AUGUSTA – The Board of Environmental Protection has upheld a state permit allowing the West Winterport Dam to be torn down.

Upon completion of a lengthy hearing Thursday, the civilian review board voted 6-1 to deny the appeal of the towns of Winterport and Frankfort of a Department of Environmental Protection permit issued to the environmental group Facilitators Improving Salmonid Habitat to remove the dam. They also denied the towns’ request for a public hearing on the matter.

“The law is broke, fix it,” was the reaction of the towns’ attorney, Charles Gilbert of Bangor, to the decision. “It’s obvious that when the laws were written they were written to establish the criteria for construction of these projects; they were not written with the idea of deconstruction.”

FISH wants the dam across the Marsh Stream removed to return the river to its natural habitat and to permit access to Atlantic salmon and other anadromous fish. The towns oppose the project because they believe the dam provides flood protection and water for fighting fires. It also offers recreational opportunities.

Many board members agreed with the towns’ concerns but stressed that current laws governing dam removal favored FISH’s proposal. The dam falls under the umbrella of a series of statutes governing hydroelectric projects, and the DEP had no option other than granting FISH a permit to remove the dam, BEP attorney Jerry Reed told members.

“We don’t believe there are any legal obstacles to removal,” Reed noted.

In arguing against the permit, Gilbert accused FISH of wanting to “change an existing ecosystem for another ecosystem.” Gilbert noted that the impoundment behind the dam supported a wide variety of plant and wildlife that removal of the dam would eliminate.

“You have a private group saying, ‘What we believe is better than what is there now,'” said Gilbert.

FISH president Bill Townsend acknowledged the possibility that Atlantic salmon may never return to Marsh Stream, but that his group believed it was worth the effort. He noted that FISH had removed four other dams on Maine rivers and that this was the first time it had to fight to defend its position. He said that while the process had become “extraordinarily confrontational,” FISH was prepared to see it through.

“I’m not going to sit here and tell you that if this dam is taken out that salmon will be restored to Marsh Stream,” said Townsend. “I’m not going to say it will work but I think we ought to try.”

Dam owner John C. Jones told the board he was concerned about the soundness of the structure. He said the original dam was built from “field rock” and that he capped it with concrete when he installed his power house and turbines. He said he was worried about the homes downstream if the dam ever let go during a period of high flow.

“I don’t like it a bit sitting there,” said Jones. “I think FISH should be thanked by many people for what they’re doing.”

Rep. Carol Weston, R-Montville, urged the board to hold a public hearing if only to create more awareness of the issue. Weston said the state had created a wide range of laws dealing with fish restoration but somehow had overlooked the human aspect of the equation. She predicted the board would be confronted with similar requests until the laws are changed.

“When you see the property you paid for, the pond you canoed on going away, everything looks a lot different,” said Weston. “I believe it’s the Legislature’s fault. … The law does not address the voice of the citizen under the law.”

Board Chairman John Tewhey told Weston and the others that while he agreed that the laws needed to be changed, the board was required to act under the existing statutes.

“You have helped define the issues,” he told Weston. “Now it’s the job of the Legislature.”

The towns still have the option to appeal the BEP’s decision and also are considering taking the dam by eminent domain. Winterport will address that issue at its annual town meeting Saturday. Frankfort is expected to hold a special town meeting on the matter this summer.

“It’s clearly far from over in a number of areas, but it’s a huge relief for me to have gotten this far,” said Townsend. “I feel very relieved and I’m not going to worry about what comes next, at least not until tomorrow.”