EUSTIS — Fifteen years of work by conservation groups and Maine agencies to require the owner of the Flagstaff Lake Hydropower Storage Project to meet stricter water quality standards was flushed downstream last month.
Maine relinquished its right to manage water at the lake for the next 25 years, said Sean Mahoney, vice president of the Conservation Law Foundation.
According to Jeff Reardon of Trout Unlimited, local control of the Flagstaff water level is gone.
"This leaves the people of Maine at the mercy of the Federal Energy Regulatory Commission with respect to how much Flagstaff Lake levels can be lowered in winter and summer, what amount of water will be released to maintain flows in the Dead River and impacts to habitat and species located along the shores and the shallow waters of Flagstaff Lake," Reardon said.
“It's a total waste,” Mahoney said of the move by the Maine Department of Environmental Protection to waive water quality certification for Flagstaff Lake on Nov. 15.
On Tuesday, he issued a news release in which the Conservation Law Foundation and four conservation groups that worked with DEP accused the department of “bureaucratic malpractice.”
“These groups and the state battled the owner of the Flagstaff Lake Hydropower Storage project for five years to preserve Maine's ability to have any say on the lake levels, water flows, recreational opportunities and other water quality issues, only to have the DEP recently and intentionally waive that right,” Mahoney said.
DEP spokeswoman Samantha DePoy-Warren said Thursday afternoon that when the agency learned of the deadline, it took action.
“When the Attorney General's Office alerted us that our decision deadline was approaching, we requested the applicant withdraw and refile their application by deadline to restart the clock, and they chose not to,” DePoy-Warren said.
At issue was an application for water quality certification in conjunction with the proposed relicensing of the Flagstaff Lake Hydropower Storage Project by FERC.
DEP Project Manager Dana Murch, the department's supervisor of dams and hydropower until he retired in September, sent a series of exit memos to his peers, advising them of his projects and approaching deadlines. The July 13 memo was one such document.
After summarizing 15 years of work on the Flagstaff Lake project, Murch wrote on July 13, “Unless DEP acts to approve or deny the pending application for water quality certification on or before Nov. 15, 2011, certification will be deemed waived by operation of law.”
Missing that deadline, DePoy-Warren said, was an oversight that happened during the department's ongoing reorganization.
“While I am still trying to learn more, I can say that the certification was lost sight of during a transition of Land and Water Quality Bureau leadership and key staff, most notably the loss of our dam's supervisor, who retired this summer,” she said.
She said the end result is that regulation over Flagstaff Lake's hydropower operations moves to FERC.
“I am just learning about this issue which came to the department's attention recently and mine only this week following that (Conservation Law Foundation) release,” DePoy-Warren said.
Mahoney said Thursday that whether it was intentional, it doesn't bode well for Maine.
“It's tragic and, at best, it shows incompetence and/or a staff that's stretched way too thin and, at worst, it shows an intentional waiver of the best and only tool that the state has for conditioning federal projects and that's an absolute waste,” he said.
“This certainly is not a forgone conclusion, as some have suggested, and while this wasn’t a process we intentionally decided on, we do think we can accomplish similar goals in balancing all the uses of the lake by being engaged in the FERC licensing that we would have from the water quality certification process,” DePoy-Warren said.
“Maine DEP intends to have a very present voice in the FERC process as that federal body balances the many uses for and appropriate water levels of that man-made lake moving forward,” she said.
She said DEP was reaching out to FERC to offer data and expertise, "so it may be a part of their considerations.”
A reorganization of the department will help prevent such lapses in the future, she said.
According to Mahoney, the decision to not replace Murch was crucial.
“Dana does not get replaced in September and (the DEP) divvies up his responsibilities amongst three people,” in offices in Portland, Augusta and Bangor, Mahoney said. “None of them with any experience, never mind expertise in this issue of federal hydropower projects and water quality certification.”
The DEP says it will take another look at the situation.
“The decision to not replace Dana Murch and instead to delegate his duties to three other staff was made by a bureau director who was only here from March until July, and certainly is something we’ll be revisiting as a result of this lapse,” DePoy-Warren said.