Last week, the Maine Department of Marine Resources closed the public comment period for a rulemaking that amends the state’s comprehensive plan for the management of the Kennebec River. Having done so, nothing now stands in the way of the department following through on their promise to submit this amendment to the federal government.
This is a critical development because the new amendment recommends the removal of two dams on the Kennebec River and the consideration of removing two others.
When I raised this very serious concern with Marine Resources Commissioner Patrick Keliher two weeks ago, he assured me that the rulemaking was of no great concern as it merely altered an insignificant “guidance document.” To verify this, I contacted the Federal Energy Regulatory Commission, or FERC, which licenses and regulates dams in the U.S.
In response to my inquiry, FERC staff cited the relevant federal law in the form of the Federal Powers Act, Section 10(a). Specifically, “(2) In order to ensure that the project adopted will be best adapted to the comprehensive plan described in paragraph (1), the Commission shall consider each of the following: (A) The extent to which the project is consistent with a comprehensive plan.”
The document that is the subject of the state rulemaking contains this sentence, “The MDMR will submit this document to the Federal Energy Regulatory Commission (FERC) as a Comprehensive Management Plan Amendment.”
The chain of logic here is not hard to follow. The Department of Marine Resources intends to amend the comprehensive plan on file with FERC to include the recommendation that two dams be removed, and two others be considered for removal. This action binds FERC in law to make licensing decisions that are consistent with this recommendation. There is no gray area here.
In his response to our letter, Commissioner Keliher did not address the federal law or the comments by FERC staff, but instead wrote: “The implementation of this plan by other state and federal regulators is at their discretion.” This is simply not true under federal law, however, which requires FERC to consider “the extent to which the project is consistent with a comprehensive plan.” FERC has no discretion in this matter.
By completing this rulemaking and submitting the amendment to the federal government, the state will soon add to the plan their recommendation to remove at least two dams. FERC has no choice or discretion under federal law but to act accordingly in future licensing decisions. One of the dams in question is currently in a relicensing process, making the impact of this rulemaking immediate.
Keliher further wrote, “the Administration is interested in working with you and municipal officials within your districts to address your concerns about the potential implications of the management plan.”
However, having accomplished the goal of changing the legally binding management plan to call for the removal of the dams, the results of any future discussions that do not eliminate this new recommendation will have no legal impact on future FERC licensing decisions.
While seriously downplaying the impact of these action and making misleading statements to the public that do not comport with clearly worded federal law, the Mills administration has taken a critical step toward removing these dams through the relicensing process.
Misleading and misinforming the public is not the way state government should act toward its citizens. Slipping decisive language into critical plans under the guise of insignificant rulemaking is neither appropriately nor honestly addressing an important issue.
Scott Cyrway of Albion, a Republican, is serving his fourth term in Maine Senate.
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