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An Act Concerning the Establishment of Water Levels
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 38 MRSA §341-D, sub-§2, as amended by PL 2007, c. 661, Pt. B, §1, 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:
 
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
 
D.  Has generated substantial public interest.
 
The board shall assume jurisdiction over applications referred to it under section 344, subsection 2-A, when it finds that the 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 MRSA §344, sub-§2-A, ¶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 341D, 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 341D, 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 35A, section 3451, subsection 4, or a certification pursuant to Title 35A, 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 270 days of the department's acceptance of the application if the commissioner holds a hearing on the application pursuant to section 345A, subsection 1A.
 
(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 35A, 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 344B 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-§1, 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 hearinghold a public meeting pursuant to section 345A, 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 determined 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 laws, sections 480-A to 480-SNatural Resources Protection Act; the site location of development laws, sections 481 to 490; the small hydroelectric generating facilities laws, sections 631 to 636Maine 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 VI6; 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 hearingpublic meeting pursuant to section 345A, 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 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, sub-§2, as affected by PL 1989, c. 890, Pt. A, §40 and amended by Pt. B, §198, is further amended to read:
 
2. Notice. The commissioner shall provide written notice of any hearingpublic 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 hearingpublic meeting with respect to the body of water. The commissioner shall give public notice to the public of the hearing under Title 5, section 9052public 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 hearingpublic 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 MRSA §840, sub-§3, as enacted by PL 1983, c. 417, §6, is amended to read:
 
3. Conduct of public meeting. The hearingpublic 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 345A, subsection 5 and in this section.
Sec. 6. 38 MRSA §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 hearingpublic 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;
 
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 offrunoff 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 hearingcomments 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 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.