Hi Chris,

The NSGLC would be happy to help you look into this as it sounds like it's an issue of first impression in the state. We'll be in touch soon to get a little more information about project specifics once we do some preliminary research into the basics. I do think it will make a difference that Maine is a low-water state, as private ownership of tidelands may complicate things.

Thanks,
Stephanie

From: Christopher Bartlett <[log in to unmask]<mailto:[log in to unmask]>>
Reply-To: SG Renewable Energy <[log in to unmask]<mailto:[log in to unmask]>>
Date: Tuesday, March 19, 2013 12:54 PM
To: "[log in to unmask]<mailto:[log in to unmask]>" <[log in to unmask]<mailto:[log in to unmask]>>
Subject: Re: Legal Questions for NSGLC

Hi Jim,

I should have been clearer in explaining this situation.  The developer only has a preliminary permit from FERC to study the feasibility of their proposal.  There are lots of knowledge gaps that need to be answered before state and federal agencies would issue permits for this project. This legal question pertaining to riparian ownership is the first time that this has been asked in Maine, so I thought it was pertinent for discussion here.

 Chris

On Tue, Mar 19, 2013 at 1:38 PM, James G Wilkins <[log in to unmask]<mailto:[log in to unmask]>> wrote:
If I may add my 2 cents. I find it odd that the Maine AG would have no answer to this question. First, I assume that the developer has gotten the Corps permit that is undoubtedly required for this obstruction to navigable waters. Secondly, Maine's Coastal Zone Management program in all likelihood has regulations concerning altering the flow of tidal waters and last Maine probably has common law rules regarding alteration of drainage easements which is what this sounds like. We deal with these kind of issues quite a bit in Louisiana.

Jim Wilkins

On Mar 19, 2013, at 12:01 PM, Christopher Bartlett wrote:

Hi Stephanie,

A legal question arose at an agency consultation that I attended last week, which is in need of an answer.  A developer is proposing to install a tidal barrage across the mouth of a bay in eastern Maine.  The proposed facility operations would cause the tidal cycle to be delayed by 1.5 hours inside of the bay and extend the high tide for 1 - 1.5 hours inside the bay.  The Maine Department of Environmental Protection (DEP) consulted with their Attorney General's office and asked if these tidal changes would require easements from property owners of the intertidal zone?  Maine is one of five states where property ownership extends to mean low water in the intertidal zone.  The AG's office did not have an answer to this question, so DEP instructed the developer to investigate this with their own lawyers and come back with a proposal for review.

We currently have two separate developers proposing tidal barrages in eastern Maine and this question is pertinent for both cases.

I welcome guidance on this matter that I could pass along to Maine DEP.

Chris