Negotiated mitigations for Allagash

Despite multiple law breakings by Maine’s Department of Conservation on the federally protected Allagash Wilderness Waterway, the National Park Service has levied but a modest mandate. NPS did not order DOC to yank its $1.4 million industrial-style, concrete-and-steel Churchill Dam, illegally built in 1998 without a federal permit or a valid LURC permit and operated illegally since then. Instead, NPS asked the agency merely to negotiate and to develop, over six months, an acceptable Allagash mitigation plan, to compensate for the dam’s “adverse effect.”

Most conservationists support keeping the dam in exchange for DOC mitigations along the river. But true to its unvarying repudiations of the Wild and Scenic Rivers Act, the DOC leadership is trying to shimmy out of NPS’ light sentence.

An Aug. 1 letter to the Legislature’s Agriculture, Conservation and Forestry Committee from the DOC commissioner states, “To be frank, we do not agree with the Park Service’s determination that the Churchill Dam has an ‘adverse effect’ and we do not believe mitigation steps must be taken…We do recognize that we need a valid permit… [W]e are considering all our options, including possible appeal rights, but because a permit was not applied for before [construction], we plan to discuss mitigation efforts with the Park Service.”

He continues, “[T]he six-month timeframe concerns us…We may ask the [U.S. Army Corps of Engineers] for an extension of time that would accommodate legislative involvement.”

But legislative involvement will only politicize what should be serious, efficient, short-lived negotiations – the Allagash isn’t the West Bank of the Jordan.

DOC got in this mess by itself. It ignored the Legislature’s mandate to “develop the maximum wilderness character” of the Allagash and instead developed the maximum roaded character. Now that NPS has blown the whistle, DOC wants to shift the focus to lawmakers, to delay negotiations and

to escape responsibility for self-generated illegalities.

Maine’s Legislature has re-mained indifferent to the deviations of DOC, which has repeatedly kept the ACF Committee in the dark about what’s really happening in Allagash management. Whipsawing elected lawmakers is something Congress tolerates from no federal agency, but this state agency goes unpunished by this Legislature.

Newspapers have editorialized for mitigation. Bangor Daily News: “Remedies proposed by the Park Service are far from onerous and could improve the Allagash.” Portland Press Herald: “[T]he park service’s after-the-fact permitting plan … rightly focuses on the future … [L]imiting new access points is a recommendation Maine should take more seriously than in the past.” Ellsworth American: “[T]he park service has made some good points … [such as] closing some accesses or modifying them so the public cannot drive directly to the water. We hope the state will heed the park service criticism and take appropriate steps to address the issues…”

These moderate voices recognize that NPS’ determination letter is restrained, contains no hyperbole, and grants DOC the right to negotiate rather than face draconian consequences. By contrast, DOC’s obdurate resistance merits the Bangor Daily News’ judgment that the agency’s approach to the Allagash is “sloppy living” and “a little defiant.” DOC pursues its strange ideal of maximum drive-up accesses and alien dams in protected wild country against sound advice, like Ahab chasing the whale and threatening to strike the sun if it insults him. With its mitigation directive, NPS is throwing the agency a life preserver, but the captain is too driven to notice.

NPS is subtly offering DOC a dignified exit, a way to leave a heroic Allagash legacy: DOC’s lame-duck leadership – little more than a year to go – still can put the King administration on a vector toward restoring the river’s legally permanent wild condition. The public will remember and applaud. By negotiating now, DOC avoids the Park Service’s ultimate trump – denial of the permit and consequent removal of the industrial dam.

Silently watching is the U.S. Environmental Protection Agency, which wrote on July 24, “Once a decision is made on the [Churchill] permit application, EPA will evaluate further actions.” For federal offenses of the magnitude of DOC’s, EPA fines could reach more than $9 million for every year of dam operation. This is not an outcome that would enshrine the present DOC in the taxpayers’ pantheon of great public managers.

NPS found “substantial evidence that Churchill Dam does not represent an isolated incident, as work ranging from bridge replacements to rip-rapping of riverbanks appears to have occurred without any wild and scenic review as required…” Put differently, additional failures to obtain permits from the corps are under investigation, suggesting a “pattern and practice,” an EPA trigger term.

Allagash forest landowners ought to think this out coolly. They might quietly advise the commissioner to negotiate mitigations now. That is the surest way that Churchill Dam, now with a fortified industrial truckway atop it, will continue to serve logging trucks, which have rights to operate in the area.

The mitigation options can include closing John’s Bridge permanently to public vehicles and curtailing other drive-up accesses to the wilderness waterway, or removing Churchill Dam and its truckway. Which choice has greater benefits for the timber business and, simultaneously, the river?

Nobody wants to force the dam down – except, it seems, DOC. What advice would you give the commissioner?

Ken Olson of Bass Harbor is founder of Allagash Partners. He is former president and CEO of the national conservation organization American Rivers.