; § Continue with our ongoing self-education about dam removal issues; § Consider lessons-learned and case studies that might inform the Committee’s deliberations; and § Review current materials for a flow chart describing FERC and State regulatory processes. There was also a request about these processes as they pertain to dam removal. Maine Dam Removal Policy Advisory GroupDecember 3, 2002 Meeting Minutes On behalf of acting director David Keeley, Ted Koffman chaired the meeting and called it to order with a welcome, a round of introductions and an agenda review. Ted led the discussion by addressing the current status of this group. He emphasized that this was our last scheduled meeting under the King administration and that with the change in administration there would be new appointments to the Land and Water Resources Council, whose request for action initiated the work of this advisory group on dam removal. He emphasized that SPO must await direction from a newly formed LWRC in order to continue. He speculated hypothetically that the Maine Dam Removal Policy Advisory Group's mandate may change with a new council or the group may be reinstated and directed to continue working as it has been. This uncertainty about the disposition of a reformed council created a sense of urgency about producing a product that all claim with a sense of ownership and that can endure as a recommendation to the new council. Ted advised us all to use our time well to temporarily wrap-up and generate a recommendation that communicates the collective will of the group. Betsy Elder asked the group to review the minutes from November 7th for accuracy. There were a couple of amendments made to the draft. It was observed that both Dana Murch and Larry Gleeson addressed dam removal in the context of the site location law. Ken Fletcher offered an embellishment on the albatross effect, so that the following language was added. Existing FERC and State procedures can be employed to address the issue of dam abandonment, but the controvertible issues lie in whether the existing statues work and if the dam owner will be paid what the dam is worth. Betsy Elder offered a brief update on the Compendium. SPO has received modern documents on hydropower policy now from IFW but still awaits a dam removal aspect. Also, SPO is still waiting to receive both policy pieces from the DOC and DMR. The importance of the Compendium as a starting point of our analysis of existing dam law and protocol was emphasized. The next item on the agenda was a presentation on Shoreland Zoning and Dam Removal by Rich Baker of the Maine DEP. He provided a summary statement of his presentation, which forms the basis of what follows here. The Mandatory Shoreland Zoning Act, originally enacted in 1971, requires all municipalities to adopt zoning ordinances regulating land use activities in the shoreland zone. The shoreland zone includes all land areas within 250 feet, horizontal distance, of the normal high-water line of any great pond, river or saltwater body; within 250 feet, horizontal distance, of the upland edge of a coastal or freshwater wetland; and within 75 feet, horizontal distance, of the normal high-water line of a stream. In the mid-1980's, after a court ruled that the shoreland zoning law did not authorize municipalities to regulate structures that extended over or into the water, the legislature amended the shoreland zoning law to allow municipalities to regulate -1- structures that extend in or over the water, such as bridges and dams. Specifically, Title 38 MRSA § 439-A(2) states that, .municipalities may enact ordinances affecting structures that extend or are located over the water or are placed on lands lying between high and low waterlines or within wetlands. The Department of Environmental Protection subsequently amended its State of Maine Guidelines for Municipal Shoreland Zoning Ordinances to include a provision that municipalities can regulate structures extending into or over the water. Nearly all of the municipalities then amended their ordinances to include the regulation of structures which extend into or over the water. Although most locally adopted shoreland zoning ordinances regulate structures that extend into or over the water, there are few, if any, standards in those ordinances which pertain to dam construction or removal. Of course, erosion control standards are included, but there is no proposed guidance regarding the actual construction design or demolition process. In short, the ordinance provides little guidance to the town or to the developer of the project. At the time of the DEP's most recent significant modification to its Guidelines, dam removal was not even contemplated. Regarding the removal of dams, there is not a specific provision in the DEP's Guidelines requiring a permit for that activity. However, since most removals will involve earthmoving or filling either in or adjacent to the water, a permit would usually be required by those towns which have chosen to regulate structures extending in or over the water. If there were no fill or earthmoving involved, one could argue that a permit is not required for the removal of a dam pursuant to the shoreland zoning ordinance. If the legislature or other State policy makers conclude that towns should have control over dam construction and removal, the DEP should develop standards within its Guidelines for those activities. Towns will need greater guidance if we expect them to adequately address new dam construction and the demolition of others. There were a few questions of Rich, the answers of which are summarized briefly here. Shoreland zoning is administered locally. In the case of a project which involves multi-town ownership, local inclusion in the process is important. Towns will need guidance on dam removal, especially in cases which involve coastal wetlands. Rich stated that DEP is working on changes, to avoid future glitches, and to clarify the guidelines. Jeff Reardon was absent and therefore unable to make his presentation on the potential for hydropower dam removal. It was the consensus of the group that the remainder of our time be spent in generating recommendations and a product for the LWRC out of the Guiding Principles to Consider in a Dam Removal Proceeding and the Important Dam Removal Issues, which SPO provided. (see attached) Stepping out of her role as impartial facilitator and support staff, Betsy suggested that this most recent edit of the group's work integrates her advice on some items that are missing and on aspects where the language required further clarification. In an advisory capacity, she went through the two pages suggesting what her changes were and why she made them. After presenting these changes, the group discussed them in great detail. There was a -2- long discussion of the bullet, which states, Consider exempting FERC dams from further State regulation, beyond what is covered by FERC. After long consideration of what the originator of this concept might have meant by it, it was determined that SPO should check with Jeff Reardon about it. There was discussion about what unobstructed access means and whether use of the words connectivity or fragmentation are helpful or confusing to the reader. DIFW's Steve Timpano offered to provide official, scientific definitions for the group. Discussion ensued about all ten items, which were renamed, Important Considerations for Dam Removal Proceedings. Edits were offered processed and worked by the group toward final language, which is reflected in the final product to the LWRC. (see attached) The areas which were especially problematic to resolve final language on were the items on Costs and Cost/Benefits Analysis and a method for evaluating beneficial and adverse impacts. Endangered species and climate change were added to the Ecological Impacts list. After working with the Important Dam Removal Issues section, it was decided by the group that the sub-topics in this issues section were not exhaustive or comprehensive and rather than submit an incomplete list to the LWRC for consideration, the group would rather table them for further development later. There was some discussion of having SPO do a white paper report on dam removal in Maine to serve as a tool to inform the advisory group and those in decision-making capacities in the legislature about dam removal issues. Betsy Elder indicated that she had already been working on such a report. The group adjusted its focus and with limited time left, turned its attention to generating recommendations to the LWRC. It was decided by the group that their two primary recommendations to the LWRC were to finish the production of the Compendium and to reconvene this group, or one very much like it, to continue to identify deficits in Maine's dam law and to find solutions to remedy these problems. Betsy Elder promised to edit the group's work into a product for review within a few days so that it could be available on time for the LWRC's last meeting on December 12, 2002. She thanked the group for their diligent and focused effort in creating this product of the group's thinking and expressed hope that, if the reformed LWRC was willing, the group may reconvene to continue this important work in late January or early February 2003. -3- DAM REMOVAL IN MAINE Maine Dam Removal Policy Advisory Group and the Maine State Planning Office On May 9, 2002, the Land and Water Resources Council, directed then by Evan Richert, requested the Maine State Planning Office to convene an advisory group, comprised of legislators and stakeholders, to analyze and evaluate the potential need for a dam removal policy in Maine. Concurrently at the request of the LWRC, the SPO initiated work with an expanded FERC Coordinating Committee, to include all State agency staff whose mandates involve dams, to update the state's hydropower policies and generate a written policy, which reflects existing law and its application to dam removal. At this point, SPO has published an incomplete draft of this Compendium of Maine State Agency Hydropower and Dam Removal Policies and SPO continues to pursue a final product. The Maine Dam Removal Policy Advisory Group has met three times during fall of 2002, has educated itself about dam removal issues in Maine and has generated a collaborative dialogue to tease out the primary issues facing Maine in its consideration of a dam removal policy. The work of this group is documented and displayed on the SPO website which can be accessed at http://www.maine.gov/spo/energy/damremoval/damremoval.htm On behalf of the Maine Dam Removal Policy Advisory Group, SPO offers the following considerations and recommendations to the LWRC for its review and endorsement. Important Considerations for Dam Removal Proceedings
1.Energy Hydropower resources should continue to be an important source of electric power in the State because of the benefits provided by hydroelectricity, including; clean air, reliance on indigenous energy resources rather than foreign energy resources and improved energy security and reliability through fuel diversity. 2.Unobstructed access Free flowing rivers, unobstructed by man-made devices, are important cultural, economic and natural resources. 3. Fish passage Promoting effective fish passage and fishery restoration are important considerations. 4. The process should include meaningful opportunities for Public Participation Public education and statewide, regional and local participation throughout dam removal proceedings is essential to insure that broad and specific concerns are considered. 5. A comprehensive, accurate method for evaluating the beneficial and adverse impacts of a dam removal is important. Recreational, social, energy, environmental and economic values provided by the dam (e.g., value of hydropower, flood control, fire protection, safety, etc.) and the environmental values of dam removal (e.g., fish restoration, water quality, etc.) should be publicly identified and documented. -1- 6.The process should include identification and analysis of Ecological Impacts. The potential for adverse and beneficial ecological impacts, such as those listed below, should be publicly identified and recognized. · Physical and Chemical Components · Biological Components · Wetlands creation and diminishment · Habitat creation and diminishment · Water Quality enhancements and impacts · Air Quality enhancements and impacts · Endangered Species · Climate Change 7. Safety and Liability Issues should be publicly identified and recognized. 8. The process should include identification and recognition of Historical Issues. 9. The process should include identification and recognition of total Engineering, De-Construction and Construction Costs, both direct and indirect. 10.Floodplain Issues and Impacts should be publicly identified and recognized. Dam Removal Policy Recommendations to the LWRC
There is a lack of understanding about Maine law and state agency policy governing dam removal as well as the interaction between federal and state processes. The Maine Dam Removal Policy Advisory Group recommends the following actions to remedy this problem.
-2- Maine Dam Removal Policy Advisory Group
Organization Representation Large Hydropower Owners Dan Riley Bernstein Shur Small Hydropower Owners Beth Nagusky Independent Energy Prod. Pulp and Paper Association John Williams Maine Pulp & Paper Assoc. Rural Caucus Rep. Carol Weston (Montville) Rural Caucus Rep. Zachary Matthews ((Winslow) Rural Caucus Rep. Russell Treadwell (Carmel) Committees of Jurisdiction Rep. Ted Koffman- Natural Resources Sen. Ken Lemont DMR Committee Matt Dunlap IFW Committee Federal Gordon Russell U.S.Fish &Wildlife Serv. NGO's/non-profits Nick Bennett Natural Resources Council Andy Goode Atlantic Salmon Federation Jeff Reardon Trout Unlimited Steve Koenig- Project Share Barry Woods Coastal Conservation Assoc Tribal Government John Banks Penobscot Indian Nation Citizen Group Ken Fletcher Save Our Sebasticook Maine State Planning Office Chairman David Keeley Acting Director Maine Dam Policy Development Staff Working Group Betsy Elder chairperson- SPO Art Speiss - SHPO Liz Hertz SPO Kirk Mahoney - SHPO Lou Siddell SPO Deane Van Dusen MDOT Dana Murch DEP David Rocque - Agriculture Steve Timpano IFW Norm Dube ASRSC Tom Squiers DMR Gail Wipplehauser DMR Bud Newell DOC Ralph Knoll DOC Todd Burrowes SPO Tony Fletcher MEMA -3- DAM REMOVAL IN MAINE Maine Dam Removal Policy Advisory Group and the Maine State Planning Office [Straw-man Proposal] For December 3, 2002 Guiding Principles to Consider in a Dam Removal Proceeding
[for Dam Removal Policy in Maine (in no special order)]
1. Energy Hydropower resources should continue to be an important source of electric power. What are the benefits provided by the dam and what is the impact of dam removal on energy benefits forgone? 2. Unobstructed access -- Free flowing rivers are important cultural, economic and natural resources. Restored unobstructed access and diminished fragmentation are primary goals. 3. Fish passage The passage of fish over and around dams is important and should support fish restoration plans. The engineering and implementation of nature-like fishways when remediating a dam removal is a priority. 4. The process should include meaningful opportunities for Public Participation Public education and meaningful statewide, regional and local participation throughout dam removal proceedings is essential to insure that broad and specific concerns are addressed. 5. The process should include consideration of Cost and Benefits Analysis - What are the impacts of losing benefits provided by the dam, such as flood control and aesthetics? The potential for recreational, social and economic costs (e.g., value of hydropower, flood control, fire protection, safety, etc.) and the environmental benefits (e.g., restoration, water quality, etc.) should be publicly identified and documented. 6. The process should include analysis of Ecological Impacts - The potential for ecological impacts [,specifically air quality impacts,] should be publicly identified and recognized. · Physical and Chemical Components · Biological and Ecological Components · Wetlands creation and diminishment · Habitat creation and diminishment · Water Quality enhancements and impacts · Air Quality enhancements and impacts 7. Safety and Liability Issues (combined) should be publicly identified and recognized. 8. The process should include identification and recognition of Historical Issues. 9. The process should include identification and recognition of Engineering, De-Construction and Construction Costs. 10.Floodplain Issues and Impacts should be publicly identified and recognized. Important Dam Removal Issues [(in no special order)] For December 3, 2002
- Produce a Compendium of Maine State hydropower and dam removal laws, policies, and procedures; disseminate the Compendium and inform people. -Produce an SPO report which
other ideas?
3. Maine needs to recognize the clean air benefits of hydropower and give priority consideration in dam removal proceedings. Key issues to consider include:
DAM REMOVAL IN MAINE Maine Dam Removal Policy Advisory Group and the Maine State Planning Office For December 3, 2002 Guiding Principles to Consider in a Dam Removal Proceeding 2.Unobstructed access -- Free flowing rivers are important cultural, economic and natural resources. Restored unobstructed access and diminished fragmentation are primary goals. 3. Fish passage The passage of fish over and around dams is important and should support fish restoration plans. The engineering and implementation of nature-like fishways when remediating a dam removal is a priority. 4. The process should include meaningful opportunities for Public Participation Public education and meaningful statewide, regional and local participation throughout dam removal proceedings is essential to insure that broad and specific concerns are addressed. 5. The process should include consideration of Cost/Benefits Analysis -- What are the impacts of losing benefits provided by the dam, such as flood control and aesthetics? The potential for recreational, social and economic costs (e.g., value of hydropower, flood control, fire protection, safety, etc.) and the environmental benefits (e.g., restoration, water quality, etc.) of dam removal should be publicly identified and documented. 6. The process should include analysis of Ecological Impacts -- The potential for Ecological impacts should be publicly identified and recognized. · Physical and Chemical Components · Biological and Ecological Components · Wetlands creation and diminishment · Habitat creation and diminishment · Water Quality enhancements and impacts · Air Quality enhancements and impacts 7. Safety and Liability Issues should be publicly identified and recognized. 8. The process should include identification and recognition of Historical Issues. 9. The process should include identification and recognition of Engineering, De-Construction and Construction Costs. 10.Floodplain Issues and Impacts should be publicly identified and recognized. Important Dam Removal Issues
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