E. Machias orders halt to weir Town officials say state needs local work permit

EAST MACHIAS – Construction of a $420,000 salmon weir on the East Machias River came to a halt Wednesday after the town’s code enforcement officer issued a cease-work order to the Maine Atlantic Salmon Commission.

The East Machias is one of eight Maine rivers where wild salmon are listed as an endangered species. The weir is being constructed with federal money to keep farm-raised salmon from entering the river and intermingling with the wild fish.

But East Machias selectmen met in emergency session Monday evening and voted to issue a cease-work order.

“You are hereby informed that you are in violation of the Town of East Machias Land Use Ordinance, in particular, the Shoreland Zoning Ordinance, and must cease the construction of the fish weir on the East Machias River until a proper permit has been granted by the proper authority,” wrote Code Enforcement Officer Richard A. Ellsmore.

Construction began in late May, and similar weirs have been constructed on the Pleasant River in Columbia Falls and the Dennys River in Dennysville without local permits. Those rivers are among the Maine rivers where the wild salmon is considered endangered.

But East Machias First Selectman Bucket Davis said the East Machias situation differs from that of Dennysville or Columbia Falls because East Machias has a state-approved comprehensive plan. Such approval requires the state to follow the town’s ordinances.

“Our ordinance requires a permit from the town planning board for any work in the shoreland zone,” Davis said. “The commission never applied for one.”

Davis said Wednesday that the situation could have been avoided: “You know, if they had just sat down and talked with us about this.”

Davis said the town sent the cease-work order by certified mail Wednesday morning to Fred Kircheis, executive director of the salmon commission.

Kircheis is away until Monday, but Norm Dube, a fisheries scientist for the Maine Atlantic Salmon Commission, said the contractor for the weir called him Wednesday morning, telling him the town was going to serve papers if the work crew turned up at the site.

“The Attorney General’s Office is researching this on our behalf and they are aware that local permits were not needed for the weirs in Dennysville and Columbia Falls,” Dube said. “If they decide we need a town permit, we’ll go forward with an application to the town planning board.”

Davis said the East Machias town attorney, Ron Mosley, and two lawyers from the Maine Municipal Association already have weighed in on the matter. Their interpretation of state law is that the state needs a local permit because East Machias had a state-approved comprehensive plan, he said.

On Wednesday, East Machias received further support for its position. Eric Gallant of the Washington County Council of Governments forwarded a message from Mary Ann Hayes, senior planner from the Maine State Planning Office.

“In towns with consistent comp plans, state agencies should go through the local shoreland zoning permitting process unless there is an apparent egregious departure from the comprehensive plan that is worth risking a court challenge over,” Hayes wrote.

Dube said he doesn’t understand why East Machias is insisting on a local permit for the weir project. He said the salmon commission was involved in two dam removal projects in East Machias last year: removal of the remnants of an old Bangor Hydro dam and the dam at Chase Mills.

“The town didn’t require local permits for that work,” Dube said. “I don’t understand this, particularly at this late date.”

Last fall, the salmon commission applied for a state Department of Environmental Protection permit for the project – and selectmen and neighboring landowners were informed of that application by certified mail.

The notice included instructions on how to request a public hearing on the project, but none of the parties requested a hearing, Dube said.

Davis told Kircheis during a meeting in East Machias two weeks ago that selectmen didn’t request a public hearing because they believed the project had to go to the planning board and that a public hearing could take place then.

Joan Trial, the salmon commission’s senior biologist, said that given construction timetables and that fact that in-river work couldn’t take place until after July 1, the commission didn’t expect the weir to be operational this summer.

In addition to keeping aquaculture fish out of the rivers, the weir allows biologists to count the number of wild salmon returning to spawn.

If construction is delayed, the commission may miss the fall spawning run as well as the spring run, she said.

And fall storms frequently result in aquaculture escapes, Dube said.