01- 672 C.M.R. ch. 11, § 5

Current through 2024-51, December 18, 2024

Section 672-11-5 - Standard of Review

The Administering Agency shall approve a project when it finds that the applicant has demonstrated that the following criteria have been met, as set forth in 38 M.R.S. §636.

A.Financial and technical capability. The applicant has the financial capability and technical ability to undertake the project. In the event that the applicant is unable to demonstrate financial capability, the Department or Commission may grant the permit contingent upon the applicant's demonstration of financial capability prior to commencement of any permitted activities.

B.Safety. The applicant has made adequate provisions for protection of public safety.

C.Public benefits. The project will result in significant economic benefits to the public, including, but not limited to, creation of employment opportunities in Maine. The Administering Agency shall identify and measure economic benefits and costs using generally accepted methods and procedures, such as those published by the United States Water Resources Council. In accordance with these methods and procedures, economic benefits may include, but are not limited to: increases in the income or purchasing power of Maine citizens, energy security from reducing dependence upon fossil fuels, and creation of employment opportunities for workers of the State. Economic costs may include, but are not limited to: decreases in the income or purchasing power of Maine citizens, the value of other hydroelectric generating opportunities diminished or eliminated by a project, and the elimination of employment opportunities in Maine. To meet this criterion, the applicant must demonstrate that:

(1) the benefits claimed from the proposed project are real, in that the benefits would not result but for the project;

(2) the project's economic benefits are greater than its economic costs, and that the resulting net benefit is significant when compared to the economic conditions likely to exist without the project; and

(3) in cases involving new dams which would result in substantial economic costs to the public, the benefits claimed from the project have been weighed against the economic conditions that would otherwise result from any alternative source(s) of energy generation or conservation that might reasonably be pursued in the event that the project is not built.

D.Traffic movement. The applicant has made adequate provision for traffic movement of all types including but not limited to land-based and water-based vehicles and pedestrians out of or into the project area.

E.Maine Land Use Planning Commission. Within the jurisdiction of the Commission, the project is an allowed use within the subdistricts in which it is proposed and the project complies with the Commission's land use standards. This criterion does not apply to any project that uses tidal or wave action as a source of electrical or mechanical power.

F.Environmental mitigation. The applicant has made reasonable provisions to realize the environmental benefits of the project, if any, and to mitigate its adverse environmental impacts.

Mitigation is not necessarily limited to the replacement of affected resources or environments (i.e., in-kind or on-site mitigation), but may involve the provision of substitute resources or environments (i.e., out-of-kind or off-site mitigation). In-kind or on-site mitigation measures are preferred. Off-site or out-of-kind measures may be acceptable where the Administering Agency finds that in-kind or on-site measures are not feasible or are not desirable.

Whether an applicant's provisions to realize environmental benefits or to mitigate adverse environmental impacts are reasonable depends in part upon the significance of the resource(s) affected.

G.Environmental and energy considerations. The advantages of the project are greater than the direct and cumulative adverse impacts over the life of the project based upon the considerations below.

The Administering Agency shall make a written finding of fact with respect to the nature and magnitude of the impact of the project on each of the considerations under this sub-section, and a written explanation of its use of these findings in reaching a decision. The Administering Agency shall consider:

(1) whether the project will result in significant benefit or harm to soil stability, coastal and inland wetlands, or the natural environment of any surface waters and their shorelands;

(2) whether the project will result in significant benefit or harm to fish and wildlife resources. In making its determination, the Administering Agency shall consider other existing uses of the watershed, and fisheries management plans adopted by the Department of Inland Fisheries and Wildlife and/or the Department of Marine Resources;

(3) whether the project will result in significant benefit or harm to historic and archaeological resources;

(4) whether the project will result in significant benefit or harm to the public rights of access to and use of the surface waters of the State for navigation, fishing, fowling, recreation and other lawful public uses;

(5) whether the project will result in significant flood control benefits or flood hazards; and

(6) whether the project will result in significant hydroelectric energy benefits, including the increase in generating capacity and annual energy output resulting from the project, and the amount of nonrenewable fuels it would replace.

H.Water Quality. There is reasonable assurance that the project will not violate applicable state water quality standards, including the provisions of 38 M.R.S. §464(4)(F). This finding is required for the proposed impoundment and for any affected classified water bodies downstream of the proposed impoundment. The Department shall reclassify the waters of the proposed impoundment to Class GPA if the Department finds:

(1) there is a reasonable likelihood that the proposed impoundment will thermally stratify;

(2) the proposed impoundment will exceed 30 acres in surface area;

(3) the proposed impoundment will not have any upstream direct discharges except cooling water; and

(4) the proposed impoundment will not violate 38 M.R.S. §464(4)(F).

I.Additional Information Requirements. The Administering Agency may require applicants for hydropower projects to submit additional information as deemed necessary to demonstrate that the criteria in Section 5 of this chapter have been met.

01- 672 C.M.R. ch. 11, § 5