Maine § 6121. - Fishways in existing dams or artificial obstructions

(2) The owner, lessee or other person in control of the dam or artificial obstruction requests a public hearing.   [PL 2013, c. 358, §1 (AMD).]

C. The commissioner and the Commissioner of Inland Fisheries and Wildlife shall accept testimony from the dam owner, lessee or other person in control of the dam or artificial obstruction on alternate fishway designs to those proposed by the commissioners for that dam or artificial obstruction.   [PL 2013, c. 358, §1 (AMD).]

5.  Decision.  In the event the commissioner and the Commissioner of Inland Fisheries and Wildlife decide that a fishway should be constructed, repaired, altered or maintained, their final orders must be issued with specific plans and descriptions of the fishway construction, alteration, repair or maintenance requirements, the conditions of the use of the fishway and the time and manner required for fishway operation. The commissioners may issue a decision requiring the owners, lessees or other persons in control of the dam or obstruction to construct, repair, alter or maintain a fishway. Such a decision must be supported by a finding based on evidence submitted to the commissioners that either of the following conditions exist:

A. One or more species of anadromous or migratory fish can be restored in substantial numbers to the watershed by construction, alteration, repair or maintenance of a fishway, and habitat anywhere in the watershed above the dam or obstruction is sufficient and suitable to support a substantial commercial or recreational fishery for one or more species of anadromous or migratory fish; or   [PL 1983, c. 388, §1 (RPR).]

B. The construction, alteration, repair or maintenance of a fishway is necessary to protect or enhance rare, threatened or endangered fish species.   [PL 1983, c. 388, §1 (RPR).]

In the event that the commissioners decide that no fishway should be constructed, the commissioners shall specify in that decision a period immediately subsequent to that decision during which no fishway may be required to be constructed. That period may not exceed 5 years.  

6.  Compliance. 

A. The owner, lessee or other person in control of the dam or other artificial obstruction is jointly and severally liable for the costs of fishway design, construction, repair, alteration or maintenance and for full compliance with a decision issued pursuant to subsection 5. If the owner, lessee or other person in control of the dam or other artificial obstruction refuses to comply or does not fully comply with the commissioners' decision, the commissioners shall initiate a civil action to enjoin the owner, lessee or person in control of the dam to comply fully with the commissioners' order or to restrain the violation of an order. In the proceeding, the court shall not review the legality of the commissioners' order, except when the owner, lessee or person in control of the dam or artificial obstruction has brought a timely petition for judicial review pursuant to Title 5, chapter 375, subchapter 7.   [PL 2013, c. 358, §1 (AMD).]

B. The court may render judgment against and order the sale of the dam or other artificial obstruction, the land on which it stands and a right-of-way to the dam or artificial obstruction in order to secure the costs of fishway construction, repair, alteration or maintenance and costs of the court-ordered sale and the costs incurred by the department for fishway design. The purchaser of the dam or other obstruction is subject to the commissioners' decision.   [PL 2013, c. 358, §1 (AMD).]

7.  Privileged entry.  The commissioner and the Commissioner of Inland Fisheries and Wildlife, the commissioners' agents or subcontractors are privileged to enter upon any private land in order to examine, at least annually, fishways in dams or other artificial obstructions and the examination of dams provided in subsection 2. The commissioners shall notify the landowner, lessee or other person in control of the dam when the examination will take place and the time required to complete the examination. The commissioner and the Commissioner of Inland Fisheries and Wildlife shall make every effort to preserve private land and shall restore surrounding lands to the grade and condition existing prior to entry, if economically feasible.