An Act To Modify Maine's Fishway Laws
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 further amended to read:
1. Commissioners' authority. In order to conserve, develop or restore anadromous or migratory 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 artificial 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 migratory fish.
3. Monitoring program. The commissioner 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 sole 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 artificial 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; or
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.
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 artificial obstruction, 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 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 50 10 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 artificial 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 that the 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 fully 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, lessee or person in control of the dam or artificial 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 department 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 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.
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 to 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.