if it is reasonably susceptible to different interpretation." Scamman v. Shaw's Supermarkets,
Inc., 2017 ME 41, <]I 14, 157 A.3d 223 (internal citation omitted). If the statute is ambiguous,
the agency's interpretation is given great deference and will be upheld unless the statute
plainly compels a contrary result. Dep't ofCorrections v. Pub. Utils. Comm'n, 2009 ME 40,
3 AquaFortis argues that the DEP's current staff lacks experience in administering the statutes and rules related to dams, and therefore the DEP's interpretation of statutes should be given no deference. AquaFortis does not cite any authority to support its proposition that an agency must regularly administer or enforce a statute to be given deference. It also does not cite any authority to support its proposition that lack of experience by the current DEP .staff creates bias (argued at Section 2.C below).
5 <]I 8, 986 A.2d 1047; Champlain Wind LLc v. Bd. of Envtl. Prot., 2015 ME 156, <]I 16, 129 A.2d
279. An agency's interpretation of its own rules is given considerable deference and
should only be set aside when the regulation compels a contrary result, or the
interpretation is contrary to the governing statute. Friends of the Boundary Mountains v.
Land Use Regulation Comm'n, 2012 NIE 53, ([ 6, 40 A.3d 947.
DISCUSSION
AquaFortis sets forth multiple arguments in this appeal to support its assertion
that the WLO should be vacated or remanded. Each is discussed in tum. AquaFortis first
argues that the DEP' s decision is unsupported by substantial evidence in the record. This
issue appears through several of AquaFortis' s other arguments, and will be discussed in
those contexts.
Next, AquaFortis claims that the DEP lacks jurisdiction to issue the WLO based on
(i) an exemption under 38 M.R.S. § 480-Q; (ii) an exemption pursuant to the Mill Act; (iii)
AquaFortis's lack of "control" over the Dam; and (iv) the Dam's breached status.
AquaFortis also argues that the DEP Jacks authority to order or coerce repairs to the Dam.
Then, AquaFortis asserts that it was not provided due process in regards to the
bathyrnetric study conducted after the Hearing; that the DEP did not fulfill its statutory
obligations by issuing Special Conditions 4-7; and that there was bias in the investigation
which influenced the WLO.
Lastly, AquaFortis contends that there has been an unconstitutional Taking.
1. Turisdiction
AquaFortis argues that the DEP does not have jurisdiction to issue the WLO to it,
claiming exemptions to the Water Level Act, and that the DEP acted in excess of its
authority when it ordered and coerced it to repair the Dam.
6 1.A. DEP's Authority to Issue a WLO to AquaFortis Under Section 840
The authority to issue a water level order is found in 38 M.R.S. § 840(1 ), which says
that the DEP shalt at the request of 25% or 50 of the littoral owners, "conduct an
adjudicatory hearing for the purpose of establishing a water level regime and, if II applicable, minimum flow requirements for the body of water impounded
Exemptions to the Water Level Act are found in Section 840(1)(A)-(F).
1.A.i. Exemption under Section 480-0 One such exemption is for a dam that is "operating with a permit setting water
levels issued under the protection of natural resources laws, sections 480-A to 480-S." 38
M.R.S. § 840(l)(D). Entitled "Activities for which a permit is not required/' Section 480-
Q does exactly as the title suggests - the statute lists activities for which no permit is required. AquaFortis argues that an email from a DEP employee, Earle Townsend, to
PPM's manager Paul Kelley, Jr., constitutes an implied permit. In the email, Mr.
Townsend quoted Section 480-Q and stated that if the projects he and Mr. Kelley had
previously discussed were done as previously discussed, they would meet the criteria of
Section 480-Q. (C.R. 108 Ex. L)
Section 480-Q is unambiguous and its plain meaning shows that there are no
permits issued under this section, since the activities listed do not require a permit. There
is substantial evidence to support the DEP's finding that the email from Mr. Townsend
is not an implied permit, since permits under Section 480-Q do not exist. Additionally,
the email from Mr. Townsend did not "set[} water levels/' as required to qualify for the
exemption, regardless of whether it constitutes a permit. For these reasons, Section 480-
Q is inapplicable.
7 1.A.ii. Exemption via the Mill Act (38 M.R.S. § 651 et seq.)
The Water Level Act also exempts any dam that is "operating with a permit setting
water levels issued under" several additional named statutes or "any other statute
regulating the construction or operation of dams." 38 M.R.S. § 840(1)(D). AquaFortis
argues that the Mill Act (38 M.R.S. § 651 et seq.) is such a statute and the Dam is a Mill
Act dam, therefore it is exempt from Water Level Act jurisdiction.
No findings were made by the DEP regarding the applicability of the Mill Act to
the Dam, and therefore no discussion of the Mill Act, or its relationship to the Water Level
Act has been conducted below. Nonetheless, AquaFortis's argument is unsuccessful on
its interpretation of the law, so remand for such findings is not necessary.
The Mill Act is indeed a statute that regulates the construction and operation of
dams. See 38 lVLR.S. § 651. However, the Mill Act mentions nothing about issuing
permits. lVIoreover, the Mill Act does not set water levels.4 Looking at the unambiguous
plain meaning of the Mill Act, which neither issues permits nor sets water levet the Court
cannot find that the Section 840(1)(0) exemption applies.
1.A.iii. Whether AquaFortis is "In Control" ofthe Dam
The 'Water Level Act states that the DEP "shall" upon request or petition with
requisite signatures, "conduct an adjudicatory hearing for the purpose of establishing a
water level regime and, if applicable, minimum flow requirements for the body of water
4 In passing, AquaFortis argues in its Reply Brief and in oral argument that the Mill Act is in "direct conflict" with the Water Level Act. Viewed in the context within which they were asserted, these arguments appear to be in response to the DEP's assertion that the Mill Act was not specifically mentioned as an exemption when the Water Level Act was enacted, and therefore the Legislature intended it not to be an exemption. AquaFortis has never cited 38 M.R.S. § 654, which provides for regtilation of water height under the Mill Act. The Court perhape could have been able to find that this was a direct conflict and remanded for findings on the Mill Act, but this issue was not fully deveJoped by AquaFortis and it is thus waived. Bayview Loan Servidng v. Bartlett, 2014 ME 37, CJ[ 15 n.5, 87 A.3d 741 (a party waives a challenge to the propriety of an order by failing to adequately develop the argument in briefing).
8 impounded." 38 M.R.S. § 840(1). After the adjudicatory hearing, the DEP "shall make
written findings and issue an order to the owner, lessee or person in control of the dam
establishing a water level regime for the body of water impounded by the dam and, if
applicable, minimum flow requirements for the dam." 38 M.R.S. § 840(5). AquaFortis
interprets these provisions as granting DEP jurisdiction over the "owner, lessee person
in control of the dam," and claims that it does not fall into one of those categories. PPM
is the Dam's owner and AquaFortis does not lease it, so it claims that the DEP must have
found that it is "in control" of the Dam in order to exercise jurisdiction. The DEP
interprets these provisions as granting it jurisdiction over "the body of water
impounded," and the references to the "owner, lessee or person in control" arc only for
notice and enforcement purposes.
As stated above, if a statute is unambiguous, its plain meaning is followed, and if
the statute is ambiguous, the DEP's interpretation will be upheld unless contrary to the
language of the statute. Section 840(1) states that the DEP shall establish a water level
regime for the body of water impounded. Reading the statute for its plain meaning, the
DEP's interpretation that it gives it jurisdiction over the body of water impounded
appears correct. Even if the statute were ambiguous, that interpretation is reasonable and
not plainly contrary to the statute, and is therefore upheld.
Section 840(5), however, is ambiguous. It states that the water level order is issued
to the owner, lessee, or person in control of the Darn, and that the order must establish
the water level regime for the body of water impounded. This provision could mean that
the DEP has jurisdiction over either the body of water impounded as the physical
property over which the water level is established or against the owner, lessee, or person
in control as the entity to whom it is issued. Neither is an unreasonable interpretation.
9 Given the deference placed on _a n agency's interpretation of the statutes it
administers, and that the DEP's interpretation is not plainly contrary to the language of
Sections 840(1) and 840(5), the DEP's interpretation is upheld. Since it gave notice of the
WLO to PPM, the DEP complied with its interpretation of Section 840. Notice was also
given to AquaForits, but nothing prohibits notice being given to more than just the
"owner, lessee or person in control" of the Dam. As for enforcement, this is a separate
issue that is not on appeal at this time and AquaFortis is required to commence a separate
lawsuit if the DEP attempts to enforce the WLO against it. Therefore, since notice was
given to Pr:tvl as the owner, lessee, or person in control of the Dam, and enforcement is
not ripe for discussion, there is no need for the Court to determine if AquaFortis is the
"person in control" of the Dam at this point.
1.A.iv. Breached Dam
The Water Level Act states that a dam owner need not comply with a water level
order "when the water level fluctuation not permitted by the order was caused by ...
operating failures of the dam or any associated equipment." 38 M.R.S. § 841(2). The Darn
contains a narrow vertical crack, but DEP found in the WLO that the darn is still capable
of impounding water because it meets the statutory definition of a dam. AquaFortis
claims the dam is "breached" and therefore there is no need to comply with \!VLO. The
word "breach" is not used in the Water Level Act, or any other relevant portion of Title
38, yet this argument appears to be made under Section 841(2) and is analyzed as such.
This leads to the question of whether that crack could reasonably be interpreted as
an "operating failure." The DEP's view is upheld if supported by substantial evidence in
the record. There is substantial evidence in the record to support, and AquaFortis
concedes, that the dam can impound water. The crack does not prevent impoundment,
10 but merely diminishes the impounding capacity. Therefore, the DEP could reasonably
find that there was no operating failure, and that Section 841(2) does not apply.
1.B. DEP's Authority to Order or Coerce Repairs (Special Condition 3)
While the issue of whether the DEP can order or coerce dam repairs is moot, since
the DEP has said it will not enforce Special Condition 3, this argument merits a brief
discussion. See Poe v. Ullman, 367 U.S. 497, 508 (1961) (the State's decision not to enforce
a statute deprives the matter of a controversy and "[t]he Court cannot be umpire to
debates concerning harmless, empty shadows."); Doe v. Williams, 2013 ME 24, <[ 14, 61
A.3d 718 ("an issue is moot when there is no real and substantial controversy'').
Both parties cite Molasses Pond to support their perspective. Molasses Pond Lake
Assoc. v. Soil and Water Conservation Comm'n, 534 A.2d 679 (Me. 1987). In this case, the
Law Court determined that under the Water Level Act's predecessor, the Neglected
Dams Act, the DEP' s predecessor, the Soil & Water Conservation Commission5, did not
have the authority to order structural modifications to a dam under 12 M.R.S. § 304(4)6. 7 because there was a separate enforcement mechanism provided in 12 M.R.S. § 306
5 The Neglected Dams Act was repealed in 1983 when the Soil and Water Conservation Commission ("SWCC") was absorbed by the DEP. 38 M.R.S. § 842 evidences this transition of power from the SWCC's regulation of dams under 12 M.R.S. § 304 to the DEP under 38 M.R.S. § 840. Parts of the Neglected Dams Act are substantia11y similar to the Water Level Act. 6 Under the Neglected Dams Act, 12 M.R.S. § 304(4) stated that the SWCC's order "shall, insofar as practicable, require the maintenance of a stable water level, but shall include provision for variations in w.iter level to permit sufficient draw down of such body of water to accommodate precipitation and runoff of surface waters and to otherwise permit seasonal and other necessary fluctuations in water level." This is substantially similar to the current law under the Water Level Act, 38 M.R.S. § 840(5), which states that the DEP's 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.'' 7 Under the Neglected Dams Act, 12 M.R.S. § 306 was entitled "Enforcement" and stated that "The commission, a dam owner, or any littoral proprietor may commence an action to enjoin the violation of any provision of this chapter. The commission may enforce the order by any other appropriate remedy. The
11 allowing the DEP to assess fines for dams that did not comply with a water level order.
Id at 681. Here, under statutes that are substantially similar, the DEP then also does not
have the authority to order structural repairs to the Dam. However, like in Molasses Pond,
the DEP can use fines as an "adequate enforcement mechanism" to ensure compliance
with the WLO. Id. AquaFortis is thus correct that the DEP does not have the authority
to order repairs, but it does have the ability to assess fines for non-compliance.
AquaFortis argues that this is equivalent to the DEP coercing it to make repairs, although
this Court does not view the situation with that connotation.
2. Due Process
In regards to Due Process, AquaFortis argues that the DEP improperly considered
the bathymetric study in issuing the WLO. It also asserts that the DEP did not fulfil its
obligation to establish a water level regime and had no authority to order Special
Conditions 4-7. Lastly, AquaFortis claims bias in the DEP's decision, based largely on
communications between Mr. Fergusson and Ms. Callahan.
2.A. The Bathymetric Survey & "Based on Evidence Solicited at the Hearing''
The Water Level Act states that the DEP shall make its findings and issue a water
level order "[bJased on the evidence solicited at the hearing." 38 M.R.S. § 840(5).
AquaFortis argues that since the bathymetric study was conducted after the Hearing and
not "evidence solicited at the hearing," it cannot be used as a basis for the WLO.
violation of any order of the commission shall be punishable by a fine of not less than $20 and not more than $100. Each day of violation shall be considered a separate offense." This is substantially similar to the current law under the Water Level Act, 38 M.R.S. § 841(3), which is titled "Enforcement" and provides that "The commissioner or any littoral or riparian proprietor may commence an action to enjoin the violation of any provision of this subarticle. The commissioner may enforce any order issued under section 840, subsection 5 or subsection 6 by any other appropriate remedy, including, but not limited to, entering the dam premises to carry out the terms of the order. The violation of any order issued under section 840, subsection 5 or subsection 6, 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."
12 AquaFortis asserts that its lack of opportunity for cross-examination regarding the study
is also violative of its Due Process rights.
Regardless of whether the phrase "based on the evidence solicited at the hearing"
means based solely on such evidence, there is nothing here to indicate that the DEP
considered the bathymetric survey in issuing the WLO. The testimony of Jvir.
Courtemanch at the Hearing can be summarized as follows: DEP Rule 6 C.M.R. 96-587
describes two methods to arrive at recommended water fluctuations. The first is the
' 1 standard alteration," which is a lowering of the water level by 2.0 feet, reducing it in
one-foot increments by two calendar dates. 6 C.M.R. 96-587 § 6(A). This is based on how
most lakes operate and is considered reasonable. The second is an "alternative water
level," which requires examining the specific characteristics of the lake to see if there's
another appropriate range besides the standard alteration. 6 C.M.R. 96-587 § 7. Mr.
Courtemanch stated that the "alternative water level" for the Lake was 2.7 feet. The WLO
called for a 2.0 foot water fluctuation in Special Condition 7. The WLO did not specifically
address the two separate one-foot lowerings by specific dates, but it is still an adoption
of the 2.0 foot standard alteration, which does not depend on the site-specific conditions
of the Lake. As this is an agency's interpretation of the application of its own rule,
supported by substantial evidence in Mr. Courtemanch's testimony, it receives deference.
"In analyzing whether a case is moot, we examine whether there remain sufficient
practical effects flowing from the resolution of the litigation to justify the application of
limited judicial resources." Doe v. Williams, 2013 NIB 24, 114, 61 A.3d 718 (quotation
marks omitted). Since the DEP adopted the standard alteration, which was not site-
specific, there is no evidence that the DEP considered the bathymetric survey, which is
site-specific, in determining the 2.0 foot fluctuations. Therefore, the question of whether
the DEP could properly consider the bathymetric survey is moot because even if the
13 Court were to determine that its consideration was improper, it would have no effect on
the outcome of the WLO.
As for the lack of cross-examination regarding the study, that issue is also moot
because the study was not used. But the Court acknowledges that the opportunity to
comment on the study, in lieu of cross-examination at the Hearing, and the opportunity
to re-open the Hearing record were both adequate substitutes. A party with a substantial
interest in a proceeding has a right to a reasonable opportunity to respond. In re Maine
Clean Fuels, 310 A.2d 736, 745-748 (Me. 1973). However, this need not include cross-
examination if the party is given another way to reasonably present their objections and
state their position. Id. Thus, the opportunity to respond in comments or by re-opening
the record were methods by which AquaFortis's criticisms of the study could be
addressed, so its due process rights were not violated.
2.B. DEP's Obligations Under § 840(5) & Special Conditions 4-7
The Water Level Act requires the DEP to "make written findings and issue an
order ... establishing a water level regime for the body of water impounded by the dam
and, if applicable, minimum flow requirements for the dam." 38 M.R.S. § 840(5).
AquaFortis argues that the WLO's Special Conditions 4-7 do not "establish a water level
regime" therefore the DEP has not fulfilled its obligation under this provision, and
additionally that these conditions are in excess of the DEP's authority.
The term "water level regime" is not defined in the statutes or in case law, so its
meaning is ambiguous. The former Neglected Dams Act provision (see Section 1.B
above) required the order to "establish a normal water level for the body of water
imponnded." 12 M.R.S. § 304(4) (repealed). Clearly the newer term, "water level regime,"
is broader and more general than "normal water level." The DEP interprets "establishing
a water level regime" to include establishing (i) a procedure by which a professional will
14 survey the lake to determine the water level (Sp. Cond. 4t (ii) the allowable fluctuations
from that water level (Sp. Cond. 7), (iii) the professional installment of a gauge by which
to measure the water level (Sp. Cond. 6), and (iv) the parameters of a water management
plan to be set out by the dam owner (Sp. Cond. 5). While the DEP does not specifically
set the height of the water level, thus not setting the height of the fluctuations, and did
not set the specifics of a water management plan, it establishes procedures by which the
dam owners must do so.
Given that the phrase "establishing a water level regime" is undefined and
ambiguous, it is not unreasonable and contrary to the statutory language to interpret this
to allow the DEP to establish procedure by which the water levels are established and
measured. Since the DEP's interpretation of an ambiguous statute which it administers
is given deference as long as the statute does not compel a contrary result and this
interpretation is reasonably consistent with the plain meaning of "establishing a water
level regime," it is upheld.
2.C. Unfairness & Bias in the Investigation and Issuance of the WLO
Agency officials are presumed to act in good faith and be unbiased. New England
Telephone & Telegraph Co. v. PUC, 448 A.2d 272, 279 (Me. 1982). In an agency proceeding,
parties have a right to an impartial presiding officer. 5 M.R.S. §§ 9062, 9063; Sevigny v.
City of Biddeford, 344 A.2d 34, 40 (Me. 1975). While an agency's presiding officer or
employee with authority to take final action cannot have ex parte communications with
parties, other agency employees are not so prohibited. 5 M.R.S. § 9055.
The presiding officer and ultimate decision-maker was Ms. Parent. Ms. Parent did
not have ex parte communications with either party. Ms. Callahan, who was only the
Project Manager, did have ex parte communications with both parties. However, Ms.
Callahan did not have the authority to make final decisions of fact or law, so this conduct
15 At oral argument held by this Court on Feb. 6, 2018, the DEP conceded that
AquaFortis may bring forth an issue that PPM raised below, as long as specific facts
required for the argument are in evidence and PPM could have properly raised it on
AquaFortis's behalf. PPM may have argued there was a Taking of its property rights as
the owner of the Dam. However, AquaFortis does not own the Dam. In fact, since
AquaFortis and PPM do not own any property jointly, any property rights possessed by
PPM over which it argued a Taking are necessarily not the same property rights
possessed by AquaFortis over which it is now attempting to assert a Taking. As there is
no evidence in the record of either AquaFortis or PPM arguing a Taking over
AquaFortis's property rights, this issue is unpreserved for appeal.
CONCLUSION
For the foregoing reasons, therefore, the Water Level Order in Jviatter #L-22585-
36-B-N issued by the Maine Department of Envirorunental Protection dated January 27,
2014 regarding Clary Lake Dam is affirmed and the AquaFortis's Rule SOC appeal is
denied.
The clerk is directed to incorporate this Order by reference in the docket in
accordance with iVI.R. Civ. P. 79(a).
DATED: February 26, 2018
Daniel I. Billings Justice, Maine Superior Court