The owners of three dams in Washington County have tried for decades to get the dams, which are part of a hydropower system, removed from federal oversight. These efforts have failed in the courts, including the U.S. Supreme Court, so now Rep. Bruce Poliquin proposes to change the law to exempt the dams from oversight by the Federal Energy Regulatory Commission.
Federal law is clear that the dams must be operated in a way that does not harm water quality, fish habitat and recreational opportunities. That should not change.
But this case raises important questions about what should happen when impoundments such as these are more valuable as a means of regulating water levels and of more value to camp owners and anglers than they are to the people who own the dams. It is a unique problem that would be better resolved through negotiations than regulatory mandates or law changes.
FERC regulates more than 1,700 dams across the country. It requires dams to meet numerous standards to ensure, among other safeguards, adequate flood control, navigation on the waterway, protection of animal habitat — including fish passage — and water quality.
The dams in question are small and do not directly generate power. Instead, they are used to hold back river water that is used to generate electricity at other dams on the waterway for the mill in Baileyville. The impoundment dams create East and West Grand, Spednik and Sysladobsis lakes. All are part of the St. Croix watershed, an international waterway jointly managed by the U.S. and Canada.
FERC relicensed the dams in recent months but requires upgrades to fish passageways and other improvements as a condition of the license. FERC estimates work will cost about $190,000 per year. If the dams were removed or decommissioned but left in place, the mill would save $1 million per year by simply buying additional electricity from the power grid instead of operating the dams, says the mill’s attorney, Matt Manahan. The mill is in the midst of a $120 million expansion.
Although not an integral part of Woodland Pulp’s hydroelectric generation system, the dams are vital to the fishermen, boaters and camp owners along the waterway. This is an opportunity for them and others interested in the waterway’s health — such as conservation groups that have worked to improve fish habitat and increase the number of native fish on the waterway and the Passamaquoddy Tribe — to work with the mill owners and state officials to find a cooperative solution.
More than two decades ago, Domtar Maine Corp., which then owned the dams, sought to exempt them from FERC oversight, arguing the commission overstepped its authority in requiring licenses for them when, because of regulatory and legal quirks, larger dams in the system that do generate power are not regulated by FERC. In 2003, a federal appeals court upheld the FERC ruling that its oversight was required. The U.S. Supreme Court later denied a petition to hear the case. Poliquin’s bill would make these rulings moot.
The situation is further complicated by lapses within Maine’s Department of Environmental Protection in recent years. In 2013, the DEP forfeited to FERC its right to regulate these dams by missing filing deadlines. DEP said missing the filing deadlines for another dam in western Maine in 2011 was an oversight caused by turnover in the department.
Because of this disappointing record, FERC cannot simply allow Maine to regulate the dams, as Poliquin has suggested.
Woodland Pulp has threatened to stop operating the dams and simply leave their gates open, which would dewater downstream areas, or closed, which would heighten flood risks. These scenarios highlights the danger of a laissez faire approach.
The mill in Baileyville is an important employer in a region with limited economic opportunities. Its long history shows that manufacturing, energy production and environmental stewardship can coincide. Now, however, the company is raising an important question: Should it continue to be required to shoulder the full cost of dams that are of minimal benefit to it but essential to maintaining the recreational opportunities and fish habitat along the St. Croix?
There must be a better answer than continued lawsuits and federal law changes.
