AUGUSTA — Developers of the Oxford casino have 90 days to prove that the site on Pigeon Hill has sufficient water in its aquifers to supply the business.

Construction, clearing and any other site work not related to studying the groundwater must stop until Black Bear Entertainment proves it has the financial capacity to complete the first phase of the resort casino.

Scott Smith, community development director for Black Bear, said that wasn’t a major concern. Black Bear would be able to demonstrate it had the money within days, he said.

After a long appeal hearing before the Maine Board of Environmental Protection, the board agreed to pass a staff recommendation with two amendments. Staff recommended the board stop construction until Black Bear could demonstrate it had the financial capacity to build the first phase.

One amendment was that Black Bear must prove there is sufficient water at the site and submit the data to the Maine Department of Environmental Protection within 90 days. The other stipulates that in future phases of the casino, the baseline for analysis on environmental effects must be how the area was before development of Phase 1.

The appeal was filed by the Androscoggin River Alliance and people living near the site of the proposed casino.

For Steve Hinchman, a lawyer for the Androscoggin River Alliance, the appeal validated his concerns but didn’t end the way the environmental group had hoped.

“The board recognized there were major gaps in the application,” he said after the hearing.

“At the same time, the board said the project can supply the missing water data at the same time they’re continuing construction,” Hinchman said. “We think that’s putting the cart before the horse.”

The presence of sufficient groundwater was one of several conditions in the original DEP permit. If the site was found not to be able to supply the 22,000 gallons per day the first phase of the casino is projected to need, the casino couldn’t open.

Board members agreed with Hinchman’s assertion that the permit application didn’t prove sufficient groundwater or that the casino’s use wouldn’t affect the wells of people living nearby.

Black Bear lawyer Jeffrey Talbert said conditions are legal in permitting. Black Bear partner Rob Lally told the board Black Bear was confident the site had sufficient groundwater and was unafraid of the risk.

In case the groundwater wasn’t sufficient, Lally said, the town of Oxford would allow Black Bear to pay to connect to the town water line.

But Susan Lessard, chairwoman of the BEP, said she couldn’t let the permit go without sufficient information indicating groundwater. Connecting to the town’s supply would be mitigation of environmental impact, not the absence of impact, she said.

“I’m struggling for a way to say there’s no impact when there’s no information,” Lessard said.

Hinchman said he was disappointed that the board allowed site work to continue before water tests were done.

“There’s not much question the law says you have the data before you get the permit, but the board was in the impossible position of saying no,” Hinchman said. “In this economy, they likely followed their gut instead of the statute.”

Hinchman also wanted the board to allow a public hearing on the groundwater data, a step the board decided was unnecessary.

“All my clients who have wells in the area, they won’t see the data until next fall when the construction, the ground work, is almost done,” he said.

Hinchman told the board he believed the permit was unduly rushed. He pointed to memos showing a note to “rush” the permit and suggested the permit was given special treatment.

In February, the DEP set up a panel to make independent decisions on Main-Land Development permit applications, to avoid conflicts of interest with former commissioner and Main-Land owner Darryl Brown.

Hinchman said a memo from the deputy commissioner allowing only one panel member to read and approve the permit shows the DEP was trying to rush the permit.

DEP Deputy Commissioner Patricia Aho, who sent that memo, denied there was any wrongdoing. The memorandum was meant to clarify the rules, due to an extended illness of one of the panel members.

Lessard said she didn’t believe the DEP engaged in any misconduct. “I’m not a conspiracy theorist,” Lessard said. “I don’t care what it said on the front of an application.”

The permit has been sent back to DEP staff to add the amendments.

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