An Act To Allow the Breach or Removal of Beaver Dams That Obstruct Passage of Anadromous or Migratory Fish
Maine Legislature, Session 127, LD 0802
Committee: Inland Fisheries and Wildlife
Sponsors: TUCKER, BAKER, PIERCE
Amends: 12 MRSA §12760

Legislative Document 
No. 802 
H.P. 551 
House of Representatives, March 10, 2015 
An Act To Allow the Breach or Removal of Beaver Dams That 
Obstruct Passage of Anadromous or Migratory Fish 
Reference to the Committee on Inland Fisheries and Wildlife suggested and ordered 
printed. 
ROBERT B. HUNT 
Clerk 
Presented by Representative TUCKER of Brunswick. 
Cosponsored by Senator BAKER of Sagadahoc and 
Representative: PIERCE of Dresden. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  12 MRSA §12760, as amended by PL 2011, c. 612, §1, is further amended 
to read: 
§12760.  Fishways in dams and other artificial obstructions and in beaver dams 
1.  Commissioners' authority.  In order to conserve, develop or restore anadromous 
or migratory fish resources, the commissioner and the Commissioner of Marine 
Resources jointly may require within inland waters frequented by alewives, shad, salmon, 
sturgeon or other anadromous or migratory fish species 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 or of property on which a 
beaver dam exists or by which a beaver dam may be accessed or may order such persons 
to remove a beaver dam. 
The commissioners may not require or authorize a fishway or fish bypass structure at a 
dam on the outlet of Sebec Lake in the Town of Sebec or at a dam on the Sebec River in 
the Town of Milo or at a dam on the outlet of Schoodic Lake in Lake View Plantation or 
at a dam on the outlet of Seboeis Lake in Township 4, Range 9 NWP that would allow 
the upstream passage of an invasive fish species known to be present downstream in the 
Piscataquis River or Penobscot River drainage. For the purposes of this section, “invasive 
fish species” means those invasive fish species identified in the action plan for managing 
invasive aquatic species developed pursuant to Title 38, section 1872. 
2.  Examination of dams.  The commissioner and the Commissioner of Marine 
Resources shall periodically examine all dams and other artificial obstructions to fish 
passage within the inland waters and may examine beaver dams in order to determine 
whether fishways are necessary, sufficient or suitable for the passage of anadromous or 
migratory fish. 
3.  Monitoring program.  The commissioner and the Commissioner of Marine 
Resources shall establish a program to ensure fishways are functioning properly and 
remain sufficient or suitable for the passage of anadromous or migratory fish.  The 
commissioners have sole authority to take corrective action at fishways as prescribed 
under this section. 
4.  Initiation of fishway proceedings.  The commissioner and the Commissioner of 
Marine Resources shall initiate proceedings to consider construction, repair or alteration 
of fishways in existing dams or other artificial obstructions or beaver dams or to consider 
the removal of a beaver dam whenever the commissioners determine that one or more of 
the following conditions may exist: 
A.  Fish passage at the dam, beaver 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; or 
B.  Fish passage at the dam, beaver dam or obstruction in issue is necessary to protect 
or enhance rare, threatened or endangered fish species. 
5.  Adjudicatory proceedings.  A beaver dam removal or fishway proceeding must 
conform to the following requirements. 
A.  A beaver dam removal or 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 artificial obstruction or of property on which a beaver dam 
exists or by which a beaver dam may be accessed, informing that person that a 
proceeding has been undertaken 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 and the 
Commissioner of Marine Resources shall, within 30 days, either notify the petitioners 
in writing of the commissioners' denial, stating the reasons for the denial, or schedule 
a public hearing.  The commissioners shall hold a public hearing whenever: 
(1)  The commissioners are petitioned by 50 or more residents of the State; or 
(2)  The owner, lessee or other person in control of the dam or artificial 
obstruction or of property on which a beaver dam exists or by which a beaver 
dam may be accessed requests a hearing. 
C.  The commissioner and the Commissioner of Marine Resources shall accept 
testimony from the owner, lessee or other person in control of the dam or artificial 
obstruction or of property on which a beaver dam exists or by which a beaver dam 
may be accessed on alternate fishway designs to those proposed by the 
commissioners for that dam or, artificial obstruction or beaver dam or on alternatives 
to the removal of a beaver dam. 
6.  Decision.  In the event that the commissioner and the Commissioner of Marine 
Resources decide that a fishway should be constructed, repaired, altered or maintained 
pursuant to this section or that a beaver dam should be removed, the commissioners shall 
issue final orders with specific plans and descriptions of the fishway construction, 
alteration, repair or maintenance requirements or of the removal of the beaver dam, the 
conditions of the use of the a fishway and the time and manner required for fishway 
operation.  The commissioners may issue a decision requiring the owners, lessees or other 
persons in control of the dam or obstruction or of property on which a beaver dam exists 
or by which a beaver dam may be accessed to construct, repair, alter or maintain a 
fishway or to remove a beaver dam.  Such a decision must be supported by a finding 
based on evidence submitted to the commissioners 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 the removal of a beaver dam or by 
construction, alteration, repair or maintenance of a fishway and habitat anywhere in 
the watershed above the dam, beaver 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 or the removal of 
a beaver dam is necessary to protect or enhance rare, threatened or endangered fish 
species. 
In With regard to a dam or other artificial obstruction, in the event that the commissioners 
decide that a fishway should not be constructed, the commissioners shall specify in that 
decision a period not to exceed 5 years subsequent to that decision during which a 
fishway may not be required to be constructed. 
7.  Compliance.  The owner, lessee or other person in control of a dam or other 
artificial obstruction or of property on which a beaver dam exists or by which a beaver 
dam may be accessed is jointly and severally liable for the costs of fishway design, 
construction, repair, alteration or maintenance, or of the removal of a beaver dam 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 or of property on which a beaver dam exists or by which a beaver dam 
may be accessed refuses to comply or does not fully comply with the decision issued 
pursuant to subsection 6, the commissioner and the Commissioner of Marine 
Resources shall initiate a civil action to enjoin the owner, lessee or person in control 
of the dam or of property on which a beaver dam exists or by which a beaver dam 
may be accessed to comply fully with the commissioners' order or to restrain the 
violation of an order.  In the proceeding, the court may not review the legality of the 
commissioners' order, except when the owner, lessee or person in control of the dam 
or artificial obstruction or of property on which a beaver dam exists or by which a 
beaver dam may be accessed 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 or of the property on which a beaver dam exists or by which a 
beaver dam may be accessed, in order to secure the costs of fishway construction, 
repair, alteration or maintenance or of removal of the beaver dam, the costs of the 
court-ordered sale and the costs incurred by the department for any fishway design.  
The purchaser of the dam or other obstruction or of the property on which a beaver 
dam exists or by which a beaver dam may be accessed is subject to the decision 
issued pursuant to subsection 6. 
8.  Privileged entry.  The commissioner and the Commissioner of Marine Resources, 
the 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 beaver 
dams and dams and beaver dams as provided in subsection 2.  The commissioners shall 
notify the landowner owner, lessee or other person in control of the dam or of the 
property on which a beaver dam exists or by which a beaver dam may be accessed when 
the examination will take place and the time required to complete the examination.  The 
commissioners 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. 
9.  Certain lakes, rivers and streams; fishways prohibited.  Notwithstanding any 
other provision of law to the contrary, the owners, lessors or other persons in control of a 
dam on the outlet of Sebec Lake in the Town of Sebec, of Schoodic Lake in Lake View 
Plantation or of Seboeis Lake or a dam on the Sebec River in the Town of Milo may not 
construct or authorize the construction of a fishway or fish bypass structure that would 
allow the upstream passage of an invasive fish species known to be present downstream 
in the Piscataquis River or Penobscot River drainage. 
A.  A person who violates this subsection commits a civil violation for which a fine 
of not less than $500 or more than $1,000 may be adjudged. 
B.  A person who violates this subsection after having been adjudicated as having 
committed 3 or more civil violations under this Part within the previous 5-year period 
commits a Class E crime. 
SUMMARY 
This bill gives the Commissioner of Inland Fisheries and Wildlife and the 
Commissioner of Marine Resources explicit authority to require fishways to be installed 
and maintained through beaver dams by the owners, lessees or other persons in control of 
the property on which a beaver dam exists or by which a beaver dam may be accessed or 
to require a beaver dam to be removed in order to conserve, develop or restore 
anadromous or migratory fish resources.