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This report describes the process
that the Maine Department of Conservation (DOC) and the National Park Service
(NPS) used to develop a Memorandum of Agreement (MOA) for an after-the-fact
Army Corps of Engineers’ permit for Churchill Dam in the Allagash Wilderness
Waterway. It summarizes the public
comments received on a draft MOA and provides the basis for revisions made to
the draft. Attached to this report is
the final MOA, the press release requesting public comments, and a tally of the
comments received.
After working several months with
the NPS to develop a draft agreement, in December 2001 the DOC shared with the
legislative Agriculture, Conservation and Forestry committee a copy of the
draft MOA along with the rationale for the specific provisions of the
agreement. The committee recommended
that the DOC continue its efforts and asked the department to provide
opportunity for meaningful public comment on the agreement before signing
it.
Later that month, the draft MOA was
discussed at a meeting of the Allagash Advisory Council, posted on DOC’s
Internet web site, distributed at the public forums, and provided to persons
who requested it directly from the Department. In addition, the draft MOA and
different perspectives on its language and desirability were widely discussed
in the print media. Several environmental organizations, both Maine-based and
national, alerted their members and urged them to comment to the agencies and
in some cases to the governor.
Public comment on a draft MOA between the State of Maine, Department of Conservation and the National Park Service was received by the DOC and NPS as described below. A copy of the press release distributed by DOC regarding opportunity for public comment is attached as Appendix A.
· Public, televised forums from 5:30 PM to 9:30 PM, on January 10, 2002, in Ashland, Augusta, Bangor Fort Kent, and Portland using the University of Maine ITV system, which were viewed by all attendees and DOC and NPS staff;
· E-mail and written comments accepted by the Department and the NPS until midnight January 17, 2002.
Following the close of the comment period, January 17, the oral and written comments were discussed by DOC and NPS drafters of the agreement and a representative of the Attorney General’s Office. As expected, the comments covered a wide range of views, including many who favored the MOA; some who wanted the agreement to encompass more issues; others who opposed the MOA; and those who wanted the agreement to cover fewer issues. The DOC and NPS carefully and thoroughly considered the comments and decided to keep the core wording of the basic memorandum. Several modifications were drafted in view of some of the expressed concerns and the format was modified in some instances to enhance clarity.
As can be seen from reviewing the tally of comments,
there were diverse views on the draft MOA.
A total of 1,431 comments were received by DOC as emails, letters,
written testimony, and oral testimony from both instate and out of state
residents. The majority of the
comments, whether from Maine or from out of state residents, supported the
“wild” designation and a Memorandum of Agreement. Most of this support
recommended additional provisions or alterations of the draft conditions to
strengthen the DOC commitment, the role of the Park Service, or the conditions
of “wild” river management for the Allagash.
Opposition to the MOA proposed deleting central components such as the
review of the 1999 Management Plan, changes to access, and NPS involvement. In
some cases, opposition was absolute, the agreement being deemed unwarranted.
Opinions were also expressed on the extent of the Management Plan Review, the
availability and source of funds to carry out the agreed upon actions, ADA
requirements, and consideration for continuation of traditional use by local
residents. The report groups the public
comments under several broad topics: 1)
Role of the Wild and Scenic River’s Act in the Allagash Wilderness Waterway; 2)
Access Issues; 3) Review of the 1999 Allagash Wilderness Waterway Management
Plan; and 4) Specific Revisions to the Agreement.
1. Role of
the Wild and Scenic River’s Act in the Allagash Wilderness Waterway
The NPS and DOC (the
parties) have reviewed their authority to enter into this agreement with their
appropriate legal counsels who have determined that the parties have the legal
authority to enter into the MOA. The
parties, and the Corps of Engineers, have determined that the MOA is the most
appropriate vehicle for resolving mitigation needs related to building of
Churchill Dam without first obtaining a Corps permit and to examine the
relationship between the federal and state statutes.
The agencies received many comments that suggested the MOA does not go far enough in meeting federal “wild” river standards and guidelines. The comments express the opinion that the MOA falls short of compliance with these criteria and asked to have additional on-the-ground mitigation actions included in the MOA.
The parties recognize
that the Allagash was designated a 'wild' river under a particularly
challenging set of circumstances and conditions that can only be adequately
discussed, interpreted, and implemented through a management planning process.
Thus, the MOA defers the interpretations and decisions regarding access and
structures outside the Churchill Dam vicinity as they relate to the application
of the 'wild' river designation to be incorporated into the AWW Management Plan
review process.
Some comments stated
that the MOA gives the NPS more authority than it has had in the past. The parties do not interpret the MOA as
giving the NPS any greater role in State’s management of the Waterway than has
previously been the case. The parties
agree that it is time to establish a closer working relationship to both
resolve current conflicts and prevent future controversies.
2. Access Issues
Many comments were
received related to the manner and extent to which access issues are included
in the MOA. Strong opinions that the access provisions (John's Bridge;
Bissonnette) did not go far enough in restricting access and strong opinions
that further restricting access should not be included at all were expressed.
The parties believe
that the treatment of the access sites at Bissonnette and John's Bridge
represents appropriate mitigation for the development of full vehicle access
included in the scope of the Churchill Dam project. Any consideration of access
issues beyond this stretch of river has been deferred for discussion in the
context of the AWW Management Plan review.
Several comments were
received related to the application of the Americans with Disabilities Act to
the MOA's proposed treatment of John's Bridge access. Both parties have
recognized the importance of this issue.
It is the parties
mutual understanding and belief that at least three options exist at John's
Bridge that are consistent with the key federal statutes (Wild and Scenic
Rivers Act; Americans With Disabilities Act; Section 504 of the Rehabilitation
Act; Land and Water Conservation Fund) and with the language of the MOA: A) no
access development; B) a portage foot trail from outside the "restricted
zone" compatible with the wilderness character of the restricted zone; and
C) a developed foot trail with surface and grade improvements consistent with
the ADA.
Option B would involve
a minimum level of trail development on state-owned land (little surface
improvement; minimize clearing of trees to that necessary for a single-file
canoe portage foot trail; etc.). The parties understand that this level of
trail development would not trigger ADA compliance at John's Bridge, given that
the NPS has already found that the AWW in its entirety meets the requirements
of ADA, and given that ADA compliant access exists at Churchill Dam.
There
is also an understanding that the proposed activities to lengthen the trail at
Bissonnette Bridge would not trigger ADA requirements because there is
currently no ADA accessible access at Bissonnette Bridge and no new trail
development is contemplated.
3. AWW Management Plan Review
Many comments were
received related to the MOA's called-for review of the AWW Management
Plan. Some want the review to encompass
the entire plan while others believe no review is necessary.
The parties recognize
that a review of the 1999 Management Plan is necessary in an attempt to provide
appropriate and necessary consideration of the issues that have been raised
related to the application of the federal 'wild' river designation to the
Allagash as they relate to structures and access. The 1999 Management Plan may
not have adequately treated the issue of the significance of the “wild”
designation, and a review of the AWW Management Plan is an appropriate and
reasonable way to address the issues.
Some comments asked questions about how the WSRA applies in specific
situations and how to define “wilderness recreation values” as that term is
applied to the AWW. It is these very
questions that the review of the plan will attempt to answer.
The MOA does not
pre-judge the outcome of such a process, nor does it give the NPS any approval
role in that outcome. The DOC is the administering agency for managing the
Waterway and must make the final decisions regarding management of the Waterway
and revisions to the 1999 Management Plan.
4. Specific Revisions to the draft MOA
The
parties made several revisions to the MOA to better clarify the intent of the
parties and to have better organization within the document. For example, all of the provisions for the
“Historical Resources” program now reside in that section, including the
timeframe and funding issues.
Similarly, all of the provisions for the review of the 1999 Management
Plan are self-contained.
To
emphasize that the DOC does not intend for access at Bissonnette Bridge and the
proposed Churchill Lake canoe access site to involve filling wetlands or the
watercourse, the Agreement expressly states that intent.
There
were a great many comments supporting the Historic Resources program. In response to comments about available
funds for the program, the parties added language to the MOA stating that the
DOC may seek outside funds and additional appropriations, if needed, and that
pursuing funding is considered a good faith effort to complete the program in
compliance with the MOA. To help ensure
that the program will be completed, the parties agreed to expand the timeframe
for completion from two years to five years.
The
section on the review of the 1999 Management Plan was revised to make clearer
the intent of the parties to define the scope of the review. Many comments indicated that the draft MOA
did not clearly state the issues anticipated to be examined under the review of
the management plan. As the parties’
discussions progressed, they realized that the underlying notion of the review
should focus on the relationship between the WSRA and the state statute, and
how the WSRA should be applied to the AWW, specifically to structures and
access. The parties also agreed that
use of the AWW by Maine citizens should also be recognized as an important part
of the process. The review section has
been revised to reflect those considerations.
It is also clear that recommendations for revisions to the plan are
expected, and that the DOC remains the final decision maker on the
recommendations.
In
response to some comments about the NPS inserting itself in the AWW Council,
the parties agreed that the NPS will assign a liaison to the Council only at
the request of the DOC.
To
ensure that the MOA only applies if the Army Corps of Engineers issues the DOC
a permit for Churchill Dam, a provision stating that the agreement is null and
void if the permit is not issued, was added to the agreement.
IV. Conclusion
The DOC and NPS believe that the agreement in its final form represents a reasonable, partnership approach to resolving the Churchill Dam issue and defining the appropriate interpretation of the federal wild river designation and “guidelines” for the management of a state-administered component of the Wild and Scenic River System with a history and situation as unique as that of the Allagash.
February 22, 2002