ARTICLE — “Whiting Mill Pond Water Level and Minimum Flow Ordinance”
Section I. Title
This ordinance shall be known and may be cited as the “Whiting Mill Pond Dam Ordinance” (hereinafter referred to as the “Ordinance”).
Section II. Authority
In accordance with 30-A M.R.S. §§ 4454-4457 and the Town’s home rule authority, the Town hereby ordains that the Town shall, upon approval of the Maine DEP, have authority to regulate water levels and minimum flows for the Mill Pond in Whiting and, in conjunction therewith, to enter upon that property necessary for the purpose of maintaining, repairing, reconstructing, and operating an existing dam. Specifically, the Town or authorized contractors, together with personnel and equipment, may enter onto property under the authority of any enforcement order or easement secured for the purpose of maintenance and repair (and other authorized activities) of a dam that impounds the Mill Pond and that affects the water levels or minimum flow of the Mill Pond.
Section III. Findings and Purpose
The Mill Pond (the “Pond”) is a high value fire safety watershed in the Town of Whiting. The Mill Pond is also highly valued by the people of the Town of Whiting for its economic, historical, cultural, and aesthetic importance. Currently, a privately owned dam controls the water levels of the Pond (the “Mill Pond Dam”). The Mill Pond Dam is currently owned by the Downeast Salmon Federation (“DESF”). It has been determined that disrepair, discontinuance or a breach of the Mill Pond Dam would result in critical economic, cultural, and fire safety impacts to the residents and their properties in the Town of Whiting. It is critical for the Town to have the ability to maintain water levels in the Pond, and in conjunction therewith, to monitor and maintain this Mill Pond Dam.
Title 30-A M.R.S. § 4455 provides that any municipal ordinance to regulate water levels and flows must include (1) all substantive provisions of 38 M.R.S., Ch. 5, Subchapter 1, Article 3-A, under which the DEP establishes water level regimes and minimum flow requirements; and (2) provisions allowing the Commissioner of Environmental Protection and any municipality downstream of the impoundment to petition for a water level hearing.
Section IV. Substantive Law Provisions relating to Water Levels and Flow Requirements Adopted by Reference
The Town Meeting of the Town of Whiting hereby adopts the following
requirements consistent with the requirements of 38 M.R.S., Ch. 5, Subchapter 1, Article 3-A:
- Power. The Board of Selectmen may on the Board’s own motion and shall, at the request of the owner, lessee or person in control of a dam on the Pond (e.g., the Mill Pond Dam, currently owned by DESF), the Commissioner of Inland Fisheries and Wildlife, the Commissioner of Environmental Protection, any municipality downstream of the Pond, or upon receipt of petitions from the lesser of at least 25% or 50 of the littoral or riparian proprietors of the Pond, conduct a public hearing for the purpose of establishing a water level regime and, if applicable, minimum flow requirements for the Pond.
Notwithstanding the provisions of this subsection, after an order establishing a water level regime or minimum flow requirement has been issued pursuant to this subsection, the Board of Selectmen is not required to hold a hearing to establish a new water level regime or minimum flow requirement for the Pond in response to a petition from littoral or riparian proprietors unless the Board of Selectmen determines that there has been a substantial change in conditions or other circumstances materially affecting the impact of water levels and minimum flows on the public and private resources identified in subsection 4 since the order was issued.
- Notice. The Board of Selectmen shall provide written notice of any hearing held pursuant to this section to the owner, lessee or person in control, if known, of any dam on the Pond and to any petitioner who has petitioned for a hearing with respect to this body of water. The Board of Selectmen shall give public notice of the hearing under Title 5, section 9052 and shall also file notice of the hearing in the Whiting municipal office and in the county clerk’s office of Washington County, the county in which the Pond is located.
- Conduct of hearing. The hearing shall follow the procedures for a public hearing specified in any applicable Whiting Ordinance, and applicable Maine law, as well as the procedures specified in this section.
- Evidence. At the hearing, the Board of Selectmen shall solicit and receive testimony for the purpose of establishing a water level regime and, if applicable, minimum flow requirements for the Pond. The testimony is limited to:
- The water levels necessary to maintain the public rights of access to and use of the water for navigation, fishing, fowling, recreation and other lawful public uses;
- The water levels necessary to protect the safety of the littoral or riparian proprietors and the public;
- The water levels and minimum flow requirements necessary for the maintenance of fish and wildlife habitat and water quality;
- The water levels necessary to prevent the excessive erosion of shorelines;
- The water levels necessary to accommodate precipitation and run off of waters;
- The water levels necessary to maintain public and private water supplies;
- The water levels and flows necessary for any ongoing use of the dam to generate or to enhance the downstream generation of hydroelectric or hydromechanical power; and
- The water levels necessary to provide flows from any dam on the Pond to maintain public access and use, fish propagation and fish passage facilities, fish and wildlife habitat and water quality downstream of the body of water.
- Order. Based on the evidence solicited at the hearing, the Board of Selectmen shall make written findings and issue an order to the owner, lessee or person in control of a dam establishing a water level regime for the Pond and, if applicable, minimum flow requirements for such dam. The order must, insofar as practical, require the maintenance of a stable water level, but must include provision for variations in water level to permit sufficient drawdown of the body to accommodate precipitation and runoff of surface waters, minimum flow requirements and to otherwise permit seasonal and other necessary fluctuations in the water level of the Pond in order to protect public health, safety and welfare and the public and private resources identified in subsection 4. The Board of Selectmen shall deliver a copy of the order to the owner, lessee or person in control of the dam, the municipal office of the Town of Whiting and each petitioner, if any, and shall also file a copy of the order in the Washington Registry of Deeds.
- Appeal. The Board of Selectmen’s order may only be appealed within thirty (30) days of the issuance of the Board’s written Order to the Maine Superior Court pursuant to Rule 80B of the Maine Rules of Civil Procedure.
Section V. Maintenance of the Dam after Order Issued
- Prohibition. After issuance of an order under Section IV, subsection 5, establishing a water level regime for the Pond, no owner, lessee or person in control of the dam impounding the Pond, nor any subsequent transferee, may operate or maintain the dam or cause or permit the dam to be operated or maintained in any manner that will cause the level of water to be higher or lower than that permitted by order of the Board of Selectmen or to otherwise violate the terms of the order of the Board of Selectmen.
- Exception. An owner, lessee or person in control of a dam on the Pond may not be in violation of subsection 1 when the water level fluctuation not permitted by the order was caused by unforeseeable and unpredictable meteorological conditions or operating failures of such dam or any associated equipment or by valid order of federal, state or local authorities, including an order issued pursuant to Title 37-B, section 1114, subsection 2, and when the person could not have avoided the fluctuation by promptly undertaking all reasonably available steps to regulate water flow through or over any dam under the person’s control. The burden of proof is on the owner, lessee or person in control of the dam to demonstrate the applicability of this subsection.
- Enforcement. The Town may commence an action to enjoin the violation of any provision of this Section V. The Town may enforce any order issued under Section IV by any other appropriate remedy, including, but not limited to, entering the dam premises to carry out the terms of the order, and shall be entitled to all costs incurred by the Town for the purposes of carrying out the terms of such order.
The violation of any order issued under Section IV, is punishable by a forfeiture of not less than $100 and not more than $10,000. Each day of violation is considered a separate offense.
- Appeal. Any person aggrieved by an order of the Board of Selectmen under Section V may appeal to the Superior Court under Rule 80B of the Maine Rules of Civil Procedure.
Section VI. Monitoring of Water Levels and Oversight of Dams
The monitoring of the Pond water levels above any dam (e.g., the Mill Pond Dam), and associated minimum flows below any dam, as well as oversight of operation of any dam (and any other future dam on the Pond) shall be accomplished in the following manner by the Town of Whiting:
Dam Steward: As a designee of the Board of Selectmen, a Steward shall be appointed by the Board of Selectmen annually in the month of May for each year following the adoption of this Ordinance. Nominees for Steward shall be by recommendation brought forward by the Town at their annual meeting subject to the approval by the Board of Selectmen. If no nominees are recommended, then the Board of Selectmen may proceed and appoint a Dam Steward. The Steward’s responsibility shall include monitoring the Pond water levels and minimum flows for the Pond, and dam condition and maintenance issues. The Steward will work in cooperation with the owner, lessee or person in control of a dam, Maine Department of Inland Fisheries and Wildlife, and the Maine Emergency Management Agency to maintain water levels that are safe and desirable to maintain the fish and wildlife species using the Pond. The Steward will notify the Town of Whiting of any events promptly and also provide a regular report to the Town as regularly as the Town may request.
Section VII. Additional Dam Maintenance Procedures
Applicability. This section shall apply to dam maintenance and repair activities conducted by the Town that are not performed pursuant to an enforcement order in accordance with Section V of this Ordinance.
Notification. Notification by the Steward of any required repairs will be given to the Town, and any designee of the Town.
Authorization to repair. The Board of Selectmen, upon notice of required
maintenance or repair work, will be the sole authorizing body.
Scope of repairs. The scope of repairs, design specifications, and permit requirements shall be itemized and developed as a bid specification by a qualified engineer.
Approval of repairs. Approval of repairs shall be conducted pursuant to the Town’s customary approval processes for repairs of this scope and nature.
Section VIII. Funding of repairs
TIF or Reserve Funds. The Town’s costs to carry out activities pursuant to this Ordinance shall be funded through approved TIF Funds, Economic Development Reserve Funds, Unappropriated Fund Balance, or a combination of these sources, as approved by the Board of Selectmen.
Section IX. Required Reviews of Dam Repairs
The Board of Selectmen or its designee and/or the Dam Steward shall review and verify that all dam repairs have been done in accordance with acceptable engineering standards and workmanship. In doing so, the Town may consult with Maine Emergency Management Agency, Maine Department of Inland Fisheries & Wildlife, the Maine Department of Environmental Protection, and any other governmental agency or third party consultant/engineer.
Section X. Severability
Should any section or provision of this Ordinance be declared by a court of competent jurisdiction to be invalid, such decision shall not invalidate or affect the enforcement of any other section or provision of this Ordinance.
Section XI. Definitions
As used in this Ordinance, unless the context indicates otherwise, the following terms have the following meanings:
Dam. “Dam” means any man-made artificial barrier, including appurtenant works, the site on which it is located and appurtenant rights of flowage and access, which impounds or diverts a river, stream or great pond and which is 2 feet or more in height and has an impounding capacity at maximum water storage elevation of 15 acre-feet or more. Any such artificial barrier constructed solely for the purpose of impounding water to allow timber to be floated downstream in a logging operation shall not be considered a dam for the purposes of this article, unless it has been repaired, modified or maintained by or with the knowledge of the owner, lessee or person in control since the discontinuance of its use in connection with logging operations. Any adjacent property, easements, roads, bridges or works not necessary for the operation or maintenance of a
dam or access to the dam shall not be included under the provisions of this article.
Height. “Height” means, in reference to a dam, the vertical distance in feet from the natural bed of the stream or watercourse measured at the downstream toe of the barrier, or from the lowest elevation of the outside limit of the barrier, if it is not across a stream channel or watercourse, to the maximum capable water storage elevation.
Littoral proprietor. “Littoral proprietor” means an owner or lessee of property on the shore of a lake impounded by a particular dam.
Person. “Person” means any individual, firm, partnership, corporation, trust, municipality, quasi-municipal corporation, state agency, federal agency or other legal entity.
Riparian proprietor. “Riparian proprietor” means an owner or lessee of property on the bank of a river or stream or shore of a pond or other small body of water impounded by a particular dam.
Board of Selectmen Certification:
We the undersigned members of the Whiting Board of Selectmen hereby certify this ordinance entitled “Whiting Mill Pond Water Level and Minimum Flow Ordinance.”
Dated: November 22, 2016.
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