An Act Concerning the Establishment of Water Levels () Subrnitted by the Department of Environmental Protection pursuant to Joint Rule 204. ~-.-/
Maine Legislature, Session 124, LD 1577
Committee: Natural Resources
Sponsors: CLARK, CAMPBELL, FITTS, FLEMINGS, KNAPP, PERCY, GOODALL
Amends: 38 MRSA §341-D, 38 MRSA §840

MAINE STATE LEGISLATURE 
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124th MAl E LEGISLATURE 
Legislative Document 
No.1S77 
House of Representatives, December 22,2009 
An Act Concerning the Establishment of Water Levels 
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Subrnitted by the Department of Environmental Protection pursuant to Joint Rule 204. 
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Received by the Clerk of the House on December 18, 2009. Referred to the Committee on 
Natural Resources pursuant to Joint Rule 308.2 and ordered printed pursuant to Joint Rule 401. 
Presented by Representative CLARK of Millinocket. 
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MILLICENT M. MacFARLAND 
Clerk 
Cosponsored by Representatives: CAMPBELL of Newfield, FITTS of Pittsfield, FLEMINGS 
of Bar Harbor, KNAPP of Gorham, PERCY of Phippsburg, Senator: GOODALL of 
Sagadahoc. 
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Be it enacted by the People ofthe State of Maine as follows: 
Sec. 1. 38 MRSA §341-D, sub-§2, as amended by PL 2007, c. 661, Pt. B, §I, is 
further amended to read: 
2. 
Permit and license applications. 
Except as otherwise provided in this 
subsection, the board shall decide each application for approval of permits and licenses 
that in its judgment: 
II 
A. 
Involves a policy, rule or law that the board has not previously interpreted; 
B. 
Involves important policy questions that the board has not resolved; 
C. 
Involves important policy questions or interpretations of a rule or law that 
require reexamination; or 
0. 
Has generated substantial public interest. 
The board shall assume jurisdictio . over applications referred to it under section 344, 
subsection 2-A, when it finds that ti e criteria of this subsection have been met. 
The board may vote to assume jurisdiction of an application if it finds that one or more of 
the criteria in this subsection have been met. 
Any interested party may request the board to assume jurisdiction of an application . 
. The board may not assume jurisdiction over an application for an expedited wind energy 
development as defined in Title 35-A, section 3451, subsection 4 or for a certification 
pursuant to Title 35-A, section 3456. 
The board may not assume jurisdiction over a request or petition for the establishment of 
water levels pursuant to section 840. 
Sec. 2. 38 MRS A §344, sub-§2-A, II[A, as amended by PL 2007, c. 661, Pt. B, 
. §5, is further amended to read: 
A. Except as otherwise provided in this paragraph, the commissioner shall decide as 
expeditiously as possible if an application meets one or more of the criteria set forth 
in section 341-0, subsection 2 and shall request that the board assume jurisdiction of 
that application. If at any subsequent time during the review of an application the 
commissioner decides that the application falls under section 341-0, subsection 2, the 
commissioner shall request that the board assume jurisdiction of the application. 
(1) The commissioner may not request the board to assume jurisdiction of an 
application for any permit or other approval required for an expedited wind 
energy development, as defined in Title 35-A, section 3451, subsection 4, or a 
certification pursuant to Title 35-A, section 3456. 
Except as provided in 
subparagraph (2), the commissioner shall issue a decision on an application for 
an expedited wind energy development within 185 days of the date on which the 
department accepts the application as complete pursuant to this section or within 
days of the department's acceptance of the application if the commissioner 
holds a hearing on the application pursuant to section 345-A, subsection I-A. 
Page I - 124LR2266(OI)-1 
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(2) 
The expedited review periods of 185 days and 270 days specified in 
subparagraph (1) do not apply to the associated facilities, as defined in Title 
35-A, section 3451, subsection 1, of the development if the commissioner 
determines that an expedited review time is unreasonable due to the size, 
location, potential impacts, multiple agency jurisdiction or complexity of that 
portion of the development. If an expedited review period does not apply, a 
review period specified pursuant to section 344-B applies. 
(3) The commissioner may not request the board to assume jurisdiction of a 
request or petition for the establishment of water levels pursuant to section 840. 
The commissioner may stop the processing time with the consent of the applicant for 
a period of time agreeable to the commissioner and the applicant. 
Sec. 3. 38 MRSA §840, sub-§l, as amended by PL 1999, c. 243, §20, is further 
amended to read: 
1. Power. The commissioner may on the commissioner's own motion and shall, at 
the request of the owner, lessee or person in control of a dam, the Commissioner of 
Inland Fisheries and Wildlife or the Commissioner of Marine Resources, or upon receipt 
of petitions from the lesser of at least 25% or 50 of the littoral or riparian proprietors or 
from a water utility having the right to withdraw water from the body of water for which 
the water level regime is sought, conduct an adjudicatory hearing hold a public meeting 
pursuant to section 345-A, subsection 5 for the purpose of establishing a water level 
regime and, if applicable, minimum flow requirements for the body of water impounded 
by any dam that is not: 
A. Operating with a license or exemption issued by the Federal Energy Regulatory 
Commission or detennined by the Federal Energy Regulatory Commission to be 
subject to the jurisdiction of that commission; 
D. Operating with a permit setting water levels issued under the protection of natural 
resources Im:",s, sections 480 A to 480 S Natural Resources Protection Act; the site 
location of development laws, sections 481 to 490; the small hydroelectric generating 
facilities laViS, sections 631 to 636 Maine Waterway Development and Conservation 
Act; the land use regulation laws, Title 12, sections 681 to 689; or any other statute 
regulating the construction or operation of dams; 
E. 
A dam regulated by one or more municipalities by ordinance or interlocal 
agreement pursuant to Title 30-A, chapter 187, subchapter ¥I 2.; or 
F. Regulated by the International Joint Commission. 
Notwithstanding the provisions of this subsection, after an order establishing a water 
level regime or minimum flow requirement has been issued pursuant to this section or 
former Title 12, section 304, the commissioner is not required to hold a hearing public 
meeting pursuant to section 345-A, subsection 5 to establish a new water level regime or 
minimum flow requirement for the same body of water in response to a petition from 
littoral or riparian proprietors unless the commissioner determines that there has been a 
substantial change in conditions or other circumstances materially affecting the impact of 
water levels and minimum flows on the public and private resources identified in 
subsection 4 since the order was issued. 
The commissioner may dismiss without prejudice any petition from littoral or riparian 
proprietors that does not contain evidence of mediation or other substantial good faith 
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efforts to resolve any disputes regarding current water level management practices or 
minimum flow requirements for a body of water impounded by a dam with the owner, 
lessee or person in control of the dam. 
The commissioner may dismiss without prejudice any petition from littoral or riparian 
proprietors that is not supported by substantial evidence that current water level 
management practices or, if applicable, minimum flow requirements for a body of water 
impounded by a dam are materially affecting one or more of the resources, interests or 
goals listed in subsection 4. 
Sec. 4. 38 MRSA §840, slllb-§2, as affected by PL 1989, c. 890, Pt. A, §40 and 
amended by Pt. B, § 198, is further a .1ended to read: 
2. Notice. The commissioner shall provide written notice of any hearing public 
meeting held pursuant to this section to the owner, lessee or person in control, if known, 
of any dam on the body of water and to any petitioner who has petitioned for a hearing 
public meeting with respect to the body of water. The commissioner shall give J*tl:*ie 
notice to the public of the hearing under Title 5, section 9052 public meeting by 
publication at least twice in a newspaper of general circulation in the area of the State' 
affected and shall also file notice of the hearing public meeting in the municipal office of 
any municipality and in the clerk's office of any county in which the body of water is 
located. 
Sec. 5. 38 MRS A §840, sub-§3, as enacted by PL 1983, c. 417, §6, is amended to 
read: 
3. Conduct of public meeting. The hearing public meeting held pursuant to this 
section shall follow the procedures for an adjudicatory hearing under Title 5, chapter 375, 
subchapter IV and the procedures specified in section 345-A, subsection 5 and in this 
section. 
Sec. 6. 38 MRS A §840, sub-§4, as amended by PL 1989, c. 323, §2 and affected 
by c. 890, Pt. A, §40 and amended by Pt. B, § 199, is further amended to read: 
4. 
Evidence. 
At the hearing public meeting held pursuant to this section, the 
commissioner shall solicit and receive testimony, as provided by Title 5, section 9057, 
receive comments for the purpose of establishing a water level regime and, if applicable, 
minimum flow requirements for the body of water. The testimony is limited to: 
A. The water levels necessary to maintain the public rights of access to and use of 
the water for navigation, fishing, fowling, recreation and other lawful public uses; 
B. 
The water levels necessary to protect the safety of the littoral or riparian 
proprietors and the public; 
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C. The water levels and minimum flow requirements necessary for the maintenance 
of fish and wildlife habitat and water quality; 
D. The water levels necessary to prevent the excessive erosion of shorelines; 
E. The water levels necessary to accommodate precipitation and run off runoff of 
waters; 
F. The water levels necessary to maintain public and private water supplies; 
G. The water levels and flows necessary for any ongoing use of the dam to generate 
or to enhance the downstream generation of hydroelectric or hydromechanical power; 
and 
H. The water levels necessary to provide flows from any dam on the body of water 
to maintain public access and use, fish propagation and fish passage facilities, fish 
and wildlife habitat and water quality downstream of the body of water. 
Sec. 7. 38 MRSA §840, sub-§5, as amended by PL 1989, c. 323, §3 and affected 
by c. 890, Pt. A, §40 and amended by Pt. B, §200, is further amended to read: 
5. Order. Based on the evidence solicited at the hearing comments received at the 
public meeting held pursuant to this section, written comments received from state 
resource agencies and members of the public and other related information on file, the 
commissioner shall make written findings and issue an order to the owner, lessee or 
person in control of the dam establishing a water level regime for the body of water 
impounded by the dam and, if applicable, minimum flow requirements for the dam. The 
order must, insofar as practical, require the maintenance of a stable water level, but must 
include provision for variations in water level to permit sufficient drawdown of the body 
of water to accommodate precipitation and runoff of surface waters, minimum flow 
requirements and to otherwise permit seasonal and other necessary fluctuations in the 
water level of the body of water in order to protect public health, safety and welfare and 
the public and private resources identified in subsection 4. The commissioner shall 
deliver a copy of the order to the owner, lessee or person in control of the dam, the 
municipal officers of any municipality in which the dam or the body of water it impounds 
is located and each petitioner, if any, and shall file a copy of the order in the registry of 
deeds in the county where the dam is located. 
Sec. 8. Application. This Act applies to a request or petition for the establishment 
of water levels pursuant to the Maine Revised Statutes, Title 38, section 840 pending as 
of the effective date of this Act or received by the Department of Environmental 
Protection after the effective date of this Act. 
SUMMARY 
This bill amends the water level laws in the Maine Revised Statutes, Title 38 to 
replace the requirement for an adjudicatory hearing by the Commissioner of 
Environmental Protection or the Board of Environmental Protection on a request or 
petition for a water level regime or, if applicable, a minimum flow requirement, with a 
requirement for a public meeting by the commissioner. This bill also amends the water 
level laws to authorize the commissioner to dismiss without prejudice any petition that 
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does not contain evidence of mediation or other substantial good faith efforts to resolve 
any disputes regarding current water level management practices or minimum flow 
requirements for a body of water impounded by a dam with the owner, lessee or person in 
control of the dam. 
The bill further amends the water level laws to authorize the 
commissioner to dismiss without prejudice any petition that is not supported by 
substantial evidence that current water level management practices or minimum flow 
requirements are materially affecting the resources, interests or goals specified in Title 
38, section 840, subsection 4. 
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