Reconstruction of a dam by camp owner's association at the mouth of Pleasant Pond in Alexander

MAINE STATE LEGISLATURE The following document is provided by the LAW AND LEGISLATIVE DIGITAL LIBRARY at the Maine State Law and Legislative Reference Library http://legislature.maine.gov/lawlib Reproduced from scanned originals with text recognition applied (searchable text may contain some errors and/or omissions) RICHARD S. COHEN ATTORNEY GENERAL STEPHEN L. UIAMONLJ JOHN S. GLEASON JOHN M. R. PATERSON ROBERT J. STOl,T t 7-llf DEPUTY ATTORNEYS GENERAL S1·ATE OP MAINE D1.WAH.'l'Ml.!:N'J.' 01" '!'HI!: A'1v1•0H.Nl.!:Y Gl.!:NJ.m.AL AUGUSTA, MAINE 04333 June 8, 1979 Honorable Harold L. Silverman Maine Senate State House Augusta, Maine 04333 Dear Senator Silverman: This is in response to your inquiry on hehalf of a camp owner's association which wishes to reconstruct a dam at the mouth of Pleasant Pond in Alexander, Maine. You have asked us to determine who owns rights to the·watexs in the pond. For the reasons explained below, ·we. take th.is question to be one of whether there is any legislative action which is required to permit the project to proceed. Our answer is that no legislative action is needed, but that any ·person intending to construct a dam may have to comply with a number of regulatory and other statutes regardi~g dams. We understand Pleasant Pond to be greater than ten acres in size in its natural state, and therefore a "great pond" as that term is understood in Maine, Flood v. Earle, 145 Me. 24 (1950). In general, the common law rule with regard to such bodies of water in Maine is that the bottom and:waters thereon are owned by the State and may be disposed of "as it thinks proper." Cit of Auburn v. Union Water Power Co~, 90 Me. 576, 587 (1897 • Thus, if the proposed proJect were to involve the removal of water from Pleasant Pond, legislative approval would be required. Similarly, if the project were to impinge upon the bottom of the great pond, a lease would have to be. obtained from the Bureau of Public Lands, which has been delegated the authority to issue such interests in land by the Legislature. 12 M.R.S.A. § 554; 30 M.R.S.A. § 4162. We suspect, however, that the proposed construction project will not take place in the pond itself, but rather on whatever stream serves as its outlet. If that is the Page 2 case, no problem arises as to the use of the stream·bottom, assuming it is under the. control of the camp owner's association. There may, however, be legal impediments · attendant upon the. obstruction of the water· at ·the point in question .• · At one time it was the case in Maine that affirmative legislative approval was required to da1u a body of wate.r if such a da111 would constitute an obstruction to the ·;e:ublic r;Lght of pass~ge. See, e.g., Mullen v. Penobscot Log Driving Co., 90 Me. 555 (1897); Treat~Lord, 42 Me. 552 (i856). That, however, no longer seems to be the case. As indicated in the opinion of December?, 1977, of Stanley Greenberg of this office to ·Herbert'Hartman, Director of the Bureau of Parks and Recreation· ·(attached hereto), "the Legislature has enacted statutes which ·appear·to delegate its power to authorize. such obstructions to administrative agencies." Moreover, this delegation·is not restricted to dams on·navigable streams; obstruction on any stream·may· now be. subject to regu- l.:1:1;:.ionE;. A list of the kind of notices and permits which might be required of a dam project is included in the attached opinion. However, the identification of which notices. or permits are required for·the Pleasant Pond project is•beyond the scope of this opinion; we would suggest that the cc.imp owner's association confer with private counsel with r~gard ·:to ·'this question. In addition, it should be noted that there is a general common law rule that a riparian owner· may only construct a dam in a manner not. incon.si.stent with th~ ,;;erivate rights of other ri,parian owners.·· Jone·s v. Skinner, 61' Me. 25·~ 26 (1873). In Maine, this rule has been·varied somewhat ·by the Mill Act, 38 M.R.S.A. § 611, et seq., ·which permits such construction on a stream upon the payment· of damages. Again, ·however, it is beyond the scope of this opinion· to apply these·rules to the Pleasant Pond situation. We would suggest that private counsel be retained to address these questions, aswel'l as those relating to the giving of no~ice and the obtain•i~g of permits. In short, therefore, it appears that there is no action whi.ch the Legislature needs to take in order to permit the reconstruction of the Pleasant Pond dam, assuming that such construction will not occur in the pond ·itself. The camp owner's association may·avoid violating any public rights in the water by complying with such regulatory·statutes as may apply, and may avoid.violating any.'private rights by comply- ing with the Mill Acts. . I hope. this information is Jie.+pful. contact me if I can be of furtfer ervice .• RSC/ec Enclosure Attorney General STATE OF MAINE Inter-Departmental Memorandum Dace December 7, 1977 Herbert Hartman, Director D Bureau of Parks & Recreation ept. ________________ _ Fr'"'.-ri Stanley Greenberg, Assistant Depc. ____ A_t_t_o_r_n_e_y __ G_e_n_e_r_a_l ____ _ Su.bje:ct I Approval Reguirements for Proposed Great Northern Paper Company Hydroelectric Dam · You have inquired whether the Great Northern Paper company must obtain Legislative Approval prior to construction of its proposed hydroelectric dam between Ripogenus Gorge and Sourdna- hunk J?alls on the West Branch of the Penobscot River. While such Legislative approval was formerly required for any obstruction of the public right of passage on floatable streams for fish, boats and logs, the Legislature has recently delegated its authority to permit such obstructions to adminis- trative agencies. Presently, Great Northern Paper Comapny, like any other riparian owner on this type of river, may construct a hydroelectric dam provided that permits from all appropriate.~tate and federal regulatory agencies are obtained. · * * * A general description of a riparian owner's rights was given in Central Maine Power company v. Public Utilities commission, 156 Me.295, 327 (1960): Riparian ownership extends to the thread of the stream and includes a right to the natural flow of the river with the reasonable and private us·e of it subject only to the public right of passage for fish and for boats and logs when the stream is naturally of sufficient size to float boats or logs. The riparian proprietor may use the power for manufacturing and industrial purposes if the water is not thereby unreasonably detained or essentially diminished •••• The proprietor may not unlawfully or unreasonably divert the water. At common law, a riparian owner may erect a dam where the waters raised flow only onto lands owned by him. Jones v. Skinner, 61 Me. 25, 26 (1873). Where the flowed lands belong to others, the riparian owner may construct his dam pursuant to the Mill Act, 38 M.R.S.A. §611 et~. (1965). As the court noted in Central Maine Power Co. v. Public Utilities Commission, supra, a riparian owner's rights to the reasonable use of a floatable stream are subject to the public right of passage for fish, boats, and logs. Formerly, Legislative approval was required if a riparian owner sought to obstruct one of these rights. See, e.g., Mullen v. Penobsc<?.!:_ .. Lq_q_Q:;:_i ving Co., 90 Me. 555 (1897) ; Treat v. Lord, 42 Me. 552 ~ J-{,/ (1856) However, the Legislature has enacted statutes which appear to delegate its power to authorize such obstructions to administrative agencies. For instance, the Commissioner of Inland , ( -2- Fish and Wildlife, pursuant to 12 M.R.S.A. §2201 (1974), may require fishways to be provided by owners of dams as he deems expedient. He may also, pursuant to the Stream Alteration Law, 12 M.R.S.A. §2206 et~-, §2207 (Supp. 1976), permit the erection of a darn if the- 11 ••• proposed activity will not unreasonably interfere with existing recreational and navigational uses ••• 11 l!:ve l1 if a riparian owner I s dam ucros~ a float.:i.blo st:co;;.tm Wt1re not to obstruct any public right of passage, by the provision of a fishway or a sluiceway or passageway by or through the dam, he would still be required to file notice with and obtain permits from several state and federal regulatory agencies. 'l1ha following list of notices and permits is intended to be illustrative only and should not be relied upon as complete. A. In townships and plantations where the Land Use Regulation commission has jurisdiction, a landowner is required to obtain a development permit from LURC. Where the Interim Land Use Districts are in.effect for the region concerned, a use such as a hydroelectric dam is·not a permitted use within the P-3 and P-9 Subdistricts. Where Permanent Land Use Districts are effective, water impoundment is a•pe:rmitted use within the analogous Shoreland Protection and Wetland Protection Subdistricts. In any event, a landowner may petition·LURC, pursuant to 12 M.R.S.A. §685-A(S) (Supp.1976), for a change in the boundary of a land use district, for instance, from a Protection Subdistrict to an Interim Development District or a.Permanent Commercial and Industrial Development Subdistrict. If such a petition were granted, the landowner would then be in a position to request the appropriate development permits. Similar roquirements exist as to any proposed accessory structures to the dam, such as out-buildings and transmission facilities. B. Whe~e the toal project of a proposed dam, including its accessory structures exceeds three acres, a Site Location Pe-rmit is required from the Board of Environmental Protection, pursuant to 38 M.R.S.A. §481 ~ ~- (Supp. 1976). c. (1) Notice of .the building of a dam must be given to the Commissioner of Inland Fish and Wildlife pursuant to 12 M.R.S.A. §2203 (1974). (2) As discussed ·above, a permit must be obtained from the Commissioner of Inland Fish and Wildlife under the Stream Alter- ation Law, 12 M.R.S.A. §2206 et~- (Supp. 1976). D. If any of the transmission facilities from the proposed dam are to run alongside of any public way, a permit must be obtained from either the State Highway Commission or the county commissioners, as appropriate. 35 M.R.S.A. §2482 et §.fill. {Supp .. 1973). E. (l) Plans for. the proposed dam must be filed with the Public Utilities Commissioner pursuant to 35 M.R.S.A. §ll (1965). -3- (2) Unless the electricity to be generated by the dam is to be solely for use by the landowner and not for sale to others, a certificate of public convenience and necessity is required for .the facilities from the Public Utilities commission. 35 M.R.S.A •. §13-A (Supp. 1973). F. Pursuant to 33 u.s.c.A. §l341(a) (i) (Supp. 1977), the Dopartment o:C Bnvironmentul p·rol:acl:ion must cortify to tho appropriate federal agencies that the proposed project complies with the point source effluent limitations of the Federal Water Control Act Amendments of 1972. G. Subject to (F), a Dredge and Fill permit must be obtained from the Secretary of the Army, pursuant to 33 u.s.c.A. §l344(a) (Supp. 1977). This approval is subject to a disposal site veto by the Administrator of the Environmental Protection Agency, pursuant to 33 u.s.c.A. §l344(c) (Supp. 1977). I-I. The landowner must also obtain a license for the constrqction of the proposed dam from the Federal Energy Regulatory Commission, .successor to the Federal Power Commission in this area. 16 u.s.c.A. §817 (1974)1 P.L. 95-91 §402(a) (l) (A) ( 91 Stat. 565) (1977) • As a. final note, the Charter of the West Branch Driving and Reservoir Dam Company, as enacted by the Legislature in 1903, does not exempt Great Northern Paper co. from any of the foregoing permit requirements ... See Private and Special Laws 1903, c.174 .. since the time this company was organized for log-driving purposes, it has transferred all its rights and obligations to Great Northern Paper co. Under Section 13 of its Charter, WBD & RDC was authorized ••• to erect and maintain a dam across the West branch of Penobscot river in the vicinity of Sourdnahunc falls, and another dam across said West branch in the vicinity of Ambijejus falls for the purpose of facilitating the driving of logs and lumber ••• (emphasis supplied) / Because these dams were limited to the purpose of facilitating log drives, their Legislative authorization does not exempt Great Northern Paper Co. today from obtaining all required state permits for its proposed hydroelectric dam.