An Act To Modify Maine's Fishway Laws . Reference to the Committee on Inland Fisheries and Wildlife suggested and Ol~dered printed.
Maine Legislature, Session 124, LD 1237
Committee: Inland Fisheries and Wildlife
Sponsors: DAMON, WHEELER, EATON, EBERLE, PERCY
Amends: 12 MRSA §12760

MAINE STATE LEGISLATURE 
The following document is provided by the 
LAW AND LEGISLATIVE DIGITAL LIBRARY 
at the Maine State Law and Legislative Reference Library 
http://legislature.maine.gov/lawlib 
Reproduced from scanned originals with text recognition applied 
(searchable text may contain some errors and/or omissions) 
n 
(i 
,J 
S3.~I~ c '~:"-"'1i'iY 
d'Ul;iU,: ..... , ff ·~l 
l' '; 'I ill (,_. 
- u, t, fV1/~'ilII-J~:: 
124th MAl EL GISLATURE 
Legislative Document . 
No. 1237 
S.P.456 
In Senate, March 31,2009 
An Act To Modify Maine's Fishway Laws 
. Reference to the Committee on Inland Fisheries and Wildlife suggested and Ol~dered 
printed. 
Presented by Senator DAMON of Hancock. 
Cosponsored by Representative WHEELER of Kittery and 
9t9(J~' 
JOY 1. O'BRIEN 
Secretary of the Senate 
Representatives: EATON of Sullivan, EBERLE of South Portland, MacDONALD of 
Boothbay, McKANE of Newcastle, PERCY of Phippsburg. 
Printed on recycled pnpcr 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 12 MRSA §12760, as amended by PL 2003, c. 655, Pt. B, §304 and 
affected by §422, is fmiher amended to read: 
§12760. Fishways in dams and other artificial obstructions 
1. Commissioners' authority. In order to conserve,. develop or restore anadromous 
·6 
or migratOlY fish resources, the Commissioner of Marine Resources or the commissioner 
may require a fishway' to be erected, maintained, repaired or altered ,by the owners, 
lessors or other persons in control of any dam or other artificial obstruction within inland 
waters frequented by alewives, shad, salmon, sturgeon or other anadromous or migratory 
fish species. 
2. Examination of dams. The commissioner in consultation with the Commissioner 
of Marine Resources shall periodically examine all dams and other aliificial obstructions 
to fish passage within the inland waters in order to determine whether fishways are· 
necessary, sufficient or suitable for the passage of anadromous or"lnigratory fish. 
3. 
Monitoring program. 
The COlnlnlsslOner shall, in cooperation with the 
Department of Marine Resources and the Atlantic Salmon Commission, establish a 
program to ensure fishways are functioning properly and remain sufficient or suitable for 
the passage of anadromous or migratory fish. The Commissioner of Marine Resources or 
the commissioner has sale authority to may take !corrective action at fishways as' 
prescribed under this section. 
4. Initiation of fishway proceedings. The Commissioner of Marine Resources in 
consultation with the commissioner shall initiate proceedings a fishway proceeding to 
consider the construction, repair or alteration of fishways· in existing dams or other 
artificial obstructions whenever petitioned by 10 or more citizens of this State. The· 
Commissioner of Marine Resources and the commissioner may also independently 
initiate a fishway proceeding. 
The Commissioner of Marine Resources and the 
commissioner determines that shall order the construction, repair or alteration of fishways 
in existing dams or other artifidal obstructions whenever one or more of the following 
conditions may exist: 
A: Fish passage at the dam or obstruction in issue, whether alone or in conjunction 
with fish passage at other upriver barriers, will improve access to sufficient and 
suitable habitat anywhere in the watershed to support a substantial commercial or 
recreational fishery for one or more species of anadromous or migratory fish; e-r 
B. Fish passage at the dam or obstruction in issue is necessary to will protect or 
enhance any rare, threatened or endangered fish. species~" including any fish .species 
listed under the federal Endangered Species Act of 1973, Public Law 93-205, as 
amended; or 
C. Fish passage at the dam or obstruction in issue is necessary to allow the water 
body to be in attainment of its water classification and water quality standards as set 
forth in Title 38, chapter 3, subchapter 1, article 4-A. 
) 
) 
) 
n 
( 
) 
/ 
32. 
L 
Any decision by the Commissioner of Marine Resources and the commissioner to require 
or not to require construction, repair or alteration of fishways must be accompanied by 
. written findings of fact. This decision must be considered a final agency action and may 
be appealed by an aggrieved person to the Superior Court. 
5. Adjudicatory proceedings.:. A fishway proceeding must conform to the following 
requirements. 
A. A fishway proceeding must be an adjudicatory proceeding under Title 5, chapter 
375, subchapter 4, but a hearing is not required unless requested in accordance with 
paragraph B. Notice of the proceeding must be given in accordance with Title 5, 
section 9052 and the following requirements: 
(1) Personal notice must be given to the dam owner, lessee or other person in 
control of the dam or artificiai obstruction, informing that person .that a 
proceeding has been undel1aken and informing that person of that person's right 
to request a hearing; and 
. 
(2) . Notice to the public, in newspapers of general circulation in the areas 
affected, must be given notifying the public of the initiation· of the proceedings 
and of the public's opportunity to request a hearing. 
B. 
If any interested person requests a public hearing, the commissioner in 
consultation with the Commissioner of Marine Resources shall, within 30 days, either 
notify the petitioners .in writing of the commissioner's denial, stating the reasons for 
the denial, or schedule a public hearing. The Commissioner of Marine Resources and 
the commissioner shall hold a public hearing whenever: 
(1) The Commissioner of Marine Resources or the commissioner is petitioned by 
~ 
lQ or more residents of the State; or 
(2) 
The owner, lessee or other person in control of the dam or artificial 
obstruction requests a hearing. 
C. 
The Commissioner of Marine Resources and the commissioner shall accept 
testimony from the owner, lessee or other person .in control of the dam or artificial 
obstruction on alternate fishway designs to those proposed by the commissioner for 
that dam or aJ1ificiai obstruction. 
·6. 
Decision. 
In the event that the Commissioner of Marine Resources or the 
commissioner decides that a fishway should be constructed, repaired, altered or 
maintained pursuant to this section, the Commissioner of Marine Resources or the 
commissioner shall issue final orders with specific plans and descriptions of the fishway 
construction, alteration, repair or maintenance requirements, the conditions of the use of 
the fishway and the time and manner required for fishway operation. The Commissioner 
of Marine Resources or the commissioner may issue a decision requiring the owners, 
lessees or other persons in control of the dam or obstruction to construct, repair, alter or 
maintain a fishway. Such a decision must be supported by a finding based on evidence 
submitted .to the Commissioner of Marine Resources or the commissioner that either of 
the following conditions exist: 
A.· 
One or more species of anadromous or migratory fish can. be restored in 
substantial numbers to the watershed by construction, alteration, repair or 
maintenance of a fishway and habitat anywhere in the watershed above the dam or 
.obstruction is sufficient and suitable to support a substantial commercial or 
recreational fishery for one or more species of anadromous or migratory fish; or 
B. 
The construction, alteration, repair or maintenance of a fishway is necessary to 
protect or enhance rare, threatened or endangered fish species. 
In the event thaUhe Commissioner of Marine Resources or the commissioner decides that 
no fishway should be constructed, the Commissioner of Marine Resources or the 
commissioner shall specifY in that decision a period not to exceed 5 years subsequent to 
that decision during which no fishway may be required to be constructed. 
7. Compliance. The owner, lessee or other person in control of a dam or other 
artificial obstruction is jointly and severally liable for the costs of fishway design, 
construction, repair, alteration or maintenance, and for full compliance with a decision 
issued pursuant to subsection 6. 
A. 
If the owner, lessee or other person in. control of a dam or other artificial 
obstruction refuses to comply or does not ftilly comply with the Commissioner of 
Marine Resources' or the commissioner's decision issued pursuant to subsection 6, the 
Commissioner of Marine Resources or the commissioner shall initiate a civil action 
to enjoin the owner, lessee or person in control of the dam to comply fully with the 
Commissioner of Marine Resources' or the commissioner's order or to restrain the 
violation of an order. In the proceeding, the court may not review the legality of the 
Commissioner of Marine Resources' or the commissioner's order, except when the 
owner, le~see or person in control of the dam or a11ificial obstruction has brought a 
timely petition for judicial review pursuant to Title 5, chapter 375, subchapter 7. 
B. The court may render judgment against and order the sale of the dam or other 
artificial obstruction, the land on which it stands and a right-of~way to the dam or 
artificial obstruction, in order to secure the costs of fishway construction, repair, 
alteration. or maintenance, the costs of the court-ordered sale and the costs incurred 
by the depaJ1ment for fishway design. The purchaser of the dam or other obstruction 
is subject to the Commissioner of Marine Resources' or the commissioner's decision 
issued pursuant to subsection 6. 
8. Privileged entry. The Commissioner of Marine Resources or the commissioner, 
or either of the commissioner's commissioners' agents or subcontractors may enter upon 
any private land in order to examine, at least annually, fishways in dams or other artificial 
obstructions and dams as provided in subsection 2. 
The Commissioner of Marine 
Resources or the commissioner shall notifY the landowner, lessee or other person in 
. 38 
control of the dam when the examination will take place and the time required to 
complete the examination. The Commissioner of Marine Resources or the commissioner 
shall make every effort to preserve private land and shall restore surrounding lands to the 
grade and condition existing prior to entry, if economically feasible. 
) 
) 
) 
n 
(-) 
I 
I; 
I u 
SUMMARY 
This bill includes the. Commissioner of Marine Resources with the Commissioner of 
Inland Fisheries and Wildlife in the laws governing fishways in dams, including a 
decision whether t6 initiate a fishway proceeding to consider the construction, repair or. 
alteration of fishways in existing dams or other artificial obstructions and in a decision as 
to what action, if any, to order as a result of such a proceeding. The bill also allows 10 or 
more citizens of this State to petition the commissioners to initiate a fishway proceeding 
and sets forth conditions whereby the commissioners must order action as the result of a 
fishway proceeding.