An Act To Protect and Enhance Maine Marine Fisheries
Maine Legislature, Session 124, LD 1282
Committee: Natural Resources
Sponsors: DAMON, EATON, SULLIVAN, BOLDUC, DUCHESNE, EBERLE, PENDLETON, PERCY
Amends: 38 MRSA §341-D, 8 MRSA §464

MAINE STATE LEGISLATURE 
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124th MAINE ·LEGISLATURE 
Legislative Document 
No. 1282 
In Senate, March 31, 2009 
An Act To Protect and Enhance Maine Marine Fisheries 
Reference to the Committee on Natural Resources suggested and ordered printed . 
Presented by Senator DAMON of Hancock. 
Cosponsored by Representative EATON of Sullivan and 
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JOY 1. O'BRIEN 
Secretary of the Senate 
. Senator: SULLIVAN of Yark, Representatives: BOLDUC of Auburn, DUCHESNE of 
Hudson, EBERLE of South Portland, MacDONALD of Boothbay, PENDLETON of 
Scarborough, PERCY of Phippsburg. 
Printed on recycled paper 
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Be it enacted by the People ofthe State of Maine as follows: 
Sec. 1. 38 MRS A §341-D, sub-§3, as amended by PL 1995, c. 642, §§ 1 and 2, is 
further amended to read: . 
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3. Modification, revocation or .suspension. After written notice and oppoitunity for 
a hearing pursuant to the Maine Administrative Procedure Act, Title 5,chapter 375, 
subchapter I¥ :L the board may shall modify in whole or in part any license, or may issue 
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an order prescribing necessary corrective action, or may act in accordance with the Maine 
Administrative Procedure Act to revoke or suspend .a license, whenever the board finds 
that: 
A. 
The licensee has violated any condition of the license; 
B. The licensee has obtained a license by misrepresenting or failing to disclose fully 
all relevant facts; . 
C. 
The licensed discharge or activity poses a threat to human health or the 
environment; 
D. 
The license fails to include any standard, condition or limitation legally required 
on the date of issuance; 
E. 
There has been a change in any condition or circumstance that requires 
revocation, suspension or a temporary or permanent modification of the terms of the 
license; 
F. 
The licensee has violated any law administered by the depaIiment; 6f 
G. 
The license fails to include any standard, condition or limitation required 
pursuant to the federal Clean Air Act Amendments of 19907~ 
H. The licensed discharge or activity is causing a violation of the water quality 
classification system established in chapter 3, subchapter 1, article 4-A. 
For the purposes of this subsection and subsection 3-A, the term "license" includes any 
license, permit, order, approval or certification issued by the department and the term 
"licensee" means the holder of the license. 
Sec. 2. 38 MRSA §341-D, sub-§3-A is enacted to read: 
3-A. Petition for modification, revocation or suspension. A person mav petition 
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the board to modify, revoke or suspend a license. Within 60 days of receipt of such a 
petition, the board shall determine if there is substantial evidence· that one or more of the 
criteria set forth in subsection 3, paragraphs A to H have been met. . If the board 
determines that such substantial evidence exists, the board shall hold a hearing on the 
petition and issue a final decision within 180 days of receipt of the petition. The board 
may dismiss· the petition if it finds that none of the criteria set forth in subsection 3, 
paragraphs A to H have been met. A decision by the board to dismiss a petition filed 
under this subsection constitutes final agency action and may be appealed in accordance 
with Title 5, chapter 375, subchapter 7. 
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Sec. 3. 3.8 MRSA §464, sub-§14 is enacted to read: 
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14. Dams used to generate hydroelectric power; requirement. The department 
may approve water quality certification pursuant to the Federal Water Pollution Control 
Act, Public Law 92-500, Section 401, 33 Stat. 1341 for a dam used to generate 
hydroelectric power only if the dam provides safe and effective passage for all 
diadromous fish indigenous to the body of water on which the dam is located. 
A. The department may not waive its authority to approve water quality certification 
pursuant to the Federal Water Pollution Control Act, Public Law 92-500, Section 
401, 33 Stat. 1341 for a dam used to generate hydroelectric power that does not 
provide safe and effective passage for all diadromous fish indigenous to the body of 
water on which the dam is located. 
B. For every day a safe and effective passage is not in effect, the owner of the dam 
may be fined not less than $1,000 by the department. 
C. 
For purposes of tllis subsection, "safe and effective passage" means that the 
passage provided does not kill or severely injure the fish when the fish are nligrating 
upstream or downstream past the dam and that the passage provided allows fish to 
nligrate past the dam in a manner that does not impair the reproductive viability of 
the fish. "Safe and effective passage" does not include any method of passage that 
entails the removal of diadromous fish from the vicinity of the dam for any period of 
time.' This paragraph may not be construed to require safe and effective passage for 
diadromous fish through operating turbines of the dam. 
D. A person may commence a civil action on that person's own behalf against any 
person, inCluding any governmental instrumentality or agency, who is alleged to be in 
violation of this section. The Superior Court has jurisdiction to enforce this section 
and impose fines of up to $10,000 per day per violation. The Superior Court, in 
issuing any final order in any action brought pursuant to this section, may award costs 
of litigation, including reasonable attorney's fees and expert witness fees, to any 
prevailing or substantially prevailing party seeking to enforce this section against a 
violator whenever the court deternlines the award is appropriate. 
Sec. 4. 38 MRS A §466, sub-§4-A is enacted to read: 
4-A. Diadromous fish. 
"Diadromous fish" means species of fish that use both 
marine and freshwater habitats during their life cycle. 
Sec. 5. Modification of water quality certification approvals. Within 60 
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days of the effective date of this Act, the Board of Environmental Protection, referred to 
in this section as "the board," shall schedule one or more public proceedings to modify 
the water quality certification of dams used to generate hydroelectric power in the State to 
condition water quality certification on the agreement by the owner ofthe dam that: 
1. Within 2 years of issuance of the modified order pursuant to this section, the dam 
will provide safe and effective fish passage for all diadromous fish species indigenous to 
the body of water on which the dam is located and within the hisforic ranges of thosefish 
species; and 
2. Within 60 days of the issuance of the modified order pursuant to this section, the 
owner of the dam will subnlit a license amendment application to the Federal Energy 
Regulatory Commission to incorporate the condition set forth in subsection 1 into the 
federal operating license for the dam. 
The board shaH issue modification orders for the affected dams no later than 
December 31, 2009. 
SUMMARY 
This bill: 
. 1. Specifies that the Department of Environmental Protection may issue water quality 
certification for a dam used to generate hydroelectric power only if the dam provides safe 
and effective passage for all diadtomous fish indigenous to the body of water on which 
the dam is located; 
2. Provides that, for every day a safe and effective passage is not in effect, the owner 
of the dam may be fined not less than $1,000; 
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3. Authorizes the commencement of a civil action against any person, including any 
governmental instrumentality or agency, who is alleged to be in violation of the 
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requirement for dams to provide safe and effective passage for all diadromous fish and 
authorizes afine of up to $10,000' per day per violation; 
4. Expands the grounds for. which the Board of Environmental Protection may 
modify, revoke. or suspend a license to include that the licensed discharge or activity is 
causing a violation of the water quality classification system; 
5. Authorizes a person to petition the Board of Environmental Protection to modify, 
revoke or suspend a license; and 
6. Directs the Board of. Environmental Protection to modify the water quality 
certification of dams used to generate hydroelectric power in the State to condition water 
quality. certification on the agreement by the dam to provide safe and effective passage 
for all diadromous fish species indigenous to the' body of water on which the dam is 
located, and within the historic ranges of those fish species, and to submit a license 
amendment application to the Federal Energy·Regulatory Commission to incorporate that 
. condition into the federal operating license for the dam. 
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