SUMMARY OF THE HISTORY OF THE ALLAGASH WILDERNESS WATERWAY


The Allagash River is protected under both state and federal laws.

On May 11, 1966, the Maine Legislature passed the Allagash Wilderness Waterway statute (AWW Statute). It protected the Allagash as a wilderness river, contingent upon passage of a state bond “to develop the maximum wilderness character of the Allagash Waterway.”

On November 8, 1966, by a margin of 68% to 32%, Maine citizens approved a $1.5 million bond “to Develop the Maximum Wilderness Character of the Allagash Waterway.”

On April 14, 1967, the U.S. Department of the Interior granted Maine an additional $1.5 million from the federal Land and Water Conservation Fund, for acquisition and development of the Allagash Wilderness Waterway “in conformance with the conditions of” the AWW Statute and the bond.

Concerned that the protections provided by the state would be insufficient to preserve the Allagash wilderness in perpetuity, Senator Edmund S. Muskie proposed an amendment in the National Wild and Scenic Rivers Act of 1968 (WSRA) that would add stronger safeguards. He called his amendment a “compromise,” for it combined permanent federal protection with permanent state administration – a hybrid. The WSRA was passed in 1968 with Muskie’s amendment.

The WSRA defines Wild rivers as “generally inaccessible except by trail, with watersheds or shorelines essentially primitive…These are vestiges of primitive America.”

Pursuant to the Muskie amendment , Governor Kenneth M. Curtis petitioned, in 1970, for the federal designation: “As Governor of the State of Maine, I do hereby request that…the Allagash…be designated a ‘Wild River’ under this Act….for permanent administration [by the state] as a Wild River Area.”

In his application to the Secretary, Governor Curtis agreed to the restrictions inherent in a Wild river classification: “It is my belief that the [AWW Statute] is in full accord with the National Act and the [1970] guidelines developed by your Department, and the Department of Agriculture,” which his agency representative had “examined carefully.” The 1970 guidelines referred to specify: ”’Generally Inaccessible’ means there are no roads or other provisions for overland motorized travel within a narrow incised valley, or if the river valley is broad, within ¼ mile of the riverbank.”

In the July 17, 1970 Federal Register, Interior Secretary Walter J. Hickel granted the state’s request, classifying the Allagash as Wild, the most restrictive category. The Allagash Wilderness Waterway, encompassing 92.5 river miles, 3/10% of Maine’s river mileage, became America’s first federally protected-state managed Wild river.

At the state’s request, the Secretary permitted two road accesses, at Telos Landing and Twin Brooks, but excluded a third state-proposed access at Umsaskis Thoroughfare.

The Allagash designation and/or associated binding agreements require the state to: 1) “protect and enhance” the river’s Wild characteristics and its “immediate environments”; 2) limit roads and vehicular accesses; 3) forbid inappropriate dam construction; and 4) administer the river permanently in its assigned classification, i.e., Maine must prevent the river’s decline to the lesser classifications of Scenic or Recreational, which allow more vehicular access and more development generally.

This dual protection for the Allagash, under both state and federal law, was the result of much debate and compromise over the future of the Allagash. The federal government had proposed making the river a national recreation area. The state had proposed very weak, voluntary protections.

In creating a federally protected, state managed partnership, Senator Muskie’s Allagash thinking was this: ”[T]here can be no room for misunderstanding….[B]oth Secretary [of the Interior Stewart] Udall and I have felt from the beginning that the key issue on the Allagash is the preservation of the riverway as a free-flowing stream in a primitive and, insofar as possible, unspoiled forest area. To be meaningful, such preservation must be in perpetuity.”

In spite of this dual protection, between 1970 and 2000 the Department of Conservation (DOC) repeatedly violated the WSRA by improperly developing the Waterway, and failing to limit road accesses. DOC has so far authorized and/or allowed at least fourteen automobile accesses, a 700-percent expansion, the latest at John’s Bridge and Finley Bogan. Each access beyond the permitted two is a violation.

DOC has also allowed sixteen riverside parking lots, of which at least eleven violate the Act because they are affiliated with impermissible accesses. The legal status of the three other lots is unknown at this writing.

In sum, twelve road accesses and eleven parking lots exist above what the Secretary affirmed under the WSRA and DOC agreed to. DOC has baldly violated the “generally inaccessible except by trail” imperative.

In addition, from 1986 to 1999, DOC authorized at least 29 miscellaneous developments within the ¼-mile corridor, including some of the aforementioned accesses. Among the 29, some other-than-access developments doubtless breach the Act because they may not meet its “essentially primitive” standard for riverside constructions.

DOC’s actions downgraded the Allagash from de jure Wild (“generally inaccessible except by trail”), to de facto Scenic (“accessible in places by roads”) or Recreational (“readily accessible by road”). Indeed, DOC’s 1999 Allagash Plan dismisses the Wild classification outright, saying the river “best fits a combination of‘scenic’ and ‘recreation’ designations.” Such downgradings violate the Act’s “protect and enhance” imperative. Because these actions occurred at all, and continue today, they have shattered the Act’s mandate that the river shall be kept Wild in perpetuity, a major goal of Senator Muskie’s involvement.

DOC’s actions have violated Senator Muskie’s original intent and repudiated the directives Congress embedded in the WSRA. DOC has also broken faith with its chief executive, Governor Curtis, by ignoring the binding agreements he made when he lawfully petitioned for and received the designation and its permanent Wild classification. DOC is wholly without authority to do so.

Finally, DOC failed, in 1997, to obtain from the U.S. Army Corps of Engineers a permit required under the federal Clean Water Act for a new dam at Churchill Lake, but built it anyway. Completed in 1998, the concrete industrial-style dam replaced a timber crib, logging-era motif dam built in 1968 that Secretary Hickel had grandfathered under the WSRA for its “historic significance.”

The Department of Conservation has now applied for an after-the-fact permit. Before granting such a permit, the Corps is required to obtain National Park Service approval under Section 7 of the WSRA. On February 7,2001, the National Park Service wrote the Corps: “We are concerned that the project as constructed may not be consistent with the classification as a ‘wild’ river area….”

The Environmental Protection Agency also wrote the Corps on January 3, 2001: “If the Corps is unable to issue [an after-the-fact] permit…EPA may reevaluate the need for an enforcement action [against DOC] for injunctive relief and/or penalties.”

In addition, DOC’s state permit for the dam, issued by LURC in 1997, is void because it is conditioned on a valid federal permit. LURC has opened an investigation.

Without permits Churchill Dam is an illegal structure under the Clean Water Act, the WSRA and LURC rules. Federal fines can reach $25,000 a day ($9.1 million a year) and state penalties $10,000 a day ($3.6 million). Fines are retroactive to when construction began.

The newly built dam was not grandfathered, has no historic significance, and impairs the outstanding historic values for which, in part, the Allagash was designated. The structure violates the WSRA’s core purpose: “[T]he established national policy of dam and other construction needs to be complemented by a policy that would preserve other selected rivers…” The dam defies the federal guidelines to which the state agreed: “New structures and improvement of old ones [are] prohibited if not in keeping with overall objectives.”

A state statute, a state bond, two federal acts, precise federal guidelines, a federal matching grant, an Interior Secretary’s notice, a Governor’s pledge and a Senator’s compromise were all intended to ensure that the Allagash is managed as a wilderness river. It is time for the state to follow the existing laws, begin to rebuild the public trust and show that it can and will permanently enhance and protect our only designated Wild river, a minuscule three-tenths percent of Maine’s total river mileage.