Ruling delays dam dismantling Judge says permits required for work on Winterport structure

A judge Thursday halted plans by a conservation group to dismantle the West Winterport Dam to allow the return of wild salmon runs.

In a ruling issued from Penobscot County Superior Court in Bangor, Justice Andrew Mead ruled that dam owner John Jones and the environmental group Facilitators Improving Salmonid Habitat, or FISH, need to obtain local shoreland zoning permits before they can proceed with demolition of the dam.

The dam is on the Marsh Stream, which serves as the border between Winterport and Frankfort.

Mead’s ruling means that FISH and Jones need to get shoreland permits from each town. FISH said it wanted the dam removed to improve the stream’s water quality and to help restore Atlantic salmon and other spawning species to the Penobscot River tributary. The towns opposed its removal because they say its 50-acre impoundment provides a source of water for fire protection and recreation and serves as a flood control device.

FISH and Jones had argued that the Maine Waterways Conservation Act, which deals with hydroelectric projects, superseded local zoning. Mead rejected that contention. He said the act “does not pre-empt [the towns’] authority to regulate the construction and alteration of dam structures pursuant to their local shoreland zoning ordinances.”

The decision came as welcome news to Charles Gilbert, the Brewer lawyer retained by the towns to argue their case. Gilbert had argued for months that the zoning process could not be sidestepped.

“We’re grateful and relieved,” Gilbert said. “I think we’re going to have a little breathing room.”

FISH President Bill Townsend, a Skowhegan lawyer, was dismayed by the ruling.

Townsend said he was unsure what the next step was, although he acknowledged an appeal to the state supreme court was a possibility.

“I have no idea what we are going to do next,” Townsend said. “We have the option to appeal but there are a lot of other issues involved as well.”

Townsend described the issue as “complicated” because the dam and its fish way were regulated by federal and state agencies, including the Federal Energy Regulatory Commission. Where on the one hand FERC has issued an order that the dam be removed, Mead, on the other, has blocked that from happening.

However, Mead noted in the ruling that in case “some other governmental agency” demands specific upgrades or maintenance to the dam, he would consider assessing the costs of that work to the towns.

Townsend said his concern for the moment was Jones. He said Jones had made a business decision two years ago to stop using the dam to produce electricity and work with FISH on its removal. He said the dam was Jones’ private property and on private land.

Justice Mead based his ruling on the fact that removal of the dam would cause irreparable injury to the towns.

“The removal of the dam will produce immediate results on firefighting water resources and the destruction of a Great Pond with the implicit recreational activities,” Mead said. “Also, the unique attributes and historical components of such a one-of-a-kind structure are immediately lost. The effects on local wildlife and habitat are immediate and profound. An order to rebuild such a dam, in the event of illegal removal, would involve enormous expense and outstrip the financial resources of all but the wealthiest. Rebuilding is simply not a viable alternative. If the dam is lost, it will be lost for all time.”