An Act Regarding Energy-generating Facilities
Maine Legislature, Session 123, LD 1071
Committee: Utilities and Energy
Sponsors: ADAMS, BARTLETT, BERRY, EATON, EBERLE, FLETCHER, MIRAMANT, RINES
Amends: 38 MRSA §480-A, 38 MRSA §480-B, 38 MRSA §630, 38 MRSA §632, 38 MRSA §633, 38 MRSA §634, 38 MRSA §636

Legislative Document 
No. 1071 
H.P.789 
House of Representatives, March 6, 2007 
An Act Regarding Energy-generating Facilities 
Reference to the Committee on Utilities and Energy suggested and ordered printed. 
Presented by Representative ADAMS of Portland. 
Cosponsored by Senator BARTLETT of Cumberland and 
;r;~ 
frl.7J?d£~ 
MILLICENT M. MacFARLAND 
Clerk 
Representati ves: BABBIDGE of Kennebunk, BERRY of Bowdoinham, EATON of Sullivan, 
EBERLE of South Portland, FLETCHER of Winslow, MacDONALD of Boothbay, 
MIRAMANT of Camden, RINES of Wiscasset. 
Primeti un re(;yded paper 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 38 MRSA §480-A, as enacted by PL 1987, c. 809, §2, is amended to read: 
§480-A. Findings; purpose 
The Legislature finds and declares that the State's rivers and streams, great ponds, 
submerged lands, fragile mountain areas, freshwater wetlands, significant wildlife habitat, 
coastal wetlands and coastal sand dunes systems are resources of state significance. 
These resources have great scenic beauty and unique characteristics, unsurpassed 
recreational, cultural, historical and environmental value of present and future benefit to 
the citizens of the State and that uses are causing the rapid degradation and, in some 
cases, the destruction of these critical resources, producing significant adverse economic 
and environmental impacts and threatening the health, safety and general welfare of the 
citizens of the State. 
The Legislature further finds and declares that there is a need to facilitate research, 
develop management programs and establish sound environmental standards that will 
prevent the degradation of and encourage the enhancement of these resources. It is the 
intention of the Legislature that existing programs related to Maine's rivers and streams, 
great ponds, submerged lands, fragile mountain areas, freshwater wetlands, significant 
wildlife habitat, coastal wetlands and sand dunes systems continue and that the 
Department of Environmental Protection provide coordination and vigorous leadership to 
develop programs to achieve the purposes of this article. The well-being of the citizens 
of this State requires the development and maintenance of an efficient system of 
administering this article to minimize delays and difficulties in evaluating alterations of 
these resource areas. 
The Legislature further finds and declares that the cumulative effect of frequent 
minor alterations and occasional major alterations of these resources poses a substantial 
threat to the environment and economy of the State and its quality of life. 
Sec. 2. 38 MRSA §480-B, sub-§7, as amended by PL 1999, c. 243, §11, IS 
further amended to read: 
7. Permanent structure. "Permanent structure" means any structure constructed or 
erected with a fixed location or attached to a structure with a fixed location for a period 
exceeding 7 months each year, including, but not limited to, causeways, piers, docks, 
concrete slabs, piles, marinas, retaining walls and buildings .. A floating structure attached 
to submerged land by means of an anchor for a period exceeding 7 months each year is 
considered a permanent structure. 
Sec. 3. 38 MRSA §480-B, sub-§8, as enacted by PL 1987, c. 809, §2, is amended 
36. 
to read: 
8. Protected natural resource. "Protected natural resource" means coastal sand 
dune system, coastal wetlands, submerged lands, significant wildlife habitat, fragile 
mountain areas, freshwater wetlands, great ponds or rivers, streams or brooks, as these 
terms are defined in this article. 
Sec. 4. 38 MRSA §480-B, sub-§l1 is enacted to read: 
11. Submer2ed lands. "Submerged lands" has the same meaning as in Title 12, 
section 1801, subsection 9. 
Sec. 5. 38 MRSA §630, first ~, as enacted by PL 1983, c. 458, § 18, is amended 
to read: 
This subarticle may be cited and referred to in proceedings and agreements as the 
"Maine 'Naten .. 'ay Hydropower Development and Water Resources Conservation Act." 
Sec. 6. 38 MRSA §632, sub-§3, as enacted by PL 1983, c. 458, § 18, is amended 
to read: 
3. Hydropower project. "Hydropower project" means any development whlefl that 
utilizes the flow of water as a source of electrical or mechanical power or whlefl that 
regulates the flow of water for the purpose of generating electrical or mechanical power. 
A hydropower project development includes all powerhouses, dams, water conduits, 
transmission lines, water impoundments, roads and other appurtenant works and 
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structures that are part of the development and, in the case of tidal power projects, also 
includes all turbines, foundations and any other fixed or floating structures that are part of 
the development. 
Sec. 7. 38 MRSA §632, sub-§4 is enacted to read: 
4. Tidal power project. "Tidal power project" means a hydropower project that 
converts the energy of tidal action into electricity. 
Sec. 8. 38 MRSA §633, sub-§l, as affected by PL 1989, c. 890, Pt. A, §40 and 
amended by Pt. B, § 182, is further amended to read: 
1. Permit required. Ne A person may not initiate construction or reconstruction of 
a hydropower project, ef structurally alter a hydropower project in ways that change 
water levels or flows above or below tfle f! dam or structurally alter a tidal power project, 
without first obtaining a permit from the department. 
Sec. 9. 38 MRSA §634, sub-§l, as repealed and replaced by PL 1989, c. 309, §3 
and affected by c. 890, Pt. A, §40 and amended by Pt. B, § 183, is further amended to 
read: 
1. Coordinated permit review. Permits required under the following laws are not 
I 
required by any state agency for projects reviewed or exempted from review under this 
subarticle: natural resource protection laws, chapter 3, subchapter I 1, article 5-A; site 
location of development laws, chapter 3, subchapter I 1, article 6; and land use regulation 
laws, Title 12, chapter 206-A. Notwithstanding section 654, the department may attach 
reasonable conditions consistent with this subarticle concerning the operation of 
hydropower projects. The commissioner shall give written notice to the Commissioner of 
Inland Fisheries and Wildlife and the Commissioner of Marine Resources of the intent of 
any applicant for a permit to construct a dam or a tidal power project. 
Sec. 10. 38 MRS A §635, sub-§3, as affected by PL 1989, c. 890, Pt. A, §40 and 
amended by Pt. B, § 184, is further amended to read: 
3. Hearing. Schedule a hearing on the proposed project. A hearing must be held 
prior to the department's approval or disapproval of any proposed tidal power project. 
Any hearing held 
under this subsection must follow the notice requirements and 
procedures for an adjudicatory hearing under Title 5, chapter 375, subchapter I¥ 1. After 
a hearing is held under this subsection, the department shall make findings of facts and 
issue an order approving or disapproving the proposed project, as provided in subsections 
and 2. 
Sec. 11. 38 MRSA §636, sub-§7, ~A, as amended by PL 1989, c. 309, §5, is 
further amended to read: 
A. 
Whether the project will result in significant benefit or harm to soil stability, 
coastal and inland wetlands ef, the natural environment of any surface waters and 
their shorelands or submerged lands; 
Sec. 12. 38 MRSA §636, sub-§7, ~, as amended by PL 1989, c. 309, §6, is 
further amended to read: 
E. 
Whether the project will result in significant flood control benefits or flood 
hazards; ami 
Sec. 13. 38 MRSA §636, sub-§7, ~, as amended by PL 1989, c. 309, §6, is 
further amended to read: 
F. 
Whether the project will result in significant hydroelectric energy benefits, 
including the increase in generating capacity and annual energy output resulting from 
the project, and the amount of nonrenewable fuels it would replace~ ; and 
Sec. 14. 38 MRSA §636, sub-§7, ~G-l is enacted to read: 
G-l. 
Whether, in the case of a tidal power project, the project will result in 
significant benefit or harm to marine resources, as defined in Title 12, section 6001, 
or to submerged or intertidallands. 
Sec. 15. Evaluation of laws and rules related to permits for tidal energy 
projects. The Department of Environmental Protection, in collaboration with the Public 
Utilities Commission, the Executive Department, State Planning Office, the Department 
of Marine Resources, the Department of Conservation and the Atlantic Salmon 
Commission, shall conduct a comprehensive review of the laws and regulations 
governing the permitting of hydropower projects for the purpose of identifying 
appropriate changes to these laws and rules to reflect the legal, policy and technical issues 
presented by the development of tidal power and tidal energy generating facilities in the 
State. The Department of Environmental Protection shall coordinate this review with any 
similar activities it is conducting under the State Enhancement Grant Program of the 
National Oceanographic and Atmospheric Administration, Office of Ocean and Coastal 
Resource Management. No later than January 1, 2008, the Department of Environmental 
Protection shall submit a report on the results of the review, including recommendations, 
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suggested legislation and proposed rule changes, to the Joint Standing Committee on 
Utilities and Energy, the Joint Standing Committee on Marine Resources and the Joint 
Standing Committee on Natural Resources. After reviewing the report, the Joint Standing 
Committee on Utilities and Energy is authorized to submit legislation related to the 
permitting of tidal power projects to the Second Regular Session of the 123rd Legislature. 
SUMMARY 
This bill amends the laws governing the state permit process and requirements 
permits for hydropower projects to address their application to hydropower projects that 
use tidal energy to produce electricity. 
The bill requires that the Department of 
Environmental Protection conduct an adjudicatory hearing prior to the approval or 
disapproval of a tidal power project. The bill also clarifies the existing hydropower 
project approval criteria to account for the potential impacts of tidal power projects on 
marine resources and submerged or intertidal lands. The bill requires the Department of 
Environmental Protection to lead a review of laws and rules governing the permitting of 
hydropower projects to make recommendations to amend these laws and rules to reflect 
the legal, policy and technical issues presented by the development of tidal energy 
projects and issue a report by January I, 2008. The bill authorizes the Joint Standing 
Committee on Utilities and Energy to submit legislation related to the permitting of tidal 
power projects to the Second Regular Session of the 123rd Legislature following its 
review of the report. Finally, this bill also adds references to submerged lands in the 
natural resources protection laws.